By completing the registration process either online or via an online order form (the “Registration Process”) or by downloading, installing, or using any Services (defined below), “You” or "Your" (defined as you, your company, and any of your employees, representatives, users, and agents), agree to be bound by the terms of this End User License Agreement (the “Agreement”) with LunaBooster ("LunaBooster"). LunaBooster will provide to You the Services under the terms of this Agreement.
“APIs” mean LunaBooster proprietary interface elements, application program interfaces and/or software development kits, and the related documentation, data, code, sample applications and materials.
“Confidential Information” means private or confidential information of the other party, including, but not limited to, trade secrets, computer programs and code, scripts, algorithms, features and modes of operation, inventions (whether or not patentable), techniques, processes, methodologies, schematics, testing procedures, software design and architecture, design and function specifications, analysis and performance information, documentation, details of its products and services, as well as names and expertise of, and information relating to, vendors, employees, consultants, customers and prospects, know-how, ideas, and technical, business, pricing information, financial and marketing information and strategies and any other information that the recipient reasonably should know is confidential.
“Content” means an engagement that presents information or offers to targeted visitors in the form of text, images, video or similar.
“Effective Date” means the date You completes the Registration Process or downloads, installs, or begins using the Services.
“Initial Term” means the term set forth during the Registration Process or download process, as applicable, or, if not specified, a term commencing on the Effective Date and ending on the last day of the same month thereafter.
“Labs Applications” mean experimental applications and/or plug-ins made available to You by LunaBooster on a test basis.
“LunaBooster Intellectual Property” means the Services and software (including without limitation any materials or code provided as part of the professional services), trademarks and icons, technologies, information, trade secrets, know-how, intellectual property, information and data generated by LunaBooster or LunaBooster’s systems, whether pre-existing, or created after the Effective Date, including any modifications, enhancements and derivatives thereof (including, without limitation, metrics, data and information generated by such Services and software).
“Renewal Term” means consecutive renewal terms equal to the length of the Initial Term or longer if otherwise agreed by the parties.
“Services” mean any LunaBooster hosted services, applications, mobile applications or features, APIs (defined herein), professional services, products and/or content.
“Term” means the Initial Term and any Renewal Terms.
“Third-Party Offerings” mean plug-in or add-on third party services or applications that integrate, interact or interoperate with the Services.
So long as You are in full compliance with this Agreement, LunaBooster grants to You during the Term a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to: (i) access and use the Services provided by LunaBooster solely for purposes of communicating with, engaging with and delivering Content to end users; and (ii) use any professional services deliverables provided by LunaBooster solely in connection with the applicable hosted service. Use of the APIs is also governed by the terms on GitHub or any other repository hosting service. The Services may utilize certain open source software. Copyright information for some of the open source licenses may be found in the README file made available with the mobile feature or application. LunaBooster shall retain all right, title, and interest in and to LunaBooster Intellectual Property, including without limitation all ownership and proprietary rights. You acknowledges and agrees that Your rights in LunaBooster Intellectual Property are solely as described in this Section 2 and do not include any right of ownership in any of LunaBooster Intellectual Property. You are not permitted to change or modify LunaBooster Intellectual Property. Without limiting the foregoing, in the event of any change, modification, extension or correction thereof, You hereby irrevocably assigns to LunaBooster any and all rights it may be deemed to have in any such change, modification, extension or correction, and agrees to execute all documents necessary to implement and effect such assignment.
You shall not: (a) modify, decompile, disassemble, reverse engineer or misappropriate (or cause or permit any other party to do so) the Services; (b) sell, resell, rent, sublicense or lease any intellectual property or Services of LunaBooster to third parties; (c) use the Services to store or transmit malicious code; (d) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; (e) attempt to gain unauthorized access to the Services or their related systems or networks; (f) alter, copy, move or delete any tags or code placed as part of the Services, except as provided in Section 5; (g) place tags on website pages not pre-approved by LunaBooster in writing; (h) misappropriate any of LunaBooster’s software, technology, or other services, or create competing products or services (or permit, enable or assist any third party to do so); or (i) use the Services to store or produce telephone numbers to be called, using a random or sequential number generator, and dial such numbers. LunaBooster may use information about user activity on You and third-party websites, applications and other platforms, systems and products to, among other things, provide, enhance and secure the Services (and related products and services). You are responsible for all activity on its account and shall not share its login information with any third party.
You will pay all fees as specified in the Registration Process or download process, as applicable, in advance. Except as specified herein, payment obligations are non-cancelable and fees paid are non-refundable. All fees are exclusive of any applicable taxes for which You are responsible. Customers are invoiced and must remit payment before services are provided. Payments by credit card are on a pre-paid basis only, for the timeframe specified in the Registration Process or download process, as applicable. You are responsible for providing complete and accurate billing and contact information and notifying LunaBooster of any changes. If credit card charges for the Services are denied for any reason, Your use of the Services will be terminated without notice. You will be responsible for all costs incurred by LunaBooster for collecting overdue amounts, including legal fees and collection agency fees. LunaBooster may increase or modify fees for each Renewal Term without notice. If You purchases an upgraded package at any time during the Term, the upgrade remains in effect for the remainder of the Term and any Renewal Term(s). You may downgrade its purchased package only by notifying LunaBooster at least 90 days prior to the expiration of the Term.
From time to time, LunaBooster may offer Labs Applications for use with the Services. This Section 6 will apply if You purchase, receive, access or otherwise uses, directly or indirectly, any Labs Applications. Your rights related to Labs Applications shall commence upon the effective date of the applicable Labs Application order form and automatically terminate upon the earlier of: (a) expiration or termination of this Agreement; (b) 1 month from the effective date of the applicable Labs Application order form (unless the parties agree to a longer term or renewal term in writing); or (c) receipt of notice of termination. Labs Applications may be discontinued at any time, with or without cause.
ALL LABS APPLICATIONS ARE PROVIDED ON AN AS-IS BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR OBLIGATIONS ON LUNABOOSTER BEHALF. LUNABOOSTER DISCLAIMS ALL WARRANTIES AND CONDITIONS REGARDING SUCH LABS APPLICATIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. You assume full responsibility for any damages, losses, costs or harms arising from its use or inability to use Labs Applications and/or the performance or non-performance of such Labs Applications, and, to the extent permitted by law, LunaBooster hereby disclaims all liability regarding the foregoing.
Each party understands and agrees that, in connection with this Agreement, a party may have had or gain access to or may have been or be exposed to, directly or indirectly, Confidential Information of the other party. The recipient of such Confidential Information agrees to hold and treat all Confidential Information of the discloser in confidence and shall use at least reasonable care (but in no event less than the same degree of care as the recipient uses to protect its own Confidential Information of a similar nature) to prevent disclosure of Confidential Information. Each party may disclose Confidential Information of the other party, without such party’s prior written consent, to third parties with a legitimate need to know who are bound by similar written confidentiality obligations. If Confidential Information is required to be disclosed pursuant to applicable law, regulation or court order, the recipient must provide prompt advance notice thereof, to the extent legally permissible, to enable the discloser to seek a protective order or otherwise prevent such disclosure. The recipient shall not use the discloser’s Confidential Information for purposes other than to carry out its obligations under this Agreement. Each party acknowledges that unauthorized disclosure of the other party’s Confidential Information may cause irreparable harm to the other party and would entitle the other party to seek injunctive relief upon disclosure or threatened disclosure, in addition to any other remedies at law to which the party may be entitled.
If a third party claims against LunaBooster that: (a) Your intellectual property or content provided to LunaBooster infringes such third party’s intellectual property right or violates such third party’s protected right; (b) the third party has been damaged by an act or omission by You in breach of this Agreement; or (c) the third party has been damaged by Your use of the Services, You shall defend, indemnify and hold LunaBooster harmless from and against such claim(s) at Your expense and shall pay all of LunaBooster’s costs, damages, and legal fees arising out of or relating to such claims. If LunaBooster deems necessary, it may engage separate counsel at its own expense.
EXCEPT FOR YOUR VIOLATIONS OF SECTION 2, 3, OR 7 OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE, REGARDLESS OF THE CAUSE OF ACTION, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR THE SERVICES. IN NO EVENT SHALL LUNABOOSTER BE LIABLE FOR: (A) ANY CAUSE OR CLAIM WHATSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT IN EXCESS OF THE AMOUNTS LUNABOOSTER HAS BEEN PAID HEREUNDER DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE; (B) ANY ACTS OR OMISSIONS OF THIRD PARTIES; OR (C) ANY THIRD PARTY SERVICES, CODE, TECHNOLOGY, APPLICATIONS, POLICIES, PROCEDURES, OR PRODUCTS. IF APPLICABLE LAW DOES NOT ALLOW ONE OF THE ABOVE LIMITATIONS OF LIABILITY, SUCH LIMITATION WILL BE DEEMED MODIFIED SOLELY TO THE EXTENT NECESSARY TO COMPLY WITH APPLICABLE LAW.
You represent and warrants that: (a) You have the right to enter into this Agreement; (b) You are aged 18 or over; (c) this Agreement does not and shall not during the Term conflict with any other agreement entered into by it; (d) use of the Services (or any results of the Services, including, but not limited to, the collection of any customer data) by You will not violate any applicable law; and (e) it owns (or has been duly licensed to use) all rights in its brands required in order to grant the licenses granted herein. THE SERVICES ARE PROVIDED AS-IS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES RELATED TO THIS AGREEMENT AND THE SERVICES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
You acknowledge that mobile applications may automatically download and install updates, upgrades, and additional features and that LunaBooster may not support previous versions. Certain information or data relating to such mobile features or applications, such as messaging transcripts, may be stored locally on the mobile device used to access the Services. You are solely responsible for the management and deletion of such locally stored information.
You agrees that if it elects to use Short Messaging Service (“SMS”), You will comply with any regional, national and/or international consumer consent and/or opt-in and opt-out requirements, industry best practices and all laws applicable to its business use of SMS, including, but not limited to, obtaining prior and maintaining valid consumer consent to receive SMS messages.
The mobile features or applications are not intended to provide telecommunications services, and You may not use the mobile features or applications in any country that would deem LunaBooster a telecommunications provider or a regulated entity as a result of the use of the mobile features or applications in such country. LunaBooster reserves the right to refuse to allow a user to open an account or to limit the number of accounts a user can establish on its mobile applications, at its sole discretion.
You agree that it must provide at its own expense the equipment, mobile devices, Internet connection and/or service plans to access and use the Services. LunaBooster does not guarantee that the Services can be accessed on all devices or wireless service plans or that they are available in all geographic locations. You acknowledges that when using mobile features or applications, wireless carriers may charge fees for data, messaging and/or other wireless access. YOU ARE SOLELY RESPONSIBLE FOR ANY COSTS INCURRED TO ACCESS THE SERVICES FROM MOBILE DEVICES.
If You use your own or third-party code, applications, services or technology in connection with its use of the Services, LunaBooster will not support or be responsible for such code, applications, services or technology. If You chooses to install, access or enable a Third-Party Offering, You agrees that LunaBooster may share with and receive from the third-party provider certain messaging and other data as needed for the interoperation or integration of such Third-Party Offering and that the third-party provider’s use of such data is governed by Customer’s separate agreement with such third-party provider. Third-Party Offerings are not maintained, monitored, tested, controlled, endorsed or reviewed by LunaBooster, are governed by their own terms and conditions, and are not included within the definition of Services under this Agreement. Third-Party Offerings may be discontinued at any time, with or without cause. For the avoidance of doubt, in no event shall LunaBooster be required via the integration to permit, directly or indirectly, misuse of a party’s data or other intellectual property.
You assume full responsibility for any damages, losses, costs or harms arising from the use of or inability to use such Third-Party Offerings. With respect to Your or third parties’ technologies or services used or integrated with the Services (including Third-Party Offerings), You or the applicable third party will be and remain responsible for their respective services, technologies and personnel, and all matters related thereto. LunaBooster does not monitor or control the service limitation, suspension or termination of such technologies and/or services and specifically disclaims any liability with regard to such service limitation, suspension or termination. You acknowledge that if it wishes to turn off or stop using certain Third-Party Offerings, You may be required to contact the third-party provider to do so. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE EXTENT PERMITTED BY LAW, ALL SUCH THIRD-PARTY OFFERING SERVICES ARE PROVIDED "AS IS" AND LUNABOOSTER HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND OTHER TERMS AND CONDITIONS WITH REGARD TO SUCH THIRD-PARTY OFFERING SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
In some countries, there are restrictions on the download and use of software, products, and services. You are responsible for ensuring that it is legally allowed to use the Services where it is located and operates. You represent and warrant that (i) it is not located in nor will it export or re-export the Services into (or to a national or resident of) a country that is subject to a restriction or embargo issued by a national government or similar body or that has been designated by a national government or similar body as a terrorist-supporting country; and (ii) it is not listed on nor will it export or re-export the Services to a national or resident listed on any list of prohibited or restricted parties issued by a national government or similar body.
This Agreement, together with the Registration Process and/or download process, as applicable, contains the entire agreement of the parties and supersedes any and all previous agreements with respect to the subject matter hereof, whether oral or written. Any modifications to this Agreement appearing on Your order or other supplements shall be null and void. All notices must be sent in writing by personal delivery or by certified mail, return receipt requested, to the following addresses: If to You, to the address LunaBooster has on file. If to LunaBooster, to [email protected], Attention: General Counsel. The effective date of such notice shall be either upon personal delivery or 5 days following the date of mailing. The above addresses may be changed by giving prior written notice as described herein. This Agreement shall be binding on and inure to the benefit of the parties, their respective successors and permitted assigns. The parties are independent contractors. LunaBooster shall not be liable for any delay or failure in the performance of this Agreement or for loss or damage of any nature due to disruption or unavailability of communication facilities, utility or internet service provider failure, acts of war, terrorism or vandalism, lightning, fire, strike, unavailability of energy resources or any other causes outside its reasonable control. LunaBooster may use Your name, brands and trademarks in connection with or relating to the Services and for marketing and promotional purposes. LunaBooster MAY POST AN UPDATED AGREEMENT ON THE LunaBooster WEBSITE AT ANY TIME, AND, TO THE EXTENT PERMITTED BY LAW, SUCH MODIFICATIONS WILL BE EFFECTIVE IMMEDIATELY AND (IF LEGALLY PERMITTED), SHALL APPLY RETROACTIVELY. YOU AGREE TO THE MODIFIED AGREEMENT BY CONTINUING TO USE THE SERVICES. This Agreement shall be governed by the laws of the United Kingdom and exclusive venue shall be in the courts of England and Great Britian. Each party expressly waives its right to a trial by jury. Sections 2, 4-10 and 14 shall survive the expiration or termination of this Agreement.
This Agreement commences on the Effective Date and continues for the Initial Term, unless terminated earlier pursuant to this section. Regardless of activation date, either party may terminate this Agreement upon written notice: (i) at least 30 days prior to the expiration of the Term (or in accordance with the notice period specified in the Registration Process or download process, as applicable); or (ii) if the other party commits a material breach of this Agreement that has not been cured within 30 days of written notice of such breach. LunaBooster may terminate this Agreement immediately if You breaches Section 2, 3, or 4. You shall remove all materials, tags and code placed on Your website and in Your mobile application as part of the Services within 24 hours of termination or expiration of the Agreement. You remain responsible for the fees for the remainder of the then-current Term, which LunaBooster shall bill in one charge immediately upon termination. Termination requests must be made in writing via chat with the LunaBooster team and are not accepted by phone or by email.