Agreement Terms & Conditions

The proposed agreement between Remsense Inc., a South Carolina corporation (“Luma”) and “Client” (each a “Party” and collectively, the “Parties”), would include the following terms and conditions (collectively, the “Agreement”).

Confidentiality

During the term of this Agreement and at all times thereafter, the Parties shall keep the Confidential Information strictly confidential. Without the prior written consent of the other Party, each Party to this Agreement agrees that it will not disclose any Confidential Information to any third Party without a binding nondisclosure agreement, or equivalent, and will not use any such information to the detriment of the other Party.

For purposes of this Agreement, “Confidential Information” will mean information belonging to either Party, and copies or compilations thereof, disclosed to or accessed by the other Party in connection with this Agreement, that is designated in writing by the disclosing Party as “Confidential” or which would reasonably be understood as confidential at time of disclosure, and includes technical terms, exhibits, and other proprietary information.

Notwithstanding anything in this Section to the contrary, information will not be deemed Confidential Information if such information (a) was known to the receiving Party prior to its receipt under this Agreement and not under any other obligation of confidentiality, or (b) becomes publicly known without breach of this Agreement, or (c) was already in the public domain at the time of disclosure to the other Party. Additionally, if the receiving Party is required by compulsion of law to disclose Confidential Information of the disclosing Party, the receiving Party will give prompt written notice to the disclosing Party (unless legally prohibited from doing so) and will reasonably cooperate with the disclosing Party to protect the Confidential Information from public disclosure.

Intellectual Property

In preparing the Work Product for this effort, Luma will use a proprietary software design process (“Luma Design Process”) including certain proprietary design documents and templates (“Luma Design Documents”). The Work Product may also incorporate Luma’s proprietary, pre-existing software (“Luma Proprietary Software”). Luma will also provide Luma’s OnDemand eNugget® Platform (the “eNugget® Platform”) as an online service, if such services are purchased by Client in this Agreement. The Luma Design Process, Luma Design Documents, Luma Proprietary Software and the eNugget® Platform will remain exclusively the property of Luma and Luma Confidential Information. Luma retains all intellectual property rights therein.

Client will maintain exclusive ownership of, and assumes all responsibility for, all Client-supplied logos, brands, agreements, documents, forms, notices, consents, disclosures or other communications data, information or files of any type that are provided to Luma or otherwise uploaded onto the eNugget® Platform (collectively, “Client Data”) in order to allow Luma to perform its obligations under this Agreement. Client will maintain security and safety measures in the transfer of Client Data to Luma. Client grants Luma the right to process, transmit, store and disclose the Client Data to perform this Agreement. Luma shall not use, or willingly allow, cause or permit such Client Data to be used for any purpose other than the performance of Luma’s obligations hereunder without the prior written consent of the Client. Luma may remove from the eNugget® Platform any Client Data that Luma reasonably believes (i) is in violation of law, (ii) becomes subject to any third- party claim (see below), or (iii) otherwise subjects Luma or the eNugget® Platform to unreasonable risk or liability.

By providing Client Data to Luma or uploading Client Data to the eNugget® Platform, the Client certifies that (a) the Client either owns the Client Data and all intellectual property rights therein or is authorized by the owner to provide such Client Data to Luma, (b) the Client has provided notice to and obtained all necessary consents of the data subjects for the transfer and use of Client Data to and by Luma, and (c) the Client agrees to defend, indemnify, and hold harmless Luma from any claim of a third party with respect to the Client Data, including claims of intellectual property infringement, misappropriation or invasion of privacy. Client agrees that Luma may create, collect, use, and disclose, “de-identified” data or “aggregate consumer information” (as each such term is defined in the California Consumer Privacy Act) from the use of the eNugget® Platform to analyze and improve Luma’s products and services, to monitor Client’s use of Luma’s products and services and for benchmarking, analytics, and other business purposes permitted by law. All data collected, used, and disclosed will be in aggregate form only and will not identify Client, its Users (see 4.3 below), or Client Data.

Reservation of Rights

Reservation of Rights. Luma expressly reserves all rights, title and interest (including without limitation all Intellectual Property Rights) in or to the Luma Software (defined below) and Documentation. No rights or licenses to any Luma Software or Documentation (whether expressly, implicitly, by way of estoppel or otherwise) are granted to Client, except to the extent expressly provided for in this Section.

Restrictions

With respect to Open Source Components, and except to the extent as expressly otherwise permitted by this Agreement, Client shall not, and shall not permit any other person or entity to: copy the “Luma Software” (defined below) or Documentation, in whole or in part, with exception for training content; modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of the Luma Software or Documentation; rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Luma Software (defined below) or Documentation to any third-party; without written consent from Luma.

Client shall not, and shall not permit any other person or entity to: reverse engineer, disassemble, decompile, decode, or adapt the Luma Software (defined below), or otherwise attempt to derive or gain access to the source code of the Luma Software (defined below), in whole or in part; bypass or breach any security device or protection used for or contained in the Luma Software (defined below) or Documentation; remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, terms of the documentation, warranties, disclaimers, or intellectual property rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy of the Luma Software or Documentation; use the Luma Software (defined below) or Documentation in any manner or for any purpose that violates any applicable law;

Client shall not permit any other person or entity to: use the Luma Software (or any component thereof) or Documentation for purposes of: (i) benchmarking or competitive analysis of the Luma Software (or any component thereof); or (ii) developing, using, or providing a competing software product or service.

As used in this Section, the term “Luma Software” means, collectively, the Luma Software, eNugget® learning content and the eNugget® Platform, and the API and includes, as applicable, any portion thereof.

eNugget® Platform

If such services are purchased by Client in this Agreement, Luma will provide the eNugget® Platform as an online service accessible to Client’s Administrators and Signers, subject to this Agreement. An “Administrator” is a natural person registered by Client to use the eNugget® Platform on Client’s behalf. Administrators must be identified by a unique email address and user-name credential. Two or more persons may not share the same Administrator credentials. Administrators may invite natural persons to use the eNugget® Platform to review and/or execute one or more documents or otherwise receive training (each a “Signer” and, collectively with Administrators, Client’s “Users”).  Client and its Users may access and use the eNugget® Platform solely for Client’s internal business purposes in accordance with this Agreement. Client is responsible for all acts and omissions of its Users and shall ensure that Users maintain the security and confidentiality of all access credentials. Luma may suspend or terminate any User’s access to the eNugget® Platform if Luma reasonably believes such User’s continued access subjects Luma or the eNugget® Platform to unreasonable risk or liability. Client and Users shall not, and shall not permit any entity or natural person to: (i) introduce into or deliver into the eNugget® Platform any virus, malware or other data or code that is invalid, illegal or that is intended to or does cause data loss or other damage to data (including Client Data); or (ii) interfere with or disrupt the integrity, operation or performance of the eNugget® Platform or otherwise interfere with others’ use of the eNugget® Platform, including by means of uploading onto the eNugget® Platform any harmful computer code or code designed to circumvent security operations of the eNugget® Platform.

TCPA and User Consent

Client and Users will provide to Luma Client Data consisting of email addresses, telephone numbers and other contact information for Users. Client acknowledges that, in performing its obligations under this Agreement, Luma will telephone Users, send Users text messages, or otherwise contact Users. Client warrants that the contact information provided to Luma is true and correct, and Client has provided notice to, and obtained all necessary consents of, Users for the transfer and use of User contact information to and by Luma as contemplated by this Agreement, including and not limited to permission for Luma to call or text message mobile/cellular telephone numbers. Client certifies that Luma may rely on such User contact information as provided by Client or any User.

Security Measures

The Luma eNugget® Platform may contain technological measures designed to prevent unauthorized or illegal use of the Luma the eNugget® Platform. Client acknowledges and agrees that: (i) Luma may use these and other lawful measures to verify Client’s compliance with the terms of this Agreement and enforce Luma’s rights in and may deny any individual access to and/or use of the eNugget® Platform, if Luma in its sole discretion, believes that person’s use of the the eNugget® Platform would violate any provision of this Agreement, or create a security risk; Luma and its representatives may collect, maintain, process and use diagnostic, technical, usage and related information, including information about Client’s computers, systems and software, that Luma may gather periodically to improve the performance of the eNugget® Platform to develop improvements or enhancements to the eNugget® Platform.  This information will be treated in accordance with the Luma’s privacy policy.

Technical Support

Availability. Subject to, The Luma eNugget® Platform (and the API) will be made available pursuant to the provisions of the Service Level Agreement attached hereto as Attachment (the “SLA”)

Emergency Interruption. The eNugget® Platform may be interrupted or suspended due to certain conditions or reasons beyond Luma’s direct control, including but not limited to (i) emergency conditions experienced by the eNugget® Platform, (ii) connectivity/carrier interruption, and (iii) any Force Majeure event described below, in each case which shall not count towards such uptime calculation.

Scheduled Maintenance. Client’s use of the eNugget® Platform may be interrupted due to scheduled maintenance by the eNugget® Platform or its third-party service providers, which shall not count towards such uptime calculation. the eNugget® Platform shall notify Client at least five (5) calendar days in advance of all scheduled outages of the the eNugget® Platform and/or the Luma App, in whole or in part (“Scheduled Downtime”). All such Scheduled Downtime should: (i) last no longer than (ninety) 90 minutes; (ii) be scheduled between the hours of 7:00 p.m. and 11:00 p.m. Eastern Time; and (iii) occur no more frequently than two (2) times per month; provided however, that Luma may request Client’s prior approval for extensions of Scheduled Downtime beyond the above, which approval may not be unreasonably withheld or delayed. In the event of unplanned outages, Luma shall notify Client as soon as reasonably practicable and shall use commercially reasonable efforts to restore the eNugget® Platform as quickly as reasonably practical thereafter. At Client’s request, Luma agrees to use commercially reasonable efforts to work with Client in good faith to minimize material disruption to Client’s operations.

Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, pandemics, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each, a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations affected by the Force Majeure Event for so long as the event continues, and such party continues to use commercially reasonable efforts to resume performance; provided however, that if the Force Majeure Event continues for a period of thirty (30) days, the other party shall have the right to terminate this Agreement by providing written notice to the party experiencing the Force Majeure Event.

Support. Luma will use commercially reasonable efforts to support the eNugget® Platform, the Luma Apps available in the App Stores to Client, pursuant to the applicable provisions of the SLA.

Data Rights; Data Retention; Data Privacy and Security

Ownership of Data; Certain Obligations; Limited License to use Client Data; Anonymous Data; Certain Definitions.

The Luma eNugget® Platform will generate data using form collection fields and will collect “Personal Data” (defined below) of Authorized Users who access the Platform, in each case that can reasonably be identified to Client (collectively, “Client Data”). Client retains all right, title and interest in and to all Client Data that may be received, stored or transmitted by Luma for or on behalf of Client in connection with the services contemplated by this Agreement. Luma acknowledges and agrees that such Client Data is and shall remain the sole property of Client and that the terms of this Article 9 (Data Rights; Data Retention; Data Privacy and Security) supersede any conflicting language in any online privacy policy of Luma. As used herein, “Personal Data” means information relating to an identified or identifiable natural person.

  • Luma shall not refuse for any reason (including any alleged breach by Client of this Agreement) to provide Client access to or possession of the Client Data, or any portion of such Client Data, at any time, and Luma shall provide Client access to or possession of the Client Data upon Client’s reasonable request. Employees of Luma or its subcontractors may be provided access to the Client Data only to the extent that such employees and/or subcontractors need to have such access for the provision of Client’s use of the eNugget® Platform and any related services. Client Data may not be searched, mined, sold, assigned, commercially exploited or disclosed to third parties by or on behalf of Luma, its employees and/or subcontractors without the express prior written consent of Client, except disclosures to third parties to the extent necessary to perform under this Agreement (such as for cloud-based service providers).
  • Luma may use Anonymous Data for all internal business purposes of Luma (e.g., analytics, product improvement, etc.) during the Term and thereafter. For purposes of this Agreement, “Anonymous Data” means data collected by or for Luma in which all personal identifiers have been removed, and/or which has been aggregated with other third-party data, in both cases such that the data cannot identify the Client, or its Authorized Users, or the Clients of Client.
  • Luma is responsible for compliance in all material respects with all applicable data privacy laws with respect to Client Data in its possession. Client is responsible for compliance in all material respects with all applicable data privacy laws with respect to Client Data in its possession or that it provides or makes available to the eNugget® Platform.

Data Access; Retention for Archival Purposes. During the Term of this Agreement, Luma shall make the Client Data available to Client for a period 7 years from the date the Client Data was generated. Luma shall delete the Client Data, provided however, that Client has received ninety (90) days advance written notice from Luma prior to any deletion of the Client Data. Luma, upon Client’s request, make the Client Data available to Client during the Archival Period. Client is encouraged to maintain backups for its Client Data.

Data Retention for Legal Process. In addition to the retention rights listed in the foregoing sections, Luma may retain Client Data if Luma is notified by a government agency to preserve such Data in a civil or criminal investigation or proceeding, provided that in such event Luma shall notify Client of such retention unless Luma’s disclosure is otherwise prohibited by law. Client must be notified within 24 hours of any data retention request from a third-party regarding Client data.

Data Privacy and Security.

Return or Destruction of User Data. Upon the written request of Client or an applicable Authorized User, the eNugget® Platform will return such Client Data or securely delete the Client Data as soon as reasonably practicable. However, if the eNugget® Platform is required by law to retain the Client Data or if the Client Data is stored in a manner such that it cannot readily be returned or destroyed without affecting other data, then the eNugget® Platform will continue to protect such Client Data in accordance with this agreement and limit any use to the purpose of such retention.

Security Program Requirements. The eNugget® Platform shall maintain a comprehensive, written information security program that contains administrative, technical, and physical safeguards appropriate to the complexity, nature, and scope of its activities (the “Security Program”). Throughout the Term, the eNugget® Platform shall use its reasonable best efforts to make the eNugget® Platform and related services available in accordance with the data security requirements described in the Security Program.

Data Security Incident Procedures.

Notification. Luma shall notify Client as promptly as reasonably feasible, but in any event within five (5) days of becoming aware of a Data Security Incident. Luma shall provide Client with a detailed description of the Data Security Incident, the type of data that was the subject of the Data Security Incident and, to the extent known to Luma, the identity of each affected person, as soon as this information can be collected or otherwise becomes available, as well as all other information and cooperation that Client may reasonably request relating to the Data Security Incident. The parties shall cooperate in determining whether notification to affected individuals and/or government authorities is required under applicable data protection laws. If notification is required, Luma shall pay all reasonable costs of such notifications. For purposes of this section, a “Data Security Incident” means any accidental, unauthorized or unlawful access, acquisition, theft, destruction, or disclosure of User Data that occurs while such User Data is in the possession of or under the control of Luma, or under the control of a third-party contracted with Luma to provide any portion of the Services contemplated by this Agreement, and results from the same.

Mitigation. Luma agrees to act immediately, at its own expense, to investigate the Data Security Incident and to identify, prevent, and mitigate the effects of the Data Security Incident and, with Client’s prior written agreement, to carry out any recovery or other action necessary to remedy the Data Security Incident. Luma shall inform Client of the steps it is taking to mitigate the effects of the Data Security Incident and to minimize the chances of another Data Security Incident happening again.

Service Level Agreement (SLA)

Luma will use commercially reasonable efforts to support the eNugget® Platform, and the Apps provided by Luma in accordance with the applicable portions of this section in the agreement. Luma does not support Software, or Apps developed by anyone other than Luma unless otherwise expressly agreed in writing by Luma.

Uptime and Availability. The Luma eNugget® Platform will be available to Client at least 99.95% of the time (24 hours a day, 7 days a week, 365 days a year), as measured by Luma over the course of each year during the Term, excluding periods of scheduled maintenance and emergency interruption (as defined in the Agreement) and during any Force Majeure Event (the “Availability Rate”). The express provisions of this Service Level Agreement set forth in this section of the agreement shall be Luma’s sole and exclusive obligation for any failure to meet the Availability Rate.

Credit Eligibility and Computation. In the event of a Severity 1 level incident, Luma may issue a credit to Client in the amount of a percentage of the fees paid by Client for the applicable Service for the Service Period in which the Service Level Failure occurred as follows (a “Service Credit”):

Severity Level Description of Problem Luma Target Response Times Response Team Engagement
Severity 1 A critical problem that involves availability or fundamental functionality of the eNugget® Platform. Or Luma App on a substantially entire user basis, and that is having, or is likely to have, an immediate and material impact on a critical business activity of Client. Respond within thirty (30) minutes of issue being logged with eNugget® Support. It is recommended that all severity 1 issues be logged via phone to eNugget® Support. -Support for CSR (<30 minutes) (response via phone and email)

-Director level (< 2 hour) (response via phone)

-written correction of errors (CEO) Provided within 48 hours of resolution or work around

Severity Level Description of Problem Luma Target Response Times Response Team Engagement
Severity 2 A significant problem that involves functionality or degraded availability of the eNugget® Platform, or the Luma App on a substantially entire user basis, but that does not preclude productive use of the eNugget® Platform and is not having and is not likely to have an immediate and material impact on a critical business activity of Client. Respond within one hour of issue being logged with eNugget® Support. -Support for CSR (<1 hour) (response via phone and email)

-Director level (<4 hours)

Severity 3 An inconvenient problem with the eNugget® Platform, or Luma App on a substantially entire user basis that inhibits a feature of the eNugget® Platform but does not preclude productive use of the Platform. Respond within one (1) Business Day of issue being logged with eNugget® Support. -support or CSR (<12 hours) (via phone and email)

-manager level (< 3 business days)

Severity 4 General questions related to the use of eNugget® Platform, a “how to” question; an error that is minor or cosmetic in nature; or a request to be considered for future enhancements. Respond within two (2) Business Days of issue being logged with eNugget® Support. -support (< 2 business days)

ELDT Training Platform

The entry-level driver training platform offered by Luma is designed to comply with the regulatory requirements of the FMCSA pursuant to Subparts F and G of 49 C.F.R. Part 380 and, as such, Luma maintains active registration with the FMCSA as an entry-level training provider (TPR).  As a TPR providing only theory instruction online, Luma is exempt from all state qualification requirements as provided for in 49 C.F.R. 380.703(a)(5)(ii).  The Client and each User acknowledges and agrees that Luma cannot guarantee, and has no responsibility to ensure, that the ELDT Training Platform meets any state requirements related to the commercial drivers licensing (CDL) of individuals completing the training program offered online by Luma.

FMCSA integration

The FMCSA is currently accepting ELDT Training Certificates. Luma can push certificates to the FMCSA under Luma TPCA and/or under the Clients TPCA, as desired by the client.

Term and Termination

The initial term of this Agreement will begin upon execution by both parties and shall continue until terminated by 30-day written notice by either Party, for any reason or no reason, with or without cause. Termination of this Agreement will not affect the liability of a Party for breach of any of the provisions of this Agreement prior to termination. Upon termination, all licenses and access rights granted in this Agreement shall automatically terminate, and the parties will have no further obligations hereunder except as stated in the sections labeled Confidentiality and Intellectual Property, which will survive any such termination.  Within 30 days following termination, Client may request in writing that Luma provide services to assist in retrieving Client Data remaining on the eNugget® Platform, such assistance to be provided under a separately executed Statement of Work.  Within 60 days following termination, the receiving Party shall return or permanently destroy all Confidential Information of the disclosing Party. Luma shall have no obligation to maintain Client Data beyond such 60-day period.

Minimum Volume Commitment.

The number indicated in the quantity section in the table on page 1 is defined as “Minimum Volume Commitment” or “MVC”. Client acknowledges and agrees that the pricing provided is contingent on Client’s performance of such Minimum Volume Commitment by the Launch date. Client is responsible for payment thereof if such Minimum Volume Commitment is not achieved by the Launch Date, and thereafter maintained throughout the Term of the Agreement. Subscription of MVC starts the day after the kickoff meeting in addition to any set up fee. For the avoidance of doubt, Client is responsible for the payment of the Minimum Volume Commitment regardless of the number of Active Users in a Billable State being less than the Minimum Volume Commitment.

Electronic Signatures and Signers

Client is solely responsible for ensuring that Client’s use of the eNugget® Platform complies with all state and federal applicable laws and regulations, including any electronic signature and related electronic record law such as the Electronic Signature in Global and National Commerce Act, the Uniform Electronic Transactions Act as adopted in any particular state or its equivalent, the Uniform Commercial Code as adopted in any particular state, any consumer protection, data protection, data privacy and trade control laws, and that any particular document or form can be legally executed or formed by electronic record and signature procedures available through the eNugget® Platform. Luma is not responsible or liable to determine whether any particular Client Data such as an agreement, document, form, notice, consent, disclosure or other communication is subject to an exception, limitation or specific requirement of any applicable electronic signature laws or other applicable law or regulation, or whether it can be legally formed by electronic signatures and records.  Luma makes no guaranty regarding the legal enforceability of any agreement signed via Luma’s OnDemand eNugget® form tool. Additionally, other than Luma’s obligation to provide the eNugget® Platform, Luma assumes no liability or responsibility for a Signer’s failure or inability to properly utilize the OnDemand eNugget® tool.

Luma is not responsible for any authentication or identification of any Signer or, if applicable, for the selection of appropriate third-party products and services designed to assist in verifying the identity of Signers. Luma assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, all such third-party products and services which are provided pursuant to the terms of the separate agreement between the third-party and Client. Luma does not represent and warrant in any manner that third-party products or services are appropriate for Client’s purposes or for use with any Luma product or service.

Disclaimer of Forms Warranty

Luma may provide Client with certain template forms, schedules, or information, for execution or for use in calculating or submitting withholding or other tax obligations. Luma is not in the business of providing accounting, tax, or legal advice and expressly disclaims any warranty that such forms, schedules or other information it may provide are accurate, up-to-date, or sufficient to comply with state or federal law. Client has exclusive control over and responsibility for the content, quality and format of all Client Data, including any agreement, document, form, notice, consent, disclosure or other communication uploaded onto the eNugget® Platform or otherwise provided to Luma, and Client alone bears all responsibility to determine the proper rates of taxation, to calculate the proper tax owed, and to timely comply with any tax payment obligation. Luma shall not be considered a party to any Client Data including any agreement, document, form, notice, consent, disclosure or other communication uploaded onto the eNugget® Platform for execution, and Luma makes no representation or warranty regarding any such agreement, document, form, notice, consent, disclosure or other communication sought to be effected or executed using the eNugget® Platform.  Luma is not responsible or liable to produce to any third parties any of Client’s agreements, documents, forms, notices, consents, disclosures or other communications or Client Data on the eNugget® Platform other than as required by law. While the eNugget® Platform offers storage functionality, Client acknowledges that it is solely responsible for the management of its own record and data retention policy, including for determining how long and how pursuant to applicable law any Client Data is required to be retained or stored under any applicable laws or regulations.

Disclaimer of Proctor (LumaLens™) Warranty and Indemnity Agreement.

LumaLens is an optional feature. The terms in this paragraph only apply to clients who elect to use the feature.

Luma’s online proctoring system, (LumaLens™) offers photographic evidence of users’ identities when taking training in Luma. Client acknowledges that Luma Lens is simply a tool in the Luma platform and Client specifically agrees to indemnify Luma, its owners, shareholders, directors, affiliates and employees, against any damages arising out of its use or caused by the end user. Client understands that Luma is not responsible for the user not turning the camera on, the user’s camera not getting an image of the user, or any adverse actions against the client due to the end user’s actions. Client agrees to not share or use any LumaLens™ imagery it gains access to for any purpose other than to confirm a user’s identity. Client also acknowledges that the decision about whether the camera is turned on is solely up to the end user.

Limitation of Liability

IN NO EVENT SHALL LUMA, OR ITS OWNERS, SHAREHOLDERS, DIRECTORS, AFFILIATES OR EMPLOYEES, BE LIABLE FOR SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES ARISING UNDER CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY. Such disclaimed damages include but are not limited to loss of profits, fines or penalties imposed by third parties, loss of Client Data, loss of use of the eNugget® Platform or any software, damage to property, or claims of third parties. EXCEPT FOR LUMA’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, THE TOTAL LIABILITY OF LUMA ARISING OUT OF OR RELATED TO THIS AGREEMENT, OR THE PRODUCTS OR SERVICES PROVIDED UNDER THIS AGREEMENT, SHALL BE LIMITED TO THE TOTAL AMOUNT PAID OR PAYABLE BY CLIENT IN THE 12 MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.

Fees and Expenses

Luma will bill the amounts described in this Agreement in accordance with the timeline set forth herein. If no such timeline is described with respect to any particular amounts, Luma will bill monthly for work complete and costs incurred during the billing term, and Luma agrees that billing will not exceed this amount without prior written permission from the client. The Luma Brighter Learning APP is freely available on the Google Play Store and iTunes.  However, some 3rd party integration partners may require a fee for integration, data usage, and/or support of their services.  All payment amounts required by this Agreement are not subject to setoff, and are stated exclusive of all taxes, duties, or similar government assessments, including sales and use taxes (“Taxes”). Client is responsible for all Taxes associated with Client’s purchase or use of Luma products and services.

Default of Agreement and Termination of Representation

Client agrees that if Client fails to pay any invoice billed under this Agreement within 30 days of the due date on the invoice, Luma shall have the right, in its sole discretion, to declare the Client to be in default of this Agreement. Client hereby agrees and acknowledges that upon a termination of this Agreement, by either party, or, for whatever reason, all outstanding and unpaid amounts due Luma, including previously billed amounts, and all earned but un-billed fees for services, costs and expenses, shall be immediately due and payable. The total of the amounts due and payable, including previously assessed and assessable service charges, shall also be subject to an interest charge of 1.5% per month, compounded monthly, until paid in full. The failure of Luma to declare a default of this Agreement with respect to any given invoice due and payable by Client shall not be a waiver of its right to later declare a default with respect to such same invoice, and shall not be a waiver of its right to declare a default with respect to any subsequent or prior invoice of Client that is subject to default in accordance with this paragraph. Client agrees to pay any and all costs and expenses incurred by Luma, including, but not limited to, reasonable attorneys’ fees, in any attempt to collect payments due under this Agreement. Client agrees the payment of collection costs and expenses shall be in addition to any award of payment in favor of Luma by any court or administrative body.

Governing Law

This Agreement and any dispute relating hereto shall be decided according to South Carolina law, and in the State Courts in Charleston County, South Carolina.

Dispute Resolution

If any controversy or dispute arises under or in connection with this Agreement (a “Dispute”) neither Party shall commence legal proceedings related to such a Dispute unless it first notifies the other Party in writing. The notice shall set forth in reasonable detail the reasons for the Dispute and the Party’s proposed resolution thereof. Both Parties agree not to commence any legal proceedings for a period of 30 days following said notice in order to provide the Party receiving the notice with the opportunity to respond and in order to provide the Parties the opportunity to negotiate to resolve the Dispute. During such time period each Party shall continue to perform pursuant to the terms of this Agreement. If the Parties are unable to resolve the Dispute in the foregoing manner then, after expiration of said 30-day period, either Party may commence legal proceedings (or, if agreed to by the Parties, arbitration) relating to the Dispute.

Assignment

Client may not assign or subcontract this Agreement, in whole or in part, to a third party without the prior consent of Luma provided however, that Client may assign its rights and obligations under this Agreement to a corporate affiliate as part of a reorganization, or to a purchaser of its business entity or substantially all of its assets or business, without Luma’s consent, so long as the assignee is not insolvent or otherwise unable to pay its debts as they become due, and the assignee is bound by this Agreement.

Waiver of Jury Trial

EACH PARTY HERETO IRREVOCABLY AND ABSOLUTELY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY DISPUTE IN CONNECTION WITH, ARISING UNDER OR RELATING TO THIS AGREEMENT OR ANY MATTERS CONTEMPLATED HEREBY OR THEREBY, AND AGREES TO TAKE ANY AND ALL ACTION NECESSARY OR APPROPRIATE TO EFFECT SUCH WAIVER.