Enterprise Services Agreement

PLEASE CAREFULLY READ THIS SERVICES AGREEMENT (“SERVICES AGREEMENT”) BEFORE ACCESSING OR OTHERWISE USING THE DIGITAL LUMENS LIGHTRULES ENTERPRISE SERVICES (THE “SERVICES”) AND DOCUMENTATION (THE “DOCUMENTATION’) THAT IS INCORPORATED IN, OR OTHERWISE PROVIDED WITH, THE SERVICES. THIS SERVICES AGREEMENT IS ENTERED INTO BY AND BETWEEN DIGITAL LUMENS, INC., A DELAWARE CORPORATION (“LICENSOR”) AND THE PERSON OR ENTITY AGREEING TO THE SERVICES AGREEMENT (“LICENSEE”). THIS SERVICES AGREEMENT IS EFFECTIVE AS OF THE DATE YOU FIRST ACCESS THE SERVICES. IF YOU ARE ACCEPTING ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT: (I) YOU HAVE FULL LEGAL AUTHORITY TO BIND YOUR EMPLOYER, OR THE APPLICABLE ENTITY, TO THE SERVICES AGREEMENT; (II) YOU HAVE READ AND UNDERSTAND THIS SERVICES AGREEMENT; AND (III) YOU AGREE, ON BEHALF OF THE PARTY THAT YOU REPRESENT, TO THIS SERVICES AGREEMENT. ACCEPTANCE OF THIS SERVICES AGREEMENT IS REQUIRED AS A CONDITION TO PROCEEDING WITH ACCESS AND USE OF THE SERVICES. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THE SERVICES AGREEMENT OR IF YOU DO NOT HAVE THE LEGAL AUTHORITY TO BIND YOUR EMPLOYER OR THE APPLICABLE ENTITY, DO NOT ACCESS OR USE THE SERVICES.

1. Description

THIS SERVICES AGREEMENT GOVERNS LICENSEE’S USE OF THE LIGHTRULES ENTERPRISE SERIVICES IN CONJUNCITON WITH THE LIGHTRULES SOFTWARE AND LICENSOR’S INTELLIGENT LIGHTING SYSTEM (“ILS”), THE USE OF WHICH IS GOVERNED BY THE LIGHTRULES SOFTWARE EULA AND SERVICE AGREEMENT ENTERED INTO BY THE PARTIES UPON INSTALLATION OF THE ILS.

2. License Grants

Subject to the terms and conditions of this License Agreement, Licensor hereby grants Licensee a personal, worldwide, royalty-free, non-assignable, non-transferable and non-exclusive license to (a) access and use the Services solely (i) for Licensee’s internal business purposes, (ii) in connection with Licensee’s use, and monitoring of the ILS, and (iii) in accordance and compliance with the terms of this Services Agreement and the LightRules End User License Agreement executed upon installation of the ILS. This Agreement shall not entitle Licensee to any additional services which are separately priced and licensed by Licensor as new products. All rights relating to the ILS, the Services and the Documentation that are not expressly licensed in this Services Agreement, whether now existing or which may hereafter come into existence, are reserved for Licensor.

Subject to the terms and conditions of this Agreement, Licensee hereby grants Licensor the right to remotely access Licensee’s internal information technology network via electronic means solely for the purpose of accessing the ILS and LightRules Software in order to provide the Services.

3. Restrictions

Licensee will not, directly or indirectly: (i) permit use of the Services by anyone other than employees or authorized representatives of Licensee, each using a unique identifier and password; (ii) provide a user identifier or password to access the Services to any party or person other than Licensee’s employees or its authorized representatives, (iii) process data on behalf of third parties, (iv) reverse engineer, decompile, disassemble or otherwise create, attempt to create, or permit or assist any third party to create a source code version of the Services; (v) transfer, distribute, sell, resell, lease, sublease, license, sub-license or assign use of or access to the Services or the license or subscription granted by this Agreement or otherwise offer the Services for use on a service bureau, outsourced, or value added basis; (vi) use the Services in any manner that will use, make, prepare derivative works of, or distribute, unauthorized copies of third party copyrighted material; or (vii) circumvent, disable or otherwise interfere with security-related features of the Services.

4. Term

The initial term of this Services Agreement is for one (1) year from is effective date (the “Subscription Period”) and shall automatically renew for an additional period of twelve (12) calendar months, unless Licensee delivers written notice to Licensor, at least ninety (90) days prior to the expiration of the then-current Subscription Period, of its intention not to renew the Subscription Period. Licensor may terminate this License Agreement with or without notice if Licensee materially breaches this License Agreement or takes any action in derogation of Licensor’s or its licensor’s rights in or to any component of the ILR or the Services. Upon termination, Licensee shall cease all use of the Services.

5. Warranty

Licensor warrants that the Services will conform in all material respects with its Documentation. Licensee must notify Licensor in writing within the warranty period of its claim of any such defect. This is Licensor’s entire liability and the Licensee’s sole and exclusive remedy in connection with any breach of this Services Agreement, including, but not limited to, any breach of warranty.

6. Disclaimers

EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND LICENSOR MAKES NO AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT OF THIRD PARTIES’ INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS. NEITHER THIS SERVICES AGREEMENT NOR ANY DOCUMENTATION FURNISHED UNDER IT IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE AVAILABILITY OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE.

7. Limitation of Liability

IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY LOST PROFITS, REVENUE OR DATA, OR OTHER INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR RELATED TO THE SERVICES OR THE USE THEREOF. IN NO EVENT SHALL LICENSOR’S LIABILITY TO LICENSEE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE GREATER OF $500 AND THE FEES PAID BY LICENSEE WITH RESPECT TO THE SERVICES FOR THE THREE (3) MONTH PERIOD IMMEDIATELY PROCEEDING THE INCIDENT GIVING RISE TO SUCH A CLAIM. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY, EVEN IF LICENSOR HAS BEEN ADVISED, OR IS OTHERWISE AWARE, OF THE POSSIBILITY OF DAMAGES IN EXCESS OF SUCH LIMITATIONS AND EVEN IF THE WARRANTY REMEDY OF SECTION 5 FAILS OF ITS ESSENTIAL PURPOSE. LICENSEE AND LICENSOR AGREE THAT THE DISCLAIMERS OF SECTION 5 AND THE LIMITATION OF LIABILITY OF THIS SECTION 7 ARE REASONABLE. SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER INDIRECT OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS OF SECTIONS 5 AND 6 OF THE LICENSE AGREEMENT MAY NOT APPLY TO LICENSEE. IN SUCH STATES, THE LIABILITY OF LICENSOR SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

8. Feedback

Licensee may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Licensor with respect to the ILS, Software or Services. Licensor shall have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Should Licensor determine that it wishes to so proceed, Licensor, upon its discretion, may elect to integrate the new enhancement, feature and/or functionality into its overall product planning process. The Parties agree that such Feedback shall be given voluntarily, and Licensee acknowledges and agrees that Licensor shall own all right, title and interest in and to the Feedback, all developments based upon such Feedback and all intellectual property rights in and to the foregoing. Licensee hereby assigns and does agree to assign to Licensor all right, title and interest it may have in and to the Feedback and shall cooperate with Licensor as reasonably necessary in order to give full effect to such assignment.

9. Miscellaneous

  • If any term or condition of this Services Agreement is deemed to be illegal or unenforceable under any rule of law, all other terms shall remain in force. Further, such provision will be reformed only to the extent necessary to make it enforceable and the term or condition which is held to be illegal or unenforceable shall remain in effect as far as possible in accordance with the intention of the parties.
  • Nothing in this Services Agreement shall be construed to place the parties hereto in an agency, employment, franchise, joint venture, or partnership relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained shall give rise or is intended to give rise to any rights of any kind to any third parties. Neither party will represent to the contrary, either expressly, implicitly or otherwise.
  • All disputes, claims or controversies arising out of this Services Agreement, or the negotiation, validity or performance of this Services Agreement, or the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to its rules of conflict of laws. Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the Commonwealth of Massachusetts and of the United States of America located in the Commonwealth of Massachusetts (the “Massachusetts Courts”) for any litigation among the parties hereto arising out of or relating to this Services Agreement, or the negotiation, validity or performance of this Services Agreement, waives any objection to the laying of venue of any such litigation in the Massachusetts Courts and agrees not to plead or claim in any Massachusetts Courts that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the Massachusetts Courts.
  • Licensee may not assign this Services Agreement without the prior written consent of Licensor. Any purported assignment in contravention of this section is null and void. A transfer of a controlling interest in the equity of Licensee shall be deemed an assignment for purposes of this subsection. Subject to the foregoing, this Services Agreement will bind and inure to the benefit of any successors or assigns.
  • This Services Agreement constitutes the entire agreement between the parties regarding the provision of the Services, and it supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations. This Services Agreement may not be modified or waived, in whole or part, except in writing and signed by an officer or duly authorized representative of both parties. Failure or delay by either party to enforce any provision of this Services Agreement will not be deemed a waiver of future enforcement of that or any other provision.