The Lunar Company, Inc.
Apollo Terms of Service
Updated October 31, 2021
This Apollo Terms of Service (the “Agreement”) is made between The Lunar Company, Inc., a California corporation (“Company”) and each party (a “Customer”) that signs up for or otherwise uses the Service defined below. By signing up for, or otherwise using, the Service, Customer agrees to this Agreement.
1. DEFINITIONS.
1.1 “Affiliate” means an entity controlling, controlled by or under common control with a party to this Agreement at any time during the term of this Agreement, for so long as such ownership and control exists, provided such entity is not a competitor to Company or in the business of developing and offering products or technologies that are substantially similar to the Service.
1.2 “Customer Data” means all data entered by Customer into the Service.
1.3 “Related Parties” means Affiliates, successors, assigns, members, shareholders, officers, directors and agents of Company.
1.4 “Service” means the customer-facing services, implementation services, support, Software (as defined below) and any other services provided by Company to Customer pursuant to this Agreement.
1.5 “Software” means the source code, object code, underlying structure, ideas, know-how and algorithms comprising the Service, documentation, and data related to the Service.
1.6 “User Content” means any content posted, uploaded, or otherwise contributed by Customer to the Service.
2.LICENSE.
2.1 License Grant to Customer. Subject to Customer’s compliance with this Agreement, Company grants to Customer a limited, non-exclusive, revocable license to make personal, non-commercial use of the Service. This license shall remain in effect unless terminated by Customer or Company.
2.2 License Grant to Company. Customer hereby grants to Company a non-exclusive, transferable, sub-licensable, royalty-free, fully paid, irrevocable, worldwide license to reproduce, make available, perform and display, translate, modify, create derivative works from, distribute, and otherwise use User Content through any medium, whether alone or in combination with other content or materials, in any manner and by any means, method or technology, whether now known or hereafter created, in connection with the Service. Where applicable and to the extent permitted under applicable law, Customer also agrees to waive, and not to enforce any “moral rights” or equivalent rights, such as Customer’s right to be identified as author of any User Content, including feedback related to the Service, and Customer’s right to object to derogatory treatment of such User Content.
3. USE OF SERVICE.
3.1 Use of Software Underlying Service. Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover source code underlying the Service; (b) modify, translate, or create derivative works based on the Service or any Software (except to the extent expressly permitted by Company in writing or authorized within the Service); (c) frame, mirror or use the Service for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (d) remove any proprietary notices or labels from the Service.
3.2 Appropriate Use of Service. Customer will not, and will not permit its users to:
(a) Post, upload, forward, or otherwise transmit any file or software code that contains, facilitates, or launches viruses, worms, trojan horses or any other contaminating or destructive features, or that otherwise interfere with the proper working of the Service; or
(b) Attempt to access any other Company systems that are not part of the Service.
(c) Use the Service to upload, post, process, distribute, link to, publish, reproduce, or transmit any of the following, including but not limited to:
(i) Illegal, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable information or communications of any kind, including without limitation conduct that would encourage or constitute an attack or “flaming” others, or criminal or civil liability under any local, state, federal or foreign law;
(ii) Content or data that would impersonate someone else or falsely represent an individual’s identity or qualifications, or that constitutes a breach of any individual’s privacy, including posting images about children or any third party without their consent (or a parent’s consent in the case of a minor);
(iii) Any information, software or content Customer does not have the legal right to process or transmit.
3.3 No Transfers. The Service and all licenses granted to Customer may not be transferred or redistributed to any third party, except in connection with a permissible assignment pursuant to Section 12.2.
3.4 Minimum Age. The Service is not directed to, nor intended to be used by, individuals under the age of 13.
3.5 Compliance. Although Company has no obligation to monitor Customer’s use of the Service, Company may do so and may prohibit any use of the Service it believes may be in violation of the foregoing.
4. OWNERSHIP RIGHTS.
4.1 No Ownership Assignment. Neither party will assign ownership rights in any of its assets to the other pursuant to this Agreement, and neither party grants the other any rights or licenses not expressly set out in this Agreement.
4.2 What Company Owns. The Service is the proprietary intellectual property of Company and its licensors, protected by copyright and other intellectual property laws. Except for the rights granted herein, Company and its licensors retain all right, title and interest, including all intellectual property rights, in the Service (and any derivative works of or improvements to any of the foregoing created by or for Company) and the documentation. Even if the terms “purchase” and “sale” are used, Customer does not receive ownership rights in the Service and have only those use rights in this Agreement. Company retains all rights not explicitly granted herein.
4.3 What Customer Owns. Customer retains all rights to Customer Data. Company disclaims all ownership and other rights as to Customer Data, except any limited rights granted by Customer to provide the Service.
4.4 Copyright Policy. If Customer or any third party is a copyright holder, or its agent, and believes that any of the copyrighted material that is directly available via the Service infringes it, it should notify Company and Company will address the alleged infringement. Company may disallow access to the Service to Customers who are repeat infringers.
5. PAYMENT. If applicable, Customer will pay Company in U.S. Dollars the fees in the amounts and at the times specified at the time of purchase or renewal, as applicable. Unless otherwise stated, all fees are prepaid and all fees are non-cancelable and non-refundable. Customer is responsible for any sales, use, value added, excise, property, withholding or similar tax and any related tariffs, and similar charges, except taxes based on Company’s net income. If Customer is required to pay any such taxes, Customer shall pay such taxes with no reduction or offset in the amounts payable to Company hereunder. If an applicable tax authority requires Company to pay any taxes that should have been payable by Customer, Company will advise Customer in writing, and Customer will promptly reimburse Company for the amounts paid.
6. APPLE NOTICE. If Customer has downloaded Company’s mobile software application (the “App”) from the Apple Inc. (“Apple”) App Store or if Customer is using the App on an iOS device, Customer acknowledges that Customer has read, understood, and agreed to the following notice regarding Apple: This Agreement is between Customer and Company only, not with Apple, and Apple is not responsible for the Service and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, Customer may notify Apple and Apple will refund the applicable purchase price for the App to Customer; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by Customer or any third party relating to the Service or Customer’s possession or use of the Service. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Service or Customer’s possession and use of the App infringe that third party’s intellectual property rights. Customer agrees to comply with any applicable third-party terms, when using the Service. Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement, and upon Customer’s acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against Customer as a third-party beneficiary of this Agreement.
7. LIMITED WARRANTIES AND EXCLUSIVE REMEDIES.
7.1 Authority. Each of Company and Customer represents and warrants that: it has the full right, power and authority to enter into and fully perform this Agreement; the person signing this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; its entry herein does not violate any other agreement by which it is bound; and it is a legal entity in good standing in the jurisdiction of its formation and shall continuously remain in good standing during the term of this Agreement.
7.2 Protection of Customer Data. Company will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Company personnel except (a) to provide the Service and to prevent or address service or technical problems, or (b) as Customer expressly permits in writing.
7.3 Warranty Exclusions. Company is not obligated to correct errors caused: by unauthorized modification to the Service, if Customer uses the Service other than as described in the documentation, by non-Company software or services, or by combining the Service with any other hardware or Service not authorized by Company in writing.
7.4 NO IMPLIED WARRANTIES. THE WARRANTIES ABOVE ARE THE EXCLUSIVE WARRANTIES REGARDING THE SERVICE AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES OF COMPANY, WHETHER EXPRESS OR IMPLIED, INCLUDING NON-INFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.5 DISCLAIMER. COMPANY DOES NOT WARRANT THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE FEATURES OR FUNCTIONALITIES OF THE SERVICE WILL BE AVAILABLE AT ANY TIME IN THE FUTURE OR THAT ALL ERRORS IN THE SERVICE OR DOCUMENTATION WILL BE CORRECTED. COMPANY SHALL HAVE NO RESPONSIBILITY FOR DETERMINING THAT CUSTOMER’S PROPOSED USE OF THE SERVICE COMPLIES WITH APPLICABLE LAWS IN CUSTOMER’S JURISDICTION(S).
8. INDEMNITY.
8.1 Indemnification. Customer at its own expense will defend, indemnify and hold Company and its Related Parties harmless against any liabilities, damages, fines, judgments, settlements, costs or expenses (including reasonable attorney’s fees and disbursements) arising out of or related to claims, demands, suits, actions or proceedings made or brought by anyone other than a Related Party related to Customer’s breach of this Agreement or any allegation of misappropriation, misuse or breach of applicable law by Customer.
8.2 Indemnification Procedure. Promptly after a party seeking indemnification obtains knowledge of the existence or commencement of a Claim, the party to be indemnified will notify the other party of the Claim in writing; provided however, that the indemnifying party’s indemnity obligations will be waived only if and to the extent that its ability to conduct the defense are materially prejudiced by this failure to give notice. The indemnifying party will assume the sole control of defense and settlement of the Claim with counsel reasonably satisfactory to the indemnified party at the indemnifying party’s risk and expense; provided, however, the indemnified party may join in the defense and settlement of the Claim and employ counsel at its own expense, and will reasonably cooperate with the indemnifying party in the defense and settlement of the Claim. The indemnifying party may not settle any Claim without the indemnified party’s written consent unless the settlement (x) includes a release of all covered claims pending against the indemnified party; (y) contains no admission of liability or wrongdoing by the indemnified party; and (z) imposes no obligations upon the indemnified party other than an obligation to stop using any infringing items. If both the indemnified party and the indemnifying party are named parties in any action relating to the Claim and the counsel chosen by the indemnifying party cannot represent both the indemnified party and indemnifying party due to any present or potential conflict in representing the interests of both of them, then the indemnifying party will retain separate counsel for the indemnified party.
9. LIMITATIONS OF LIABILITY.
9.1 No Consequential Damages. In no event shall Company or its agents and suppliers (including their directors, officers, employees, representatives, agents and suppliers) be liable for any indirect, incidental, special or consequential damages, including without limitation procurement of substitute products or services or loss of profits, revenue, data or data use, even if Company has been advised of the possibility of such damages.
9.2 Direct Damages. The aggregate, cumulative liability of Company (including its directors, officers, employees, representatives, agents and suppliers) under this Agreement shall be limited to the Fees paid or payable by Customer to Company during the twelve month period prior to the event giving rise to any claim. The foregoing shall not limit Customer’s payment obligations.
9.3 Allocation of Risk. The provisions of this Agreement fairly allocate the risks between Company, on the one hand, and Customer on the other. Customer acknowledges and agrees that the pricing reflects this allocation of risk and the limitation of liability specified herein, and that Company would not enter into this Agreement without such allocation and limitation.
10. TERM AND TERMINATION.
10.1 Term. This Agreement begins on the date of Customer’s first use of the Service and will continue until terminated by either Company or Customer as described, below.
10.2 Termination. Company may terminate this Agreement or suspend Customer’s access to the Service at any time if Company believes Customer to have breached this Agreement, if Company stops providing the Service, or as Customer believes necessary to comply with applicable law. Customer may terminate this Agreement at any time, in which case Customer shall immediately cease all use of the Service.
10.3 Survival. All terms that by their nature are intended to survive the termination or expiration of this Agreement shall survive such termination or expiration.
11. EXPORT CONTROL LAWS. The export and re-export of certain software and content are controlled by the United States Export Administration Regulations, and such software and content may not be exported or re-exported to Cuba, Iran, North Korea, Syria, or any country to which the United States embargoes goods. In addition, certain software and content may not be distributed to individuals who are on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals. Customer warrants that it is not a national of Cuba, Iran, North Korea, Syria or any country to which the United States embargoes goods, and that Customer is not a person on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals. Customer further warrants that it will abide by U.S. and other applicable export control laws.
12. GENERAL.
12.1 Integration; Severability. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter hereof, including any NDAs or confidentiality agreements entered previously. If any provision of this Agreement is adjudicated invalid or unenforceable, the remaining provisions will remain in effect and the Agreement will be amended to the minimum extent necessary to achieve, to the maximum extent possible, the same legal and commercial effect originally intended by the parties. This Agreement shall supersede the terms of any purchase order or other business form.
12.2 Assignment. This Agreement may not be assigned by Customer without Company’s prior written consent, whether by operation of law or otherwise. Any other purported assignment shall be void.
12.3 Force Majeure. Neither party shall be liable to the other for its failure to perform its obligations under this Agreement, except for payment obligations, during any period in which such performance is delayed or rendered impracticable or impossible due to unforeseen circumstances beyond its reasonable control.
12.4 Amendment; Counterparts. This Agreement may not be amended or modified by Customer unless such amendment or modification is in writing signed by both parties. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. This Agreement may be executed electronically or by written signature and delivered in multiple versions, including facsimile, PDF, or other electronic counterparts, all of which will constitute one and the same instrument and agreement.
12.5 Governing Law and Venue. This Agreement shall be governed by the laws of the State of California, United States of America without regard to its conflict of laws provisions. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act. Any legal action relating to this Agreement will be brought in the federal or state courts in the Northern District of California, U.S.A., and the parties agree to the exercise of jurisdiction by such courts. In the event of any action, suit or proceeding related to this Agreement, the prevailing party, in addition to its rights and remedies otherwise available, shall be entitled to receive reimbursement of reasonable attorney’s fees and expenses and court costs.
12.6 Notices. All notices must be in writing and will be deemed delivered when: (a) verified by written receipt if sent by personal courier, overnight courier, or postal mail; or (b) confirmed or replied to by the recipient if sent by email.
12.7 No Agency Relationship. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between Customer and Company.