Date of Last Revision: 05 August 2024
These current consolidated Master SaaS Terms apply in relation to the provision of the Services by Lune to the Customer.
Affiliate: means any entity directly or indirectly controlling or controlled by or under direct or indirect common control with another entity; and “control” means the power, directly or indirectly, to direct, or cause the direction of the management and policies of an entity through the ownership of voting securities, by contract or otherwise.
Agreement: means these Master SaaS Terms as agreed between the Parties together with the Order Form, the Annexes and any ancillary agreements or documents referred to herein and agreed upon by both Parties in writing.
Applications: means the software or applications used by or on behalf of Lune to provide the Services.
Authorized Users: means those employees, agents, subcontractors, and end users who are authorized by the Customer in writing to use the Services.
Business Days: means a day other than Saturday, Sunday or public holiday in the United Arab Emirates.
Business Hours: means from 9am to 5pm Gulf Standard Time (GST) during Business Days.
Confidential Information: means any and all data including but not limited to reports, records, correspondence, notes, compilations, studies, specifications, drawings, samples, client information, pricing, the terms of this agreement, technical documentation or specifications and any other information disclosed to the Receiving Party or any of its Representatives, relating to or in any way connected with the services of the Agreement, with the Disclosing Party or any of its Affiliates, whether such information is disclosed orally, in writing or by any other means, identified as confidential or proprietary through the use of appropriate markings, or regardless of whether such information is identified as confidential, and includes, without limitation, any information ascertainable by visual inspection. The term Confidential Information shall also include information or data disclosed under the Confidentiality and Non-disclosure Agreement executed between the Parties.
Customer: has the meaning given in the relevant Order Form.
Customer Data: means all data (in any form) that is provided to Lune or uploaded or hosted on any part of any Services by the Customer or by any Authorised User.
Documentation means:
(a) the description of the relevant Service (as Updated from time to time) and technical specification and user guides, as it stands at the time of Order Acceptance;
(b) in respect of each Service, the relevant instructions as to how to use that part of the Services made available by Lune (as Updated from time to time).
Initial Term: the initial term of the Agreement.
Intellectual Property Rights: means any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, utility models, domain names and all similar rights and, in each case:
(a) whether registered or not;
(b) including any applications to protect or register such rights;
(c) including all renewals and extensions of such rights or applications;
(d) whether vested, contingent or future; and
(e) wherever existing;
Lune: has the meaning given in the relevant Order Form.
Master SaaS Terms: means the terms set out in the clauses and other provisions of this document (including the schedule), as Updated from time to time.
Materials: means all services, data, information, content, Intellectual Property Rights, websites, software and other materials provided by or on behalf of Lune in connection with the Services, but excluding Customer Data.
Non-Supplier Materials: means Materials provided, controlled or owned by or on behalf of a third party the use of which is subject to a separate agreement or licence between the Customer and the relevant third party (including such Non-Supplier Materials which may be linked to, interact with or used by the Services) and all other Materials expressly identified as Non-Supplier Materials in the Agreement.
Order Acceptance: means the effective date of the relevant Order Form.
Order Form: means the electric or physical form (including its schedules, annexes and appendices (if any) ordering the Services entered into by or on behalf of the Customer and Lune, incorporating these Master SaaS Terms and the Agreement (and as varied by the Parties by agreement in writing from time to time).
Open-Source Software: means any software subject to a version of the General Public Licence, together with any other ‘open source’ software falling within the Open Source Definition issued by the Open Source Initiative (www.opensource.org/docs/osd) at the date of the Agreement and any ‘free software’ as defined by the Free Software Foundation (www.gnu.org/philosophy/free-sw.html) at the date of the Agreement.
Party / Parties: means the signatories of the Agreement.
Permitted Purpose: means use solely for the Customer’s business operations and, in respect of each Services, also for the internal business of operations of the Authorised Users identified in respect of that Service on the Order Form, in each case in accordance with the Agreement. Permitted Purpose expressly excludes any of the following to the maximum extent permitted by law:
(a) copying, caching, reproducing, publishing, distributing, redistributing, broadcasting, transmitting, modifying, adapting, editing, abstracting, storing, archiving, displaying publicly or to third parties, selling, licensing, leasing, renting, assigning, transferring, disclosing (in each case whether or not for charge) or in any way commercially exploiting any part of any Service;
(b) permitting any use of any Service in any manner by any third party (including permitting use in connection with any timesharing or service bureau, outsourced or similar service to third parties or making any Service (or any part) available to any third party or allowing or permitting a third party to do any of the foregoing (other than to the Authorised Users for the Permitted Purpose));
(c) combining, merging or otherwise permitting any Service (or any part of it or any Application) to become incorporated in any other program or service, or arranging or creating derivative works based on it (in whole or in part); or
(d) attempting to reverse engineer, observe, study or test the functioning of or decompile the Applications or the Services (or any part),
except as expressly permitted under the Agreement.
Pricing Terms: means the details of pricing and fees in respect of each part of the Services, as initially provided under the Order Form and updated from time to time in accordance with clause 5 or, in respect of any part of the Services for which prices are not expressly agreed.
Relief Event: means a) any breach of the Agreement by the Customer; or b) any Force Majeure.
Representatives: means any person authorized in writing to act on behalf of the Party as defined in clause 6.1.
Services: means the Lune Services as stated in the Order Form section and clause 7.
Support Services: means, in respect of the relevant Service, the support services provided by Lune to the Customer as described in the Order Form.
Term: means the term duration of this Agreement as set out in the Order Form.
Territory: means, in respect of the relevant Service, the territories identified in the Order Form except to the extent it is illegal (including as a result of any embargo) under the laws of the United Arab Emirates (as binding on any person) for the Service to be provided to or received within such territories from time to time.
Update: has the meaning given in clause 5.2 and Updated shall be construed accordingly.
VAT: means value added tax in the United Arab Emirates, any other tax imposed in substitution for it.
2 In this Agreement, unless otherwise stated:
2.1 headings to clauses are for convenience only and do not affect the interpretation of this Agreement;
2.2 Lune and the Customer are together the Parties and each a party, and a reference to a party includes that party’s successors and permitted assigns;
2.3 words in the singular include the plural and vice versa;
2.4 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
2.5 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email);
2.6 a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time and a reference to legislation includes all subordinate legislation made from time to time under that legislation.
3 Any obligation of Lune under the Agreement to comply or ensure compliance by any person or the Services with any law shall be limited to compliance only with laws within the Territory as generally applicable to businesses and to providers of software as a service solutions. Such obligations shall not be construed to create any obligation on Lune (or anyone acting on its behalf) or any part of the Services to comply with any laws or regulations which apply solely to specific commercial or other activities (such as insurance, legal advice or banking or other professional services) or which apply solely to a specific commercial or non-commercial sector (or part thereof) (such as the public, legal, accountancy, actuarial, insurance, banking or financial service sectors).
4 Authorised Users
4.1 The Customer shall ensure that only Authorised Users use the Services and that such use is at all times in accordance with the Agreement. The Customer shall ensure that Authorised Users are, at all times while they have access to the Services, the employees or contractors of the Customer.
4.2 The Customer shall keep a list of all Authorised Users and shall notify Lune within two Business Days if any updates to any list of Authorised Users are made or required, including when Authorised Users cease to be employed or engaged by a relevant entity such that they are no longer entitled to be Authorised Users.
4.3 The Customer shall ensure that the number of Authorised Users for each Service do not exceed the number of Authorised Users accounts for the relevant Service at any time. The Customer is entitled to remove one individual as an Authorised User and replace them with another individual in accordance with the terms of the Agreement, but Authorised User accounts cannot be shared or used by more than one individual at the same time.
4.4 Without prejudice to any other right or remedy of Lune, in the event the Customer is in breach of clause 4.3 then:
4.4.1 the warranties in clause 12 shall cease to apply for the duration of the period during which the Customer is in breach of clause 4.3; and
4.4.2 the Customer shall be liable to pay for the number of Authorised Users above the number of Authorised Users accounts for that Service for the relevant period during which infringement occurred in accordance with Lune’s Pricing Terms.
4.5 The Customer shall:
4.5.1 be liable for the acts and omissions of the Authorised Users as if they were its own;
4.5.2 only provide Authorised Users with access to the Services via the access method provided by Lune and shall not provide access to (or permit access by) anyone other than an Authorised User; and
4.5.3 procure that each Authorised User is aware of, and complies with, the obligations and restrictions imposed on the Customer under the Agreement, including all obligations and restrictions relating to Lune’s Confidential Information.
4.6 The Customer warrants and represents that it, and all Authorised Users and all others acting on its or their behalf (including systems administrators) shall, keep confidential and not share with any third party (or with other individuals except those with administration rights at the Customer’s organisation as necessary for use of the Service) their password, API keys or access details for any Service.
4.7 The Customer shall (and shall ensure all Authorised Users shall) at all times comply with the provisions of the Agreement.
4.8 If any password, API keys or access credentials has been provided to an individual that is not an Authorised User, the Customer shall, without delay, disable any such passwords, API keys or access credentials and notify Lune immediately.
4.9 The Customer shall comply (and shall ensure all Authorised Users comply) with all applicable laws, rules, and regulations governing export that apply to the Services, the Customer Data and the Documentation (or any part), and shall not export or re-export, directly or indirectly, separately or as a part of a system, the Services, the Customer Data or the Documentation (or any part) to, or access or use the Services, the Customer Data or the Documentation (or any part) in, any country or territory for which an export licence or other approval is required under the laws of the United Arab Emirates, without first obtaining such licence or other approval. Without prejudice to Lune’s obligations under any data protection addendum, the Customer shall be solely responsible for ensuring its access, importation and use of the Services, the Customer Data and Documentation in or into any part of the Territory or elsewhere complies with all export and other laws.
4.10 Clauses 4.5 to 4.9 (inclusive) shall survive termination or expiry of the Agreement.
5 CHANGES TO SERVICES AND TERMS
5.1 Lune may at its absolute discretion make, and notify the Customer of, updated versions of the documents referred to in any part of the Agreement (excluding in each case the Order Form) from time to time by notifying the Customer of such update by e-mail (together with a copy of the update or a link to a copy of the update) or by any other means which Lune elects (Update Notification).
5.2 The document(s) subject to such Update Notification shall replace the preceding version of the same document(s) for the purposes of the Agreement from the date 30 Business Days’ after Update Notification of such revised document(s) (the Update) (or at such later date as Lune may specify).
6 CONFIDENTIALITY
6.1 Each Party (the “Receiving Party”) acknowledges that, in the course of the Agreement, it may obtain Confidential Information from the other Party, (the “Disclosing Party”). The Receiving Party shall keep in confidence all Confidential Information disclosed by the Disclosing Party and shall not use Confidential Information except in furtherance of the Agreement. The Receiving Party shall not disclose any Confidential Information to any person without the Disclosing Party’s prior written consent except that the Receiving Party may disclose the Confidential Information to its officers, employees, independent contractors and agents (the “Representatives”) on a “need-to-know” basis and strictly in relation to the provision of the Services, provided that such Representatives are bound by a written Agreement with materially the same terms and conditions as this clause and the Receiving Party remains ultimately liable for any breach thereof.
6.2 The obligations of confidentiality shall continue during the term of the Agreement and thereafter, unless and until such Confidential Information falls within one of the exceptions outlined below where the Receiving Party can document:
6.2.1 is in the public domain as a result of no act or omission of the Receiving Party or its Representatives.
6.2.2 is received by the Receiving Party from third parties without restriction and without breach of a duty of nondisclosure by such third party;
6.2.3 was independently developed by the Receiving Party without reliance on the Confidential Information; or
6.2.4 is required to be disclosed by operation of law or by order of a court or administrative body of competent jurisdiction (provided that, where permitted under law, prior to such disclosure, the Receiving Party shall first give notice to the Disclosing Party such that the Disclosing Party has the opportunity to contest such order or requirement of disclosure or seek appropriate protective order).
6.2.5 Any breach or threatened breach by the Receiving Party of an obligation under the Agreement may cause the Disclosing Party immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently, the Disclosing Party has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the Receiving Party and its Representatives or to compel specific performance of this clause.
6.3 The Receiving Party must notify the Disclosing Party in writing, giving full details known to it immediately, when it becomes aware of any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information, or any actual, suspected, likely or threatened theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.
6.4 This clause 6 shall survive the termination or expiry of the Agreement for a period of ten years.
7 LUNE SERVICES
7.1 Transaction Data Enrichment and Categorization Solution. Refers to the solution that provides transaction enrichment service using Lune technology. The service is provided through an API that is directly consumed by the Customer to get the enriched transactions back. The API can be consumed in near-real-time or in batch based on the Customer’s needs. Enrichment results may include transaction category, subcategory, brand name, brand logo and URL. A Client Portal and feedback API may be provided for the Customer to submit correction requests to the enrichment results, which may or may not be adopted by Lune.
7.2 Personal Finance Management Software Development Kit (SDK) Solution. Refers to ready-made software development kit components which enables the Customer to embed and manage them in its mobile application to provide its customers with a personalised finance management experience. The system contains expense management, budget setting and activity tracking for all their spendings among other modules as updated from time to time. The SDK supports two operating systems which are iOS and Android.
7.3 Insights Dashboard Solution. Refers to the solution that enables the Customer to gain insights on its customers’ aggregate demographic data and the trends of their spending behaviour, showing a breakdown of the categories and brands they spend on.
7.4 Smart Nudges Solution. Refers to the solution that enables Customer to design and launch targeted campaigns to its end customers based on their spending parameters.
7.5 Professional Services. Refers to any Professional Services requested by Customer and agreed on in a Statement of Work. For example, customization of a PFM SDK component specific to Customer requirements.
8 ACCESS TO SERVICES
8.1 Upon Order Acceptance and subject to the terms of the Agreement, Lune hereby grants to the Customer a non- exclusive, royalty-free, non-transferable license, without the right to grant sublicences, of access to and use of the Services during the Term within the jurisdiction stated in the Order Form for the Permitted Purpose.
8.2 The Customer acknowledges that access to the Services may take up a reasonable period of time from Order Acceptance to initial set up and the implementation period for certain solutions will be determined by mutual agreement between the parties. In all cases, the use of the Services is subject to the Customer’s compliance with the Agreement and the requirements identified in the Agreement (including all minimum system requirements).
8.3 The Customer is responsible of designating an Authorised User (or “users”) as an administrator (or “master” administrator”) with control over Customer’s Services account, including management of Authorised Users and Customer Data.
8.4 The Customer undertakes that the Customer will receive a single API key for their use of the Services. The Customer is responsible for ensuring that this API key is kept confidential and used only by Authorized Users within their organization.
9 PARTY OBLIGATIONS
9.1 The Parties shall use all reasonable endeavors to prevent any unauthorized access to, or use of, any systems, services or materials in relation to the Agreement; and promptly notify the other party in the event of any such unauthorised access or use.
9.2 Each party remains responsible and liable to the other party, its Affiliates, third party providers and subcontractors against any claims, direct damages or liabilities arising from its or its Representatives’ acts or omissions.
9.3 The Customer shall not during the course of its use of the Services:
9.3.1 remove any compliance and/or copyright notice and/or any other proprietary notice (as applicable) from the Lune Services;
9.3.2 allow access to, provide, divulge or make available any aspect of the Lune Service, Lune Documentation, including the terms of any legal Agreement between Customer and Lune, to any third party (excluding Affiliates) without Lune's express written consent;
9.3.3 do or permit to be done any act or omission in relation to the performance of its obligations under the Agreement which does or may adversely materially affect the reputation, goodwill, or image of Lune;
9.3.4 access, store, distribute or transmit any Viruses, or any material that (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; or (ii) facilitates illegal activity, depicts sexually explicit images, promotes unlawful violence; or (iii) is discriminatory or otherwise illegal or causes damage or injury to any person or property; (iv) contains any unsolicited or unauthorised advertising, promotional or marketing materials; or (v) encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law or regulation.
9.3.5 except as may be allowed by any applicable law which is incapable of exclusion by Agreement between the Parties and except to the extent expressly permitted under the Agreement; Customer shall not during the course of its use of the service (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media or by any means; (ii) attempt to decipher, decompile, reverse compile, disassemble, reverse engineer, translate, screen scrape or otherwise reduce to derive source code, algorithms, tags, specification, architecture, structure or other elements of the Lune Services, in whole or in part; (iii) cache transaction requests (i.e. not call the API for every transaction) to generate independent Enriched Transaction Data, access all or any part of the Services or use Enriched Transaction Data in order to build a product or service which competes with or replaces the Services; or (iv) work around any technical limitations in the Services.
9.3.6 Share enriched transaction data with other transaction data enrichment, personal finance management or financial data analytics solution providers without the express consent of Lune.
9.3.7 Each Party shall (i) comply with all applicable laws and regulations with respect to its activities under the Agreement including applicable data protection laws in the Jurisdiction (ii) obtain and shall maintain all necessary licenses, consents, and permissions necessary for the other party, its third party providers and subcontractors to perform their respective obligations under the Agreement.
10 FEES AND PAYMENT
10.1 Lune shall invoice the Customer and the Customer shall pay the Fees in accordance with the provisions of the Agreement.
10.2 The Customer acknowledges that invoicing terms may vary based on the specific terms agreed between Lune and the Customer.
10.3 In the event that Lune doesn’t receive the payment of Fees within fifteen (15) days after the due date in accordance with the payment terms set out in the Agreement, subject to a further fifteen (15) days written notice, and without prejudice to any other rights and remedies of Lune, Lune may, without liability to Customer, revoke any or all discounts and special conditions granted as stated in the Agreement, and disable Customer’s API Key, account and access to all or part of the Services and Lune shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid.
10.4 All amounts stated or referred to in the Agreement are non-cancellable and non-refundable unless stated elsewhere in the Agreement and are exclusive of Value Added Tax which shall be added to Lune's invoice(s) at the applicable rate pursuant to the respective laws and regulations. The Customer will pay all taxes and duties assessed in connection with the Agreement. The Customer shall pay all Fees in full without set off or counterclaim.
10.5 Lune shall be entitled to increase the Fees for any and all Services by notice to the Customer provided that Lune shall not be entitled to increase the Fees on less than six weeks prior notice or more than once every 12 months.
10.6 Lune shall have the right to charge interest on overdue invoices at the rate of 5% per annum. calculated from the date when payment of the invoice becomes due for payment up to and including the date of actual payment whether before or after judgment.
11 SERVICE LEVELS, SUPPORT AND MAINTENANCE
11.1 The “Scheduled Service Availability Hours” for the Services are 24 hours a day, 7 days a week, 365 days a year.
11.2 Lune shall use commercially reasonable efforts to ensure that the Services are available for 99% of the Scheduled Service Availability Hours during a calendar month.
11.3 Lune shall provide the Customer with at least 24 hours advance notice of any planned downtime to perform scheduled maintenance, including system defect and incident resolution, backup and upgrade functions for the Services.
11.4 In addition to complying with the Availability Service Level, Lune shall use commercially reasonable efforts to correct, repair and/or replace, any failure, malfunction, defect, problem or non-conformity in the Services identified by the Customer.
11.5 The Customer may contact Lune for support in relation to the Services by contacting support@lunedata.io or the support ticketing systems.
11.6 The applicable severity levels shall be reasonably determined by the Customer at the time of notification to Lune during Business Hours, in accordance with the table below:
12 WARRANTIES AND DISCLAIMER
12.1 Each party warrants that it has the full corporate power (i) to enter into the Agreement, (ii) to carry out its obligations hereunder, and (iii) to grant the rights herein granted to the other party.
12.2 The Customer warrants that Customer Data, material, content or links provided to Lune by or on behalf of the Customer: (i) are owned by Customer or are provided with the express consent from the third party holding any ownership rights (including copyright) over such material, or, alternatively, are in the public domain, and are not owned by any third party or otherwise covered by copyright laws; (ii) do not breach the rights of any person or entity, including rights of publicity, privacy, or under applicable data protection laws.
12.3 Other than with respect to the express warranties set forth herein, the Services are provided “as is” and all warranties express or implied, representations, conditions and all other terms of any kind whatsoever implied by statute or common law, including those of non-infringement, merchantability and fitness for a particular purpose, all are, to the fullest extent permitted by applicable law, are hereby disclaimed and excluded by Lune from the Agreement. The Customer is solely responsible for determining the suitability of the Services for its use in light of any applicable legislation or regulations including without limitation data protection laws.
12.4 Lune does not warrant that the Customer’s use of the Services will be uninterrupted or error-free or that the Services will operate in combination with third party services used by the Customer except where otherwise agreed. The Service may be subject to limitations, delays and other problems inherent in the use of the internet and electronic communications. Lune is not responsible for any delays, delivery failures, or other damage resulting from the transfer of data over communications networks and facilities, including the internet.
12.5 Subject to the restrictions in Clause 9.3.6, if the Customer chooses to use the Services with third-party platforms, it’s use of third-party platforms would then be subject to the Customer’s Agreement with the relevant provider and not this Agreement. Lune does not control and has no liability for third-party platforms, including their security, functionality, operation, availability or interoperability or how the third-party platforms or their providers use Customer Data. If the Customer enables a third-party platform with the Services, Lune may access and exchange Customer Data with the third-party platform on the Customer’s behalf.
12.6 Lune reserves the right to introduce new or enhanced features and functionalities to the Services.
12.7 The warranties in clause 12 are subject to the limitations set out in clause 18 and shall not apply to the extent that any error in the Services arises as a result of:
12.7.1 incorrect operation or use of the Services by the Customer, any Authorised User (including any failure to follow the Documentation or failure to meet minimum specifications);
12.7.2 use of any of the Services other than for the purposes for which it is intended;
12.7.3 use of any Services with other software or services or on equipment with which it is incompatible (unless Lune recommended or required the use of that other software or service);
12.7.4 any act by any third party (including hacking or the introduction of any virus or malicious code);
12.7.5 any modification of Services (other than that undertaken by Lune or at its direction); or
12.7.6 any breach of the Agreement by the Customer (or by any Authorised User).
12.8 The Customer acknowledges that no liability or obligation is accepted by Lune (howsoever arising whether under contract, tort, in negligence or otherwise):
12.8.1 that the Services shall meet the Customer’s individual needs, whether or not such needs have been communicated to Lune;
12.8.2 that the operation of the Services shall not be subject to minor errors or defects; or
12.8.3 that the Services shall be compatible with any other software or service or with any hardware or equipment except to the extent expressly referred to as compatible in the Documentation.
12.9 Other than as set out in this clause 12, and subject to clause 18, all warranties, conditions, terms, undertakings or obligations whether express or implied by statute, common law or otherwise and including any implied terms relating to quality, fitness for any particular purpose or ability to achieve a particular result are excluded to the extent permitted by law.
13 CUSTOMER DATA
13.1 The Customer shall own all right, title and interest in and to all of Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data. Customer hereby grants Lune a non-exclusive, royalty free, worldwide and fully paid license to process Customer Data to the extent contemplated by the Agreement.
13.2 In providing its Services under the Agreement, Lune may be required to process Personal Data on Customer’s behalf. In such circumstances, the Parties record their intention that the Customer and its Representatives (as applicable) shall be the data controller and Lune shall be a data processor and each party shall comply with the applicable data protection laws.
13.3 If Lune becomes aware of any allegation that any Customer Data may not comply with any part of the Agreement Lune shall have the right to permanently delete or otherwise remove or suspend access to any Customer Data which is suspected of being in breach of any of the foregoing from the Services (in each case without the need to consult the Customer). Where reasonably practicable and lawful Lune shall notify the Customer before taking such action.
13.4 Customer acknowledges that Lune may collect and use anonymised data from the Software relating to outcomes, usage data and other information solely for the purposes of improving the user experience and providing value added services. This data shall be irreversibly anonymised and shall therefore not be considered personal data under the revelant Data Protection Laws.
13.5 Save for its obligations under applicable Data Protection Laws and data back up as set out in the Agreement, and except for the event of wilful misconduct and gross negligence, Lune and its licensors, agents or subcontractors shall not be responsible or liable for (i) the use, deletion, correction, destruction, damage, loss or failure to store any data, or (ii) any unauthorised access to, or alteration of, transmissions or data, or any material, information or data sent or received provided Lune has taken all reasonable steps to prevent this.
14 INTELLECTUAL PROPERTY RIGHTS
14.1 All Intellectual Property Rights in and to the Services (including in all Applications, Documentation, enriched transaction data and all Lune Materials) belong to and shall remain vested in Lune or the relevant third party owner. To the extent that the Customer, any of its Affiliates or any person acting on its or their behalf acquires any Intellectual Property Rights in the Applications, Documentation, Lune Materials or any other part of the Services, the Customer shall assign or procure the assignment of such Intellectual Property Rights with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to Lune or such third party as Lune may elect. The Customer shall execute all such documents and do such things as Lune may consider necessary to give effect to this clause 14.1.
14.2 Lune has no obligation to deliver any copies of any software, source code or any other proprietary software to the Customer in connection with the Agreement or the Services.
14.3 Lune may use any feedback and suggestions for improvement relating to the Services provided by the Customer or any Authorised User without charge or limitation (Feedback). The Customer hereby assigns (or shall procure the assignment of) all Intellectual Property Rights in the Feedback with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to Lune at the time such Feedback is first provided to Lune.
14.4 The Customer hereby waives (and shall ensure all relevant third parties have waived) all rights to be identified as the author of any work, to object to derogatory treatment of that work and all other moral rights in the Intellectual Property Rights assigned to Lune under the Agreement.
14.5 Except for the rights expressly granted in the Agreement, the Customer, any Authorised User, any Customer Affiliate and their direct and indirect sub-contractors, shall not acquire in any way any title, rights of ownership, or Intellectual Property Rights of whatever nature in the Services (or any part including the Applications or Documentation) and no Intellectual Property Rights of either party are transferred or licensed as a result of the Agreement.
14.6 This clause 14 shall survive the termination or expiry of the Agreement.
15 DEFENCE AGAINST INFRINGEMENT CLAIMS
15.1 Subject to clauses 15.2 and 15.5, each party shall:
15.1.1 defend at its own expense any claim brought against the other party by any third party alleging that the other party’s use of the Services infringes any copyright, database right or registered trade mark, registered design right or registered patent (an IP Claim); and
15.1.2 pay, subject to clause 15.3, all costs and damages awarded or agreed in settlement or final judgment of an IP Claim.
15.2 The provisions of clause 15.1 shall not apply unless the party seeking indemnity (the “Indemnified Party”):
15.2.1 notifies the other party (the “Indemnifying Party”) within 15 days upon becoming aware of any actual or threatened IP Claim and provides full written particulars;
15.2.2 makes no comment or admission and takes no action that may adversely affect the Indemnifying Party’s ability to defend or settle the IP Claim;
15.2.3 provides all assistance reasonably required by the Indemnifying Party subject to the Indemnifying Party paying the Indemnified Party’s reasonable costs;
15.2.4 gives the Indemnifying Party sole authority to defend or settle the IP Claim as the Indemnifying Party considers appropriate; and
15.2.5 makes payment of all fees due to the Indemnifying Party, if applicable
15.3 The provisions of clause 15 shall apply to any payment of costs and damages awarded or agreed in settlement or final judgment of an IP Claim under clause 15.1.
15.4 In the event of any IP Claim Lune may elect to terminate the Agreement immediately by written notice. This clause 15.4 is without prejudice to the Customer’s rights and remedies under clauses 15.1.
15.5 Lune shall have no liability or obligation under this clause 15 in respect of (and shall not be obliged to defend) any IP Claim which arises in whole or in part from:
15.5.1 any modification of the Services (or any part) without Lune’s express written approval;
15.5.2 any Non-Supplier Materials;
15.5.3 any Customer Data;
15.5.4 any Open Source Software;
15.5.5 any breach of the Agreement by the Customer;
15.5.6 installation or use of the Services (or any part) otherwise than in accordance with the Agreement and the Documentation; or
15.5.7 installation or use of the Services (or any part) in combination with any software, hardware or data that has not been supplied or expressly authorised by Lune.
15.6 Subject to clause 15.7, the provisions of this clause 15 set out the Customer’s sole and exclusive remedy (howsoever arising, including in contract, tort, negligence or otherwise) for any IP Claim.
16 INDEMNITY
16.1 If any action shall be brought against one of the Parties hereto in respect to which indemnity may be sought against the other party (the "Indemnifying Party"), the Indemnifying Party’s obligation to provide such indemnification will be conditioned on prompt notice of such claim (including the nature of the claim and the amount of damages and nature of other relief sought) being provided to the Indemnifying Party by the party against which such action is brought (the "Indemnified Party"). The Indemnified Party shall cooperate with the Indemnifying Party in all reasonable respects in connection with the defence of any such action at the expense of the Indemnifying Party. The Indemnifying Party will, upon written notice to the Indemnified Party, conduct all proceedings or negotiations in connection with the action, assume the defence thereof, including settlement negotiations in connection with the action, and will be responsible for the costs of such defence, negotiations and proceedings. The Indemnifying Party will have sole control of the defence and settlement of any claims for which it provides indemnification hereunder, provided that the Indemnifying Party will not enter into any settlement of such claim without the prior approval of the Indemnified Party, which approval will not be unreasonably withheld. The Indemnified Party shall have the right to retain separate counsel and participate in the defence of the action or claim at its own expense.
16.2 This clause 16 shall survive termination or expiry of the Agreement.
17 RELIEF
17.1 To the maximum extent permitted by law, Lune shall not be liable (under any legal theory, including negligence) for any breach, delay or default in the performance of the Agreement to the extent the same (or the circumstances giving rise to the same) arises or was contributed to by any Relief Event.
18 LIMITATION OF LIABILITY
18.1 Nothing in the Agreement limits or excludes liability of either party in respect of any claims for death or personal injury caused by wilful misconduct and gross negligence, fraud or any other liability which cannot be excluded or limited by law.
18.2 To the maximum extent permitted by applicable law, either party will not have any liability to the other party or any Authorised Users for any lost profits, loss of business, loss of revenue, loss of data, reputational damage, or for any indirect, special, incidental, punitive, or consequential damages however caused and under any theory of liability whether or not Lune has been advised of the possibility of such.
18.3 To the maximum extent permitted by applicable law, Lune’s and its Affiliates total aggregate liability arising out of or related to the Agreement or the Services or any third party providers’ services under any theory of law (including liability for negligence or breach of statutory duty or an indemnity claim) shall not exceed the total amount of the Fees paid by Customer in the one year preceding the claim under which the liability has arisen.
19 SUSPENSION
19.1 Lune may suspend access to the Services (or any part) to all or some of the Authorised Users if:
19.1.1 Lune suspects that there has been any misuse of the Services or breach of the Agreement;
19.1.2 the Customer fails to pay any sums due to Lune by the due date for payment as per clause 10.3; or
19.1.3 required by law, by court or governmental or regulatory order.
19.2 Where the reason for the suspension is suspected misuse of the Services or breach of the Agreement, without prejudice to its rights under clause 20, Lune will take steps to investigate the issue and may restore or continue to suspend access at its discretion.
19.3 In relation to suspensions under clause 19.1.2, access to the Services will be restored promptly upon receipt of payment Lune in full and cleared funds.
19.4 Fees shall remain payable during any period of suspension notwithstanding that the Customer or some or all of the Authorised Users may not have access to the Services.
20 TERM AND TERMINATION
20.1 This Agreement shall commence on Order Acceptance and shall, unless otherwise terminated as provided in this clause, continue as per the Term. Unless:
20.1.1 either Party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Term or any renewal period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or renewal period; or
20.1.2 otherwise terminated in accordance with the provisions of this Agreement; and the Initial Term together with any subsequent renewal periods shall constitute the Term.
20.2 Lune may, without prejudice to its other rights or remedies, terminate this Agreement:
20.2.1 Immediately if the Customer is in material breach of any of its obligations under this Agreement and either that breach is incapable of remedy or the Customer has failed to remedy that breach within thirty (30) days after receiving written notice requiring it to remedy that breach.
20.2.2 without cause at any time on giving the Customer not less than 3 months prior written notice of termination.
20.2.3 the Customer has failed to pay any amount due under this Agreement on the due date and such amount remains unpaid within 15 Business Days after the Customer has received notification that the payment is overdue.
20.3 The Customer may, without prejudice to its other rights or remedies, terminate this Agreement:
20.3.1 immediately if Lune is in material breach of any of its obligations under this Agreement and Lune has failed to remedy that breach within thirty (30) days after receiving written notice requiring it to remedy that breach.
20.3.2 without cause at any time on giving Lune not less than 3 months prior written notice of termination and paying Lune all fees due to Lune up to and including at the actual date of termination;
20.4 On termination of this Agreement for any reason:
20.4.1 all licenses granted under this Agreement shall immediately terminate and all right to access the Services shall immediately terminate.
20.4.2 each party shall return and make no further use of any software, property, and other items (and all copies of them) belonging to the other party;
20.4.3 any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
21 CONSEQUENCES OF TERMINATION
21.1 Immediately on termination or expiry of this Agreement (for any reason), the rights granted by Lune under this Agreement shall terminate and the Customer shall (and shall procure that each Authorised User shall):
21.1.1 stop using the Services; and
21.1.2 destroy and delete or, if requested by Lune, return any copies of the Documentation in its possession or control (or in the possession or control of any person acting on behalf of any of them).
21.2 Termination or expiry of the Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of termination or expiry and shall not affect any provision of the Agreement that is expressly or by implication intended to continue beyond termination.
22 NON-SOLICITATION AND NON-COMPETE
22.1 During the Term of this Agreement and for a period of twelve (12) months following the termination or expiration of this Agreement for any reason, the Customer shall not, without the prior written consent of Lune, directly or indirectly solicit, induce, or attempt to solicit or induce any employee, contractor, or consultant of the other party to terminate their relationship with such party in order to become an employee, contractor, or consultant to or for any other person or entity.
22.2 During the term of the Agreement and for a period of twelve (12) months following the termination or expiration of this Agreement for any reason, the Customer shall not, without the prior written consent of Lune, directly or indirectly solicit, induce, or attempt to solicit or induce any customer or client of the other party to terminate or reduce its business relationship with such party in favor of entering into any business relationship with any other person or entity that offers services or products that compete with the services or products offered by the other party.
22.3 During the term of this Agreement and for a period of 2 years following its termination or expiration, the Customer agrees not to directly or indirectly develop, produce, market, or sell any software, product, or service that competes with Lune’s Services, nor to engage in any business activities that could reasonably be deemed to compete with Lune or its Affiliate.
22.4 The Customer further agrees that it will not, directly or indirectly, assist or invest in any person or entity in any activity that the Customer is prohibited from engaging in under clause 22.3, including, but not limited to, through any form of partnership, joint venture, employment, consultancy, or otherwise.
22.5 The Customer acknowledges that a breach of this clause may cause irreparable harm to Lune, for which monetary damages would not be an adequate remedy. Therefore, in addition to any other rights and remedies that may be available, Lune shall be entitled to seek injunctive relief to enforce the terms of this clause.
23 FORCE MAJEURE
23.1 Neither Party shall have any liability to the other party under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by unforeseeable acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Lune or any other party), failure of a utility service, cloud hosting services or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, pandemic, epidemic, provided that Customer is notified of such an event and its expected duration. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non- performance continues for three (3) months, the party not affected may terminate this Agreement by giving one calendar month written notice to the other party.
24 DISPUTE RESOLUTION
24.1 In the event of any dispute, difference or question arising out of, or in connection with, this Agreement or its formation (a dispute): (i) the party claiming that a dispute has arisen must give written notice to the other party setting out full particulars of the dispute; and representatives of Lune and Customer shall (a) each use best efforts to resolve the dispute through good faith negotiations and informal dispute resolution techniques; and (b) continue to perform their obligations under this Agreement as far as possible as if the dispute had not arisen, pending final settlement of the dispute.
24.2 If a dispute cannot be resolved within fourteen (14) days, that dispute shall be referred to a senior representative of Lune and of the Customer for resolution.
24.3 If a dispute cannot be resolved by the Parties' respective senior representative within an additional fourteen (14) days, then either party may resort to litigation in accordance with clause 25.8.
24.4 Dispute Resolution clauses shall be without prejudice to the stated rights of termination and in addition shall not prevent Lune or Customer from applying for injunctive relief in the case of: (i) breach or threatened breach of confidentiality; (ii) infringement or threatened infringement of its Intellectual Property rights; or (iii) infringement or threatened infringement of the Intellectual Property rights of a third party, where such infringement could expose Lune or Customer to liability.
25 MISCELLANEOUS
25.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.
25.2 This Agreement, and any documents referred to in it, constitute the whole Agreement between the Parties and supersede any previous arrangement, understanding or Agreement between them relating to the subject matter they cover.
25.3 Either party may assign on written notice all of its rights and obligations under this Agreement to (i) an Affiliate, (ii) a purchaser of all or substantially all assets related to this Agreement, or (iii) a third party participating in a merger, acquisition, sale of assets or other corporate reorganisation. Any attempt to assign this Agreement in violation of this provision shall be void and of no effect.
25.4 Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture between the Parties or authorize either Party to act as agent for the other.
25.5 Any notice to be given by either party for the purposes of the Agreement shall be sent by mail/email to the contact party whose details are set out in this Agreement. A notice delivered (i) by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9am on the first business day following delivery). A correctly addressed notice shall be deemed to have been received at the time at which it would have been delivered in the normal course of post and (ii) by email shall be deemed to have been received at 9.00am on the next working day if delivered outside working hours after transmission.
25.6 The following Clauses shall survive the termination or expiration of this Agreement: clause 6, 9, 12, 13, 14, 20, 23 and this clause 25.
25.7 This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same Agreement.
25.8 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the Dubai International Financial Centre and both Parties submit to the exclusive jurisdiction of the Dubai International Financial Centre Courts.
