Terms of Use Agreement

These Terms of Use (“Terms of Use”) set forth the legally binding terms of the agreement between Luminix, Inc. (“Licensor”) and the customer (“Customer”) using the Pulsar software application (the “Application”). The Application integrates with Customer’s Salesforce account and certain social media accounts and allows access to such accounts on a mobile device. The Application is currently available in one unpaid version, but Licensor may subsequently create multiple versions that are paid or unpaid, and all such versions shall be governed by these Terms of Use.

If you are using the Application on your own behalf as an individual, then all references to the “Customer” shall mean you in your personal capacity. If you are acting as an employee, consultant or other authorized representative (“Representative”) of an entity using the Application, then “Customer” shall mean such entity.

BEFORE USING THE APPLICATION, YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS OF USE. BY USING ANY PORTION OF THE APPLICATION YOU AGREE TO BECOME BOUND BY THESE TERMS OF USE, WHICH INCLUDES THE SOFTWARE LICENSE AND LIMITED WARRANTY. IF YOU DO NOT AGREE WITH THESE TERMS OF USE, YOU SHOULD CEASE USING THE APPLICATION AND UNINSTALL IT. IF YOU ARE A REPRESENTATIVE OF AN ENTITY, BY USING THE APPLICATION, YOU ARE CERTIFYING THAT YOU ARE AUTHORIZED TO LEGALLY BIND THE ENTITY TO THESE TERMS OF USE. WE ADVISE THAT YOU PRINT AND RETAIN A COPY OF THESE TERMS OF USE. THE MOST CURRENT VERSION OF THESE TERMS OF USE WILL ALWAYS BE AVAILABLE FOR YOUR REVIEW UNDER THE “TERMS OF USE” LINK FOUND ON OUR WEBSITE.

DEFINITIONS.

1. DEFINITIONS.
   • “Customer Data” means any information provided by Customer to the Application and stored locally on the Customer’s hardware or on the Customer’s Salesforce or social media accounts.
   • “Documentation” means any documentation describing the use and functionality of the Application available at Licensor’s website.
   • “End-User” means the Customer, if the Customer is an individual, or the Representative, if the Customer is an entity.
   • “Subscription Fees” mean any fees paid by Customer for the right to access and use the Application. The Application currently does not require any Subscription Fees, though Licensor reserves the right to impose Subscription Fees in its discretion.
   • “Taxes” means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes.
   • “Term” shall mean the period between the date on which Customer accepts these Terms of Use and the date of termination of these Terms of Use.

2. TERMS OF LICENSE.
   • 2.1 APPLICATION LICENSE. Subject to these Terms of Use and payment of any applicable Subscription Fees, Licensor hereby grants to Customer a limited term, non-sublicensable, non-transferable, and non- exclusive license during the Term to use the Application on one or more mobile devices controlled or owned by an End-User for Customer’s internal business purposes and solely in accordance with the Documentation. Customer may not make the Application available over a network where it could be used by multiple devices simultaneously. Customer may copy the Application only for backup purposes. The license granted in this Section 2.1 is limited to the registered End-User. End-User subscription licenses are for a specific, named End-User and cannot be shared or used by more than one individual End-User. Customer is responsible for all activities conducted under its End-User logins.
   • 2.2 UPDATES. These Terms of Use will govern any upgrades provided by Licensor that replace and/or supplement the Application, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
3. CUSTOMER RESTRICTIONS AND RESPONSIBILITIES RELATING TO USE OF THE APPLICATION.
   • 3.1 LEGAL USE OF APPLICATION. Customer shall not, either directly, or through an End-User, employee, agent or other third party, use the Application in a manner that is prohibited by any law or regulation, that violates any third party rights or that facilitates the violation of any law, regulation or third party rights, or that would disrupt any third party use or enjoyment of any services provided by Licensor.
   • 3.2 RESTRICTIONS ON USE OF APPLICATION. Customer shall not and shall ensure that any End- Users do not: (a) resell, sublicense, lease, time-share or otherwise make the Application available to any third party except as expressly permitted herein; (b) use the Application to send or store infringing or unlawful material or material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (c) modify, copy or create derivative works based on the Application; (d) reverse engineer, decompile, or disassemble the Application; (e) access the Application for the purpose of building a competitive Application or service or copying its features or user interface; or (f) violate any applicable terms of use or restrictions on use related to Customer’s Salesforce account or social media accounts.
   • 3.3 CUSTOMER BREACH. IF CUSTOMER FAILS TO COMPLY WITH THE OBLIGATIONS SET FORTH IN THIS SECTION 3, LICENSOR RESERVES THE RIGHT TO SUSPEND THE CUSTOMER’S USE OF THE APPLICATION UNTIL SUCH FAILURE IS REMEDIED OR TERMINATE CUSTOMER’S USE OF THE APPLICATION.
4. OWNERSHIP.
   • 4.1 OWNERSHIP OF INTELLECTUAL PROPERTY. As between the parties, Licensor or its third- party providers shall retain all ownership rights in the Application and the technology, software, products, processes, algorithms, user interfaces and know-how related to the Application. Customer shall retain all ownership rights in its Customer Data. No license, right or interest in any Licensor or Customer trademark, copyright, trade name or service mark is granted hereunder.
   • 4.2 LICENSE OF FEEDBACK. Licensor shall have a royalty-free, fully paid-up, nonexclusive, perpetual, irrevocable, worldwide, transferable, sublicensable license to use, copy, modify, or distribute, including by incorporating into the Application, any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its End-Users relating to the Application.
5. SUBSCRIPTION FEES FOR CERTAIN VERSIONS OF THE APPLICATION.
   • 5.1 SUBSCRIPTION FEES. Licensor may in the future charge Subscription Fees for certain versions of the Application. Customer shall be charged monthly in advance for Subscription Fees, in accordance with Licensor’s then current billing procedures. All payment obligations are non-cancelable and upon payment all payments made by Customer are non-refundable. Any payment not received from Customer by the due date may result in suspension of Customer’s ability to access the Application until payment is made.
   • 5.2 TAXES NOT INCLUDED. Unless otherwise provided, Licensor’s fees do not include any Taxes, and Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding Taxes based on Licensor’s net income or property. If Licensor has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount shall be charged to and paid by Customer, unless Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority.
   • 5.3 MONITORING OF END-USER LICENSES. Customer is responsible for monitoring Customer’s use of the Application by End-Users. If Customer’s use of the Application is found to be greater than that contracted for, at Licensor’s option Customer will be charged for the additional End-User license Subscription Fees for the period commencing on the date of use of such additional End-User licenses, or Licensor may suspend all use of Application until such payment or terminate all use of the Application.
6. NO WARRANTIES.
   • 6.1 NO WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION IS PROVIDED “AS-IS” AND NEITHER LICENSOR NOR ITS THIRD PARTY PROVIDERS MAKE, AND YOU RECEIVE, NO WARRANTY (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THE APPLICATION OR ANY USE THEREOF. LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN, CONDITION, CAPACITY, PERFORMANCE, TITLE, ACCURACY, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT LICENSOR DOES NOT WARRANT THAT THE APPLICATION WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL SOFTWARE ERRORS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR, ITS EMPLOYEES, DISTRIBUTORS, DEALERS OR AGENTS SHALL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO A PORTION OF THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS FROM THE DATE OF DELIVERY OF THE APPLICATION. THIS WARRANTY GIVES USER SPECIFIC LEGAL RIGHTS. CUSTOMER MAY HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION. LICENSOR DOES NOT MAKE ANY REPRESENTATION THAT USE OF THE APPLICATION IS APPROPRIATE OR AVAILABLE FOR USE IN LOCATIONS OUTSIDE OF THE UNITED STATES OR WHERE IT IS ILLEGAL OR PROHIBITED BY LAW OR LICENSOR.
   • 6.2 NO WARRANTY AGAINST LOSS OF DATA. Without limiting the generality of the foregoing disclaimers, Customer acknowledges that it is Customer’s responsibility to backup Customer Data and any other data stored in the Application. The Application is not designed to operate without error. In no event will Licensor assume liability for any loss or corruption of Customer Data or other data stored in the Application.
7. LIMITATION OF LIABILITY.
   • 7.1 LIMITATION ON DAMAGES. In no event shall the aggregate liability of Licensor and its licensor(s), distributors and other service providers to Customer for any damages whatsoever, whether arising under contract, tort or otherwise, arising under or related to these Terms of Use, the Application or the use thereof exceed the greater of (a) $100 or (b) the amount of Subscription Fees paid to Licensor in the six months prior to the claim.
   • 7.2 WAIVER OF CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER PERSONAL INJURY OR COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO CUSTOMER’S USE OR INABILITY TO USE THE APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
   • 7.3 NO EXCEPTIONS. THE LIMITATIONS IN THIS SECTION 7 SHALL APPLY WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8. TERM AND TERMINATION.
   • 8.1 TERMINATION. These Terms of Use shall continue until terminated by either Customer or Licensor. Either party may terminate these Terms of Use without cause, or Customer may switch from one version of the Application to another, at any time by. Customer will immediately cease using the Application upon termination of these Terms and Conditions and destroy all copies of the Application upon such termination. Customer will not be entitled to a refund of Subscription Fees upon any such termination.
   • 8.2 SURVIVAL. The provisions of Sections 1, 4, 6, 7, 8 and 9 shall survive termination of these Terms of Use.
9. GENERAL TERMS.
   • 9.1 GOVERNMENT CUSTOMERS. If Customer is a federal government entity or is licensing the Application on behalf of such an entity, Licensor provides the Application and related technology, for ultimate federal government end use solely as follows: Government technical data and software rights related to the Application include only those rights customarily provided to the public as defined in these Terms of Use. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If greater rights are needed, a mutually acceptable written addendum specifically conveying such rights must be executed with these Terms of Use.
   • 9.2 INDEPENDENT CONTRACTORS. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third party beneficiaries to these Terms of Use.
   • 9.3 ENTIRE AGREEMENT. To the extent of any conflict between these Terms of Use and any other schedule or attachment, these Terms of Use shall prevail unless expressly stated otherwise. Notwithstanding any language to the contrary therein, no terms stated in a purchase order or similar ordering document (other than a mutually executed order document) shall be incorporated into these Terms of Use, and all such terms shall be void. These Terms of Use represent the entire agreement of the parties hereto, and supersede all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
   • 9.4 WAIVERS. No amendment or waiver of any provision of these Terms of Use shall be effective unless in writing and signed by Customer and Licensor. No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
   • 9.5 SEVERABILITY. If any provision of these Terms of Use is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.
   • 9.6 ASSIGNMENT. These Terms of Use will be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. Notwithstanding the above, Customer may not assign its rights or obligations under these Terms of Use, whether by operation of law or otherwise, without the prior written consent of Licensor. Any assignment in violation of this Section shall be null and void. Licensor may assign these Terms of Use in its entirety, without consent of Customer, to a successor in interest to the business to which these Terms of Use relate in connection with a merger, reorganization or asset sale.
   • 9.7 EXPORT CONTROL. Customer agrees to comply with all applicable export regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time, and with all applicable export laws and regulations of other jurisdictions with respect to the provision and use of the Application.
   • 9.8 GOVERNING LAW; VENUE. These Terms of Use will be deemed to have been made in the State of California, and the provisions and conditions of these Terms of Use will be governed by and interpreted in accordance with the laws of the State of California, without regard to conflict of laws principles thereof. EXCEPT FOR ANY ACTIONS FOR PRELIMINARY EQUITABLE RELIEF, THE EXCLUSIVE VENUE FOR ANY DISPUTE RELATING TO THIS AGREEMENT IS SAN FRANCISCO, CALIFORNIA. CUSTOMER AND LICENSOR CONSENT TO THE PERSONAL JURISDICTION OF THESE COURTS. The United Nations Convention on Contracts for the International Sale of Goods shall not apply
   • 9.9 UPDATES TO TERMS OF USE. Customer acknowledges that Licensor may update these Terms of Use from time to time, and Customer agrees to be bound by any subsequent update to these Terms of Use. The most recent version of these Terms of Use can be found at Licensor’s website at https://luminixinc.com or in the Application itself. Though Licensor will attempt to notify Customer of any material changes in the Terms of Use by sending an email to the Customer’s registered email address, it is the Customer’s responsibility to check for updates to the Terms of Use and any such update shall be effective even if Customer does not receive notice of such update. If Customer does not consent to the updated Terms of Use, Customer can uninstall and discontinue use of the Application. Customer’s continued use of the Application will constitute acceptance of the updated Terms of Use. Licensor suggests Customer print out a copy of these Terms of Use for Customer’s records. Should Customer have any questions concerning these Terms of Use, Customer may contact Licensor as set out on Licensor’s website at https://luminixinc.com.

Luminix and Pulsar are trademarks of Licensor. Salesforce is a registered trademark of Salesforce, Inc.

Updated: May 25, 2012