By issuing an order to Lumifi Cyber, Inc. (“LUMIFI”) or any of its authorized resellers for, or using, any LUMIFI products, services and/or solutions, including any patch, update, upgrade, enhancement or other modification thereof or documentation in respect thereof (collectively, the “Products”), the customer identified on the applicable Order (“Customer”) agrees to be bound by and follow these Lumifi General Terms and Conditions (“Terms and Conditions”), which shall govern the relationship between Customer and Lumifi in respect of all Products.

BY ACCESSING AND/OR USING THE LUMIFI PRODUCTS, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS AND CONDITIONS; (B) REPRESENT THAT YOU HAVE AUTHORITY TO ENTER INTO A BINDING AGREEMENT ON BEHALF OF YOUR ORGANIZATION; AND (C) ACCEPT THESE TERMS AND CONDITIONS AND AGREE THAT YOUR ORGANIZATION IS LEGALLY BOUND BY THE FOLLOWING PROVISIONS.

1.              PRODUCTS; RIGHT TO USE

a.         Rights Granted. Subject to compliance with these Terms and Conditions, LUMIFI hereby grants to Customer, a non-exclusive, non-transferable right to access and use those Products specified in an order/quote/invoice identifying Customer that has been accepted in writing by LUMIFI or LUMIFI’s authorized reseller and for which payment of the applicable fees have been paid to LUMIFI and/or its authorized reseller.  For purposes of these Terms and Conditions, an “Order” means the contract formed between Customer, as purchaser, and LUMIFI and/or its reseller, as seller, for the grant of rights to Products to Customer, which is deemed to include these Terms and Conditions. Products may only be used for Customer’s own internal business operations within the scope of use metrics as specified in the applicable Order, and at all times strictly in accordance with all LUMIFI Product documentation ("Documentation”).

b.          Customer Support. Technical support and related services provided by LUMIFI to Customer pertaining to the Products shall be in accordance with LUMIFI’s standard customer support policies and procedures, as the same may be updated by LUMIFI from time to time.

c.           Third Party Products. Customer understands and agrees that Customer’s use of any third-party software associated with the Products (“Third Party Software”) will be governed by such third party’s license terms and conditions. Customer understands and agrees that LUMIFI is not responsible for Customer’s, its user’s, and/or any third party’s obligations relating to any Third-Party Software, and LUMIFI specifically disclaims any liability relating thereto. LUMIFI will, to the extent permitted by its vendors, pass through any warranties and indemnifications provided by the supplier of the Third-Party Software.

d.           Ownership.  LUMIFI shall retain and own all right, title and interest and all Intellectual Property in and to the Products and nothing herein shall be construed to transfer or convey to the Customer any ownership, right, title or interest in or to the Products or any Intellectual Property or any license right with respect to same not expressly granted herein.  As used herein, “Intellectual Property” shall include, without limitation, copyrights, trade secrets, service marks, trademarks (including the LUMIFI Marks, as defined below), trade names, domain names, patents, know-how, formulations, data, technology, designs, inventions, improvements, discoveries, processes, models or sales, financial, contractual and marketing information and all other intellectual or industrial property and like rights, whether or not registered, and the applications and registrations thereof;

e.   Reservation of Rights.  Customer acknowledges that in providing the Products, LUMIFI may utilize, create, and/or prepare (i) the LUMIFI name, the LUMIFI logo, the LUMIFI domain name, the product names associated with the Products and other trademarks (“LUMIFI Marks”); and (ii) certain LUMIFI and third party methodologies, information, documents, software and other works of authorship, technology, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions, look-and-feel of the Products and other tangible or intangible technical material or information (collectively "LUMIFI Technology"), and that the LUMIFI Technology is the exclusive property of LUMIFI and its licensors, contains valuable trade secrets and Confidential Information (as defined below) of LUMIFI, and is covered by Intellectual Property rights owned or licensed by LUMIFI. Other than as expressly set forth in these Terms and Conditions, no license or other rights in the LUMIFI Technology, Intellectual Property, or the Products are granted to Customer, and all such rights are hereby expressly reserved. 

f.           Restrictions.  Customer shall not for itself, any affiliate of Customer, or any third party: (i) distribute, publicly display, modify, or make derivative works based on, the LUMIFI Technology or the Products; (ii) disassemble, reverse engineer, decipher, reconstruct, translate, discover, or decompile any source code of the Products or LUMIFI Technology; (iii) sell, rent, license, assign, sublicense, transfer or make available the LUMIFI Technology or the Products to any third parties; or (iv) copy or reproduce the Products, LUMIFI Technology or Documentation, except that Customer may make a reasonable number of copies of the Documentation for its internal use.  Customer is responsible for (a) identifying and authenticating all end users of the Products (“Users”) authorized to use such Products; (b) controlling access to the Products and for maintaining the confidentiality of usernames, passwords and other account information, and (c) all activity that occurs under Customer and its Users’ usernames, passwords and accounts or resulting from Customer or its Users’ access to the Products.  LUMIFI is not responsible or liable for any harm caused by Users or any person using any login or account information of Customer or its Users.

g.          Modifications.  LUMIFI may make changes or updates to the Products and all other Products, including but not limited to technical configurations, features, security and infrastructure at any time, within or outside the Order Term (as defined below), to reflect changes in technology, usage patterns, availability of third party content and industry practices.  Customer is required to accept all patches, bug fixes, updates, maintenance and service packs (collectively, “Updates”) necessary for the proper function and security of the Products as and when released by LUMIFI.  LUMIFI is not responsible for performance, security or other issues, and LUMIFI expressly disclaims any and all warranties for any failures and other issues resulting from Customer’s failure to accept the application of any Updates that are required for the proper function, operation and security of the Products.

h.    Feedback. If Customer choses to provide input and suggestions regarding the Products (“Feedback”), then Customer hereby grants LUMIFI an unrestricted, perpetual, irrevocable, non-exclusive, fully paid, royalty-free right to use such Feedback in any manner and for any purpose, including to improve the Products, or create other products and services.

i.     Aggregated Data. LUMIFI retains the right to collect and process data regarding access and use of the Products, and to aggregate such data with that of other of its customers for preparing and issuing reports, studies, analyses, and other work product pertaining to industry or industry segment performance based on the aggregated data. LUMIFI will have exclusive ownership of all rights to, and exclusive use rights to, all such aggregate data and resulting work product.

2.              TERM & TERMINATION.

a.          Term.  Use of the Products and the rights and license granted herein is valid for the term specified in the applicable Order (“Initial Order Term”).  With respect to any Products provided un an applicable Order, the term for such Products will automatically renew for additional periods equal to the same duration as the Initial Order Term, unless either party notifies the other party of non-renewal at least thirty (30) days prior to the end of the then current Order Term; such Initial Order Term and any subsequent extension(s) collectively referred to herein as the (“Order Term”). Upon completion of the Initial Term or any renewal Order Term, fees for each subsequent renewal Order Term shall increase as follows: (i) for 1-year Order Terms: ten percent (10%); (ii) for 2-year Order Terms: twelve and one-half percent (12.5%); and (iii) for 3-year Order Terms: fifteen percent (15%).

b.    Termination.  LUMIFI may immediately terminate Customer use of Products without liability to Customer for (i) failure to pay any amount due hereunder and failure to cure within ten (10) days following written notice thereof; (ii) any actual or suspected violation of any provision of these Terms and Conditions and failure to cure within thirty (30) days following written notice thereof; or (iii) dissolves, liquidates, becomes insolvent, ceases conducting business in the ordinary course, makes a general assignment for the benefit of creditors, and/or becomes subject to voluntary or involuntary bankruptcy or liquidation proceedings.  Customer may discontinue use of Products at any time; however, (i) such action will not be deemed a termination of these Terms and Conditions or any associated payment obligations; (ii) these Terms and Conditions shall continue to apply until the end of the then-current Order Term; (iii) Customer will remain obligated to pay any outstanding fees pursuant to section 3(a) and the applicable Order; and (iv) LUMIFI may accelerate Customer’s unpaid payments or fees so that all such payment obligations become immediately due and payable.  Customer may immediately terminate this agreement if LUMIFI is in material breach of the limited warranty provided in Section 5(a) and fails to cure such breach within thirty (30) days following written notice thereof.

c.          Effects of Termination; Survival. Upon termination of an Order, all rights and licenses granted hereunder in respect of the applicable Products shall cease, and Customer shall be liable for all unpaid sums due under the applicable Order to the end of the Order Term. Upon termination of an Order, each party shall promptly return to the other, or destroy and certify in writing to the other that it has destroyed, the original and all copies, in whole or in part, in any form, all Confidential Information of the other party disclosed under the Order. Upon termination of an Order, the provisions of these Terms and Conditions (other than Customer’s right to use any Products and associated Documentation described in such Order) which should survive shall survive.

3.              Fees and Payments

a.          Fees and Payments.  Customer agrees to pay the fees for the Products in accordance with the applicable Order. Customer authorizes LUMIFI to conduct automatic debits of Customer’s designated bank account for such fees as they become payable.  Notwithstanding the foregoing, LUMIFI may invoice Customer for any applicable, outstanding fees, and Customer shall pay such invoice within fifteen (15) days of receipt thereof.  Interest shall accrue on past due amounts at the rate of the lesser of one and one half percent (1.5%) per month or the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by LUMIFI. 

b.       Automatic Debits.  When Customer places an Order for Products, Customer authorizes LUMIFI and its designated payment processors to store Customer’s designated bank account information and other related information. Customer authorizes LUMIFI to automatically debit all applicable charges for such Products from Customer’s designated payment account, including via ACH debit for bank accounts on the date such charges become due. This authorization to initiate ACH debit transactions will remain in full force and effect until LUMIFI has received written notice revoking such authority from Customer by email at [email protected] at least thirty days (30) in advance of the date the applicable charges for the Products become due. Because these are electronic transactions, these funds may be withdrawn from Customer’s designated bank account immediately. In the case of an ACH debit transaction that is rejected for insufficient funds, Customer understands that LUMIFI may at its discretion attempt to process the debit in the amount of the applicable paid product again within thirty (30) days and LUMIFI may separately impose a fee of $25 for each transaction returned for insufficient funds, as permitted by applicable law. Customer certifies that it has all rights necessary as an authorized user of Customer’s bank account and Customer will not dispute these scheduled transactions with such bank so long as the transactions correspond to this Agreement, the applicable Order, and/or any other applicable terms for such Product.

c.           Fee Disputes.  Customer must notify LUMIFI in writing if Customer disputes any portion of any fees paid or payable by Customer under this agreement or any Order.  Customer must provide written notice to LUMIFI within thirty (30) days of the applicable charge and LUMIFI will work together with Customer to resolve the applicable dispute promptly.  If customer does not provide LUMIFI with written notice of Customer’s fee dispute within this thirty (30) day period, Customer will not be entitled to dispute any fees paid or payable by Customer.

d.          Taxes.  All amounts and fees stated or referred to in this agreement or any Order are exclusive of taxes, duties, levies, tariffs, and other governmental charges (collectively, “Taxes”).  Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than taxes based on LUMIFI’s net income.

e.        Audit and Attestation. Customer agrees to keep accurate books and records detailing its use of the Products. On a quarterly basis, LUMIFI shall have the right to inspect and audit (i) Customer’s systems; and (ii) such books of account and records to verify Customer’s use of the Products in accordance with these General Terms and Conditions. LUMIFI may require Customer to complete an annual attestation of its access and use of the Products, and LUMIFI may also use monitoring functionality in the Products that reports data to LUMIFI regarding Customer’s access and use. If any audit and/or attestation reveals unauthorized use, reproduction, distribution, or other unauthorized exploitation of the Products, then, in addition to any other rights or remedies available to LUMIFI under these Terms and Conditions or pursuant to applicable law, Customer will promptly pay LUMIFI all additional fees associated with such contrary use of the applicable Products.

4.              CONFIDENTIALITY.

a.         Confidential Information. “Confidential Information” means the terms of any Order and all confidential and proprietary information of LUMIFI or Customer, including without limitation all business plans, product plans, financial information, software, designs, formulas, methods, know-how, processes, materials provided to Customer in the course of using the Products, and technical, business and financial data of any nature whatsoever (including, without limitation, any marketing, pricing and other information regarding the Products), which may be designated as being confidential or which, under the circumstances surround disclosure, ought to be treated as confidential.  Confidential Information shall not include information that is (i) rightfully in the receiving party’s possession without obligation of confidentiality prior to receipt from the disclosing party; (ii) a matter of public knowledge through no fault of the receiving party; (iii) rightfully furnished to the receiving party by a third party without restriction on disclosure or use; or (iv) independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information.  Each party shall (i) use Confidential Information of the other party only for the purposes of exercising rights or performing obligations in connection with an Order and use by the Customer of the Products, and (ii) use at least the same degree of care as such party employs with respect to its own Confidential Information of a like-kind nature, but in no case less than a commercially reasonable standard of care to maintain confidentially and to protect from disclosure to any third parties any Confidential Information disclosed by the other party.  The obligation with respect to Confidential Information shall continue for a period from the date hereof until three (3) years following the termination date of all Orders for Customer’s use of any Products, provided, however, that Confidential Information that constitutes, contains or reveals, in whole or in part, LUMIFI proprietary rights or trade secrets shall not be disclosed by Customer at any time.  Notwithstanding the foregoing, a receiving party may disclose Confidential Information pursuant to a valid order of a court or authorized government agency provided that the receiving party has given the disclosing party prompt notice, to the extent legally permissible, so that the disclosing party will have an opportunity to defend, limit or protect against such disclosure. Upon expiration of each Order, the receiving party agrees to return or destroy any and all Confidential Information disclosed by the other party pursuant to that Order.

b.          References.  LUMIFI may identify Customer and its logo in sales and marketing materials as a customer unless and until Customer expressly objects in writing.

c.         Performance Tests.  Customer may not disclose the results of any performance tests or analysis of a Product (including benchmarking) to any third party without LUMIFI’s prior written approval.

5.              LIMITED WARRANTY.

a.           Limited Warranty and Remedies.  During an Order Term, LUMIFI shall provide the Products described in the applicable Order in conformance in all material respects to the Order and the Documentation for the Products.  Customer must notify LUMIFI of any breach of its limited warranty within ten (10) days after the date on which such breach first occurs.  This limited warranty does not apply (i) in the event of any alteration of the Products or any use thereof other than as permitted hereby or in accordance with the applicable Documentation, (ii) to any information or data, including but not limited to threat intelligence data and links, provided by third parties or LUMIFI and included in the Products, which are included as-is or (iii) to any software used in connection with the Products.  CUSTOMER’S EXCLUSIVE REMEDY FOR ANY BREACH OF THE LIMITED WARRANTY PROVIDED IN THIS SECTION, AND LUMIFI’S SOLE LIABILITY, SHALL BE THE CORRECTION OF THE DEFICIENT PRODUCT THAT CAUSED THE BREACH OF WARRANTY, WITHOUT CHARGE, OR IF LUMIFI IS UNABLE TO CORRECT THE DEFICIENCY IN THE PRODUCTS IN A COMMERCIALLY REASONABLE MANNER, LUMIFI WILL REFUND ALL FEES RECEIVED BY LUMIFI FOR THE PRODUCTS PURSUANT TO THE ORDER PRO RATED FOR THE REMAINING ORDER TERM.

b.       Disclaimer and Exclusions. EXCEPT AS EXPRESSLY STATED IN SECTION 5(a) ABOVE, LUMIFI (INCLUDING ITS AFFILIATES, SUPPLIERS, RESELLERS, SUBCONTRACTORS, EMPLOYEES AND AGENTS) PROVIDES PRODUCTS “AS IS” AND MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES, WRITTEN OR ORAL, AND ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ERROR FREE OPERATION OR NON-INTRUSION DUE TO HACKING OR OTHER SIMILAR MEANS OF UNAUTHORIZED ACCESS, ANY WARRANTY RELATING TO THIRD-PARTY PRODUCTS OR THIRD-PARTY SERVICES, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE.  LUMIFI DOES NOT GUARANTY THAT (I) THE PRODUCTS WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT LUMIFI WILL CORRECT ALL ERRORS, (II) THE PRODUCTS WILL OPERATE IN COMBINATION WITH CUSTOMER’S CONTENT, APPLICATIONS, HARDWARE, SOFTWARE, SYSTEMS, SERVICES OR DATA NOT PROVIDED BY LUMIFI, (III) THE PRODUCTS WILL MEET CUSTOMER’S REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS.   CUSTOMER ACKNOWLEDGES THAT LUMIFI DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE PRODUCTS MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES AND THAT LUMIFI IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.  LUMIFI IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE PRODUCTS THAT ARISE FROM CUSTOMER’S CONTENT, CUSTOMER’S OPERATING ENVIRONMENT, CUSTOMER’S APPLICATIONS OR THIRD-PARTY CONTENT.  NOTHING HEREIN IS INTENDED TO CONSTITUTE OR CREATE ANY REPRESENTATION OR WARRANTY BY LUMIFI TO ANY THIRD PARTY, (INCLUDING END USERS), DIRECTLY OR AS A THIRD-PARTY BENEFICIARY, WITH RESPECT TO THE PRODUCTS. 

c.        Limitation on Direct Damages.  LUMIFI’S TOTAL AGGREGATE LIABILITY (INCLUDING THE LIABILITY OF ANY AFFILIATE, SUPPLIER, SUBCONTRACTOR, EMPLOYEE OR AGENT OF LUMIFI), AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH ANY PRODUCT, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY LUMIFI IN AN AMOUNT NOT TO EXCEED THE FEES PAID BY CUSTOMER FOR THE SPECIFIC PRODUCT FROM WHICH SUCH CLAIM ARISES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM HEREUNDER. NOTWITHSTANDING THE FOREGOING OR ANYTHING ELSE HEREIN, NOTHING IN THIS AGREEMENT WILL LIMIT CUSTOMER’S LIABILITY FOR PAYMENT OF FEES OR EACH PARTY’S INDEMNIFICATION OBLIGATIONS.

d.        No Indirect Damages.   NEITHER CUSTOMER NOR LUMIFI (INCLUDING THEIR RESPECTIVE SUPPLIERS, SUBCONTRACTORS, EMPLOYEES AND AGENTS) SHALL HAVE LIABILITY TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, INCOME, SAVINGS, BUSINESS, BUSINESS OPPORTUNITY, OR USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY),;

e.           Limitation Period.  Neither party may institute any action in any form arising out of an Order more than eighteen (18) months after the cause of action accrues, or in the case of nonpayment, more than two (2) years after the date of last payment.

f.           Enforceability. The foregoing limitations, exclusions and disclaimers shall apply, regardless of whether the claim for such damages is based in contract, warranty, strict liability, negligence, tort or otherwise.  Insofar as applicable law prohibits any limitation herein, the parties agree that such limitation will be automatically modified, but only to the extent so as to make the limitation permitted to the fullest extent possible under such law.  The parties agree that the limitations on liabilities set forth herein are agreed allocations or risk constituting in part the consideration for LUMIFI’s provision of Products, and such limitations will apply notwithstanding the failure of essential purpose of any limited remedy and even if a party has been advised of the possibility of such liabilities.

6.              INDEMNIFICATION.

a.          Lumifi Indemnification. LUMIFI shall (i) defend, indemnify and hold Customer and its officers, directors, employees and agents harmless from and against all claims and causes of action arising out of a third-party claim that any Products and the related materials (excluding third-party products) infringe an enforceable United States patent or copyright, and (ii) pay the resulting costs and damages finally awarded against Customer in respect of any such infringement by a court of competent jurisdiction or the amounts stated in a written settlement signed by LUMIFI. THIS SECTION STATES THE INDEMNITEE’S SOLE AND EXCLUSIVE REMEDY AND THE INDEMNITOR’S ENTIRE LIABILITY FOR THIRD-PARTY CLAIMS.

b.           Customer Indemnification. Customer shall (i) defend LUMIFI by counsel selected by Customer against any third-party claim that the materials provided by Customer or its agents for use by LUMIFI in connection with the Products infringe an enforceable United States or Canadian patent or copyright, that Customer data infringes or misappropriates any enforceable intellectual property right or violates Customer’s privacy policies or applicable laws or regulations, and (ii) pay the resulting costs and damages finally awarded against LUMIFI in respect of any such third party claim by a court of competent jurisdiction or the amounts stated in a written settlement signed by Customer.

c.       Indemnification Procedures. The foregoing obligations are subject to the following: the indemnitee (a) notifies the indemnitor promptly in writing of such claim, (b) grants the indemnitor sole control over the defense and settlement thereof (provided that the indemnitor may not settle any claims in a manner that adversely affects the indemnitee’s rights without obtaining indemnitee’s prior written consent), (c) reasonably cooperates in response to an indemnitor request for assistance, and (d) with respect to Customer as indemnitee, is not in material breach of the Terms and Conditions. Should such a Product infringement claim be made, or in LUMIFI’s opinion be likely to be made, LUMIFI may, at its option and expense, (1) procure for Customer the right to make continued use thereof, (2) replace or modify such so that it becomes non-infringing, (3) request return of the subject material, and/or (4) discontinue the use of the Products and the applicable Order and refund the portion of any pre-paid fees for the unused Order Term. LUMIFI shall have no liability under this Section 6 to the extent that the alleged infringement arises out of or relates to: (A) the use or combination of the subject Products and/or materials with third-party products or services, (B) use for a purpose or in a manner for which the subject Products and/or materials were not designed, (C) any modification to the subject Products and/or materials made by anyone other than the indemnitor or its authorized representatives, (D) any modifications to the subject Products and/or materials made by the indemnitor pursuant to the indemnitee’s specific instructions, or (E) any technology owned or licensed by the indemnitee from third parties. 

7.              GOVERNMENT REGULATIONS.

a.           Export Control. The Products and other deliverables provided by LUMIFI and/or its agents in connection therewith may be subject to governmental restrictions on (i) exports from the U.S.; (ii) exports from other countries in which such Products and deliverables may be provided or located; (iii) disclosures of technology to foreign persons; (iv) exports from abroad of derivative products thereof; and (v) the importation and/or use of such technology included therein outside of the United States (collectively, “Export Laws”). Diversion contrary to Export Laws is expressly prohibited. Customer shall, at its sole expense, comply with all Export Laws.  Customer represents that it is not a Restricted Person, which shall be deemed to include any person or entity: (1) located in or a national of Cuba, Iran, Libya, North Korea, Sudan, Syria, or any other countries that may, from time to time, become subject to U.S. export controls for anti-terrorism reasons or with which U.S. persons are generally prohibited from engaging in financial transactions; or (2) on any restricted person or entity list maintained by any U.S. governmental agency.    Certain information, products or technology may be subject to the International Traffic in Arms Regulations (“ITAR”).  This information, products or technology shall only be exported, transferred or released to foreign nationals inside or outside the United States in compliance with ITAR at Customer’s sole cost and expense.

8.              NOTICES.

a.    Notice. Any notices between the parties and required in connection with any Order shall be in writing, and shall be deemed received when delivered (i) in person; (ii) by overnight courier, upon written confirmation of receipt; (iii) by certified or registered mail, with proof of delivery; (iv) by facsimile transmission with confirmation of receipt; or (v) by email, with confirmation of receipt.  Notices shall be sent to the address, facsimile number or email address specified in the applicable Order.

9.              INDEPENDENT CONTRACTORS.

a.    Independent Contractors. The parties shall act as independent contractors for all purposes in connection with any Order and these Terms and Conditions. Nothing contained herein shall be construed as creating an employment relationship, agency, partnership, or joint venture between the parties for any purpose. Neither party shall be responsible for the acts or omissions of the other party, and neither party will have authority to speak or act for, represent or obligate the other party in any way without the prior written approval of the other party. Nothing in these Terms and Conditions or any Order shall be construed to prevent LUMIFI from contracting with or providing Products for other persons, companies, or entities, including those that compete with Customer, on any terms LUMIFI deems appropriate.

10.            NON-SOLICITATION; NO HIRE.

a.    Non Solicitation. During the term of any Order and for a period of one year after termination thereof, Customer agrees that it and its affiliates, officers, directors, employees, agents and assigns shall not, directly or indirectly, solicit, discuss employment or consultancy with, or hire any employee or consultant of LUMIFI or any of its affiliates.

11.            RETURN OF LUMIFI-OWNED EQUIPMENT

a.    Return of Equipment. Upon termination of any Order, all equipment provided by LUMIFI in connection with the Order that was not purchased and paid for in full by Customer shall be returned to LUMIFI and/or its authorized reseller promptly (but no later than 10 calendar days after termination) at Customer’s sole cost and expense.  If LUMIFI or its authorized reseller does not receive any LUMIFI-Owned Equipment within ten (10) calendar days after termination of the applicable Order, Customer shall be deemed to have purchased such LUMIFI-Owned Equipment and be liable for the purchase price therefor at LUMIFI’s standard list price, which purchase price shall be due and payable to LUMIFI on the tenth calendar day after termination of the applicable Order.

12.            MISCELLANEOUS.

a.     Entire Agreement. These Terms and Conditions, (i) shall constitute the complete understanding between LUMIFI and Customer with respect to the Products and any matter related thereto and (ii) may be modified only by a writing signed by authorized representatives of both parties.  All terms of any purchase order or similar ordering document provided by Customer, including but not limited to any pre-printed terms thereon and any terms that are inconsistent, add to, or conflict with these Terms and Conditions, shall be null and void and of no legal force or effect. In case of any conflict between any Order and these Terms and Conditions, these Terms and Conditions shall prevail unless otherwise agreed in a written instrument duly signed by an authorized representative of each party.

b.   Force Majeure. Neither party shall be liable to the other because of a failure or delay in performing its obligations hereunder on account of any force majeure event, such as strikes, riots, insurrection, terrorism, fires, natural disasters, acts of God, war, governmental action, or any other cause which is beyond the reasonable control of such party. LUMIFI shall not be liable to Customer because of failure or delay in performing its obligations hereunder on account of Customer’s failure to provide timely access to facilities, space, power, documentation, networks, files, software, and Customer personnel that are reasonably necessary for LUMIFI to perform its obligations.

c.     Assignment. Customer may not assign its rights hereunder or any Order to a third party without LUMIFI's prior written consent.  Any purported assignment in violation of these Terms and Conditions and/or any Order is null and void. This Agreement shall inure to the benefit of LUMIFI and Customer and their respective successors and assigns.

d.     Disputes. These Terms and Conditions are governed by the laws of the State of Arizona. The parties specifically agree to the venue and jurisdiction for any disputes in respect of these Terms and Conditions being exclusively in the federal and state courts situated in Maricopa County, Arizona. The prevailing party in any dispute regarding these Terms and Conditions and/or any Order shall be entitled to recover its reasonable attorney’s fees and cost from the non-prevailing party.  The parties agree that the terms and provisions of these Terms and Conditions shall be construed fairly as to all parties hereto and not in favor or against any party, regardless of which party was generally responsible for preparation.

e.   Waiver; Severability. No waiver shall be deemed a waiver of any prior or subsequent default hereunder. If any part of these Terms and Conditions, is held unenforceable, the validity of the remaining provisions shall not be affected. 

f.     Injunctive Relief. In the event of the breach or a threatened breach by Customer of the provisions of Sections 1 or 4 of these Terms and Conditions, LUMIFI, in addition and supplementary to any other rights and remedies that may be available to LUMIFI, will be entitled to seek specific performance and/or injunctive or other equitable relief against the breach or threatened breach from a court of competent jurisdiction in order to enforce or prevent any violations of the provisions hereof (without posting a bond or other security)