Terms of Service

These Enterprise Terms and Conditions (this “Agreement”) is entered into as of the Effective Date between the customer agreeing to these terms (“Customer”) and Luma AI, Inc. (“Luma”). By entering into this Agreement, whether by executing the Agreement or an Order Form, making payment for the Service, or otherwise affirmatively indicating Customer’s acceptance of the Agreement, you hereby represent and warrant that you: (a) agree to this Agreement on behalf of Customer; and (b) you have the authority to bind Customer to this Agreement. If you do not have such authority, or if you do not agree to this Agreement, you must not accept this Agreement and you may not use the Service. If you are accessing Luma’s models via the API or paying for Luma on an Enterprise plan, please also consult the Enterprise Terms of Service and API Terms of Use (as applicable).

The Service

General

Subject to Customer’s compliance with the terms of this Agreement, Luma grants Customer the right to access the Services during the Subscription Term, including to use its Output as allowed under this Agreement. Customer’s Users may internally access the Services on Customer’s behalf and may permit Authorized Users to access the APIs and receive the benefits of the Service as part of Customer Services. Customer shall be fully responsible for all actions or omissions of its Users or Authorized Users hereunder.

Access

To access the Services, Customer and its Users must register for an account (“Account”) and, in doing so, may be required to provide Luma with information (such as name, email address, or other contact information). Customer represents and warrants that the information it provides to Luma is accurate, complete, and not misleading and that it will keep it accurate and up to date at all times. Only Users, using the mechanisms designated by Luma (“Log-in Credentials”), may access and use the Services. Each User must keep its Log-in Credentials confidential and not share them with anyone else. Customer is responsible for its Users’ compliance with this Agreement and all actions taken through their Log-in Credentials. Customer will promptly notify Luma if it becomes aware of any compromise of any Log-in Credentials. Luma may Process Log-in Credentials in connection with Luma’s provision of the Services or for Luma’s internal business purposes. Luma reserves the right to terminate Accounts that are inactive for an extended period of time.

Remote App

Subject to the terms and conditions of this Agreement and the applicable Order Form, Luma grants Customer a limited, non-transferable, revocable, non-exclusive, non-sublicensable license for its Users to download an applicable Remote App onto a Supported Device to create, manage, or otherwise use its Output. Customer and its Users are responsible for installing all updates that Luma provides or makes available for download to the Remote App. Remote Apps may be made available through the Apple App Store, the Google Play Store, or other distribution channels (“Distribution Channels”). If Customer obtains a Remote App through a Distribution Channel, Customer may be subject to additional terms and conditions of the Distribution Channel. This Agreement is only between Customer and Luma, and not with the Distribution Channel.

Restrictions

Except as otherwise expressly permitted in an Order Form, Customer will not (and will not permit its Users or anyone else to do any of the following: (a) access or use the Services in a manner that violates any Law or the Policies; (b) provide access to, distribute, sell, or sublicense the Services to a third party; (c) use the Services on behalf of, or to provide any product or service to, third parties on a service bureau, rental or managed services basis, provided that, the foregoing restriction does not prohibit Customers from connecting Customer Services to the Services via Luma’s APIs for internal purposes or for the purpose of providing Authorized Users with the benefits of the Services via the Customer Services; (d) use the Services to compete with Luma or in a manner otherwise detrimental to Luma’s business; (e) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to the Services; (f) modify or create derivative works of the Services or copy any element of the Services; (g) remove or obscure any proprietary notices in the Services; or (h) subject any portion of the Services or any Luma intellectual property right in any portion thereof to the terms of any “open source” license (including a license that requires, as a condition of use, modification, or distribution of technology subject to such license, that such technology or other technology combined or distributed with such technology (1) be disclosed or distributed in source code form, (2) be licensed for the purpose of making derivative works, or (3) be re-distributable at no charge). Customer acknowledges that the Services are not intended to meet any legal obligations for these uses, including HIPAA requirements, and that Luma is not a Business Associate as defined under HIPAA. Notwithstanding anything else in this Agreement, Luma has no liability for Prohibited Data or use of the Service for High Risk Activities.

Support

During the Subscription Term, if indicated in an Order Form, Luma will use commercially reasonable efforts to provide support for the Services during its normal business hours, as mutually agreed upon by the parties.

Security and Processing

Luma has implemented and will maintain reasonable technical and organizational measures designed to protect Customer Content under Luma’s control from unauthorized access, use, or disclosure (“Security Measures”). While Luma may update the Security Measures, it shall not materially diminish the effectiveness of the Security Measures. Customer is responsible to provide and maintain any hardware, software, other technology, and infrastructure that Customer require to access and use the Services including any Supported Devices described in the Documentation (together, “Customer Systems”). Customer will implement and maintain reasonable technical and organization measures designed to protect access to Customer’s Account, Log-in Credentials and Customer Systems. Each party’s rights and obligations with respect to the use and security thereof are governed by this Section 1.6.

Third-Party Technology

Use of Third-Party Technology is subject to Customer’s agreements with the relevant provider and not this Agreement. Luma does not control and has no liability for Third-Party Technology, including their security, functionality, operation, availability, or interoperability with the Services or how the Third-Party Technology or their providers use Input. By enabling any Third-Party Technology to interact with the Services, Customer authorizes Luma to access and exchange Input with such Third-Party Technology on Customer’s behalf. The Services may also contain links to third-party websites. Linked websites are not under Luma’s control, and Luma is not responsible for their content.

Third-Party AI Tools

Luma may provide you with access to certain Third-Party AI Tools in connection with your use of the Service. Third-Party AI Tools may provide you with Output. Third-Party AI Tools (and AI tools generally made available to you by Luma) may also take actions as your virtual agent in interacting with the internet or other systems when you enable such actions through the settings or prompts provided through the Service (“Actions”). By using the Service, you authorize a virtual agent or agents to take Actions on your behalf and based on your Input.

Data Privacy

Provided that you are acting on behalf of an entity rather than an individual and are using the Services to process Customer Personal Data (as defined in the DPA), the parties will comply with the DPA.

Suspension

Luma may immediately suspend Customer’s and its Users’ access to the Service if: (a) Customer breaches Section 1.4 (Restrictions) or Section 2.5 (Customer Responsibilities and Obligations); (b) Customer’s Account is 30 days or more overdue; (c) changes to Laws or new Laws require that Luma suspend the Services or otherwise may impose additional liability on us; or (d) Customer or its Users actions risk harm to any of Luma’s other customers or the security, availability, or integrity of the Services. Where practicable, Luma will use reasonable efforts to provide Customer with prior notice of the suspension. If the issue that led to the suspension is resolved, Luma will use reasonable efforts to restore Customer’s access to the Services.

Scope Limitations

Customer acknowledges and agrees that: (a) Luma may, from time to time, establish general practices and limits concerning the use of the Services, including imposing limits on the maximum period of time that Input or Output will be retained by the Services and the maximum storage space that will be allotted on Luma’s or its third-party service providers’ servers on Customer’s behalf; and (b) Luma has no responsibility or liability for the deletion or failure to store any Input or Output maintained or used in connection with the Services. Customer further acknowledges that Luma AI reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.

Generative AI and Customer Content

Input

1. Ownership. As between the parties, Customer owns and retains all right, title, and interest in and to the Input that Customer Uploads to the Services, subject to the licenses granted in this Agreement.
2. Use of Input by Luma. Customer hereby grants to Luma a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to use, host, and store the Input provided during an active Subscription Term solely as reasonably necessary to: (i) provide the Services, including without limitation to generate Output, to prevent or address service or technical problems therein, and to interact with Third-Party AI Tools; (ii) derive Usage Data; (iii) create and compile Aggregated Data; or (iv) as otherwise required by Laws.

Output

1. Ownership. As between the parties and to the greatest extent permitted by Law, Customer owns and retains all right, title, and interest in and to the Output and Luma hereby assigns to Customer all of Luma’s right, title, and interest in and to the Output. The foregoing assignment above does not include any right, title, or interest to output or rights of any third party.
2. Use of Output by Luma. Customer hereby grants to Luma a worldwide, non-exclusive, irrevocable, perpetual, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to Process, host and store the Output produced during an active Subscription Term in each case, only (i) to provide the Services and to prevent or address service or technical problems therein; (ii) derive Usage Data; (iii) create and compile Aggregated Data; or (iv) as otherwise required by Laws.

Usage Data and Aggregated Data

Notwithstanding anything to the contrary in the Agreement but subject always to the No Train Guarantee, Luma may collect and use Usage Data to develop, improve, operate, and support its products and services, including for the purposes of generating Aggregated Data. Luma will not disclose any Usage Data to any third parties unless (a) it has been deidentified or aggregated such that it does not identify Customer, Customer’s Users, Authorized Users or any third party; or (b) in accordance with Section 10 (Confidentiality) of this Agreement.

No Train Guarantee

Notwithstanding anything to the contrary in this Agreement, Luma will not train its artificial intelligence or machine learning models on Input or Output (the “No Train Guarantee”).

Customer Responsibilities and Obligations

1. Generally. Customer is solely responsible for its Input, including its content and accuracy, and is solely responsible for backing up any Customer Content. Customer’s representations and warranties with respect to Input are set forth in Section 5.1(c) (By Customer).
2. Acceptable Use Policy. Customer will not (and will not permit its Users or any other person or entity to) do any of the following:
   1. Interfere with the operation of the Services, circumvent any access or usage restrictions, or conduct any security or vulnerability test of the Services;
   2. Transmit any viruses or other harmful materials to the Services;
   3. Take any action that risks harm to others or to the security, availability, or integrity of the Services;
   4. Modify any Documentation except for Customer’s internal business purposes or publish any modified Documentation;
   5. Change any of the interfaces described in the Documentation or extend any interfaces except as described in the Documentation;
   6. Use the Services with Prohibited Data or for High Risk Activities;
   7. Access, search, or otherwise use any portion of the Services (including Output) through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than as expressly permitted in Luma’s Documentation (e.g., via public API calls);
   8. Use the Services to collect or generate personal information about another user or third party without consent;
   9. Use the Services to engage in regulated activity without complying with applicable regulations, promote or engage in any illegal activity (including the development or distribution of illegal substances, goods, or services, exploitation or harm of children, or facilitating the exchange of illegal or highly regulated goods);
   10. Use the Services to generate, upload, or transmit content that is pornographic, sexually explicit, psychologically harmful, or that could be deemed by a reasonable person to be objectionable, profane, indecent, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
   11. Use the Services for deceptive, fraudulent, or abusive purposes, including to: create deepfakes or similarly deceptive Output; impersonate any person or entity or claim a false affiliation or identity; engage in political manipulation or spread misinformation; defraud, scam, spam, mislead, bully, harass, defame, or discriminate based on protected attributes; sexualize children; or promote or incite violence or hatred;
   12. Create multiple accounts for the purposes of taking advantage of any free or discounted usage;
   13. Accessing any other account on the Services without permission;
   14. Misrepresent (1) the source of the Output, or (2) that Output is human-generated;
   15. Publish benchmarks or performance information about the Services;
   16. Provide any third party with access to any model provided through the Services other than Authorized Users via the APIs; or
   17. use the Services or any content, data, information, or other materials made available through the Services (including Output) for purposes of, directly or indirectly, creating, testing, improving, training, or otherwise developing Customer's or any third party's artificial intelligence or machine learning models, systems, architecture, weights or related technology.

Monitoring Content; Waiver

Luma is not responsible for, does not control, and does not have any obligation to monitor: (a) Input or Output; (b) any content made available by third parties; or (c) the use of the Services by its users. Notwithstanding the foregoing, Luma reserves the right to monitor any information transmitted or received through the Services (including Input and Output) for operational and other purposes, and may in its sole judgment, at any time and without notice, screen, edit, block, filter, mute, remove, or disable access to any Input or Output that violates this Agreement, is alleged to violate the rights of third parties, or is otherwise objectionable, without any liability to Customer or any user. Luma’s election to monitor (or not monitor) does not create any responsibility or liability for content or any loss or damage incurred as a result of the use thereof. Customer waives any legal or equitable right or remedy against Luma with respect to Input or Output. If notified that Input or Output allegedly violates any Laws or the rights of a third party, Luma may investigate the allegation and determine in its sole discretion whether to remove the applicable Input or Output.

Certain Acknowledgments

CUSTOMER ACKNOWLEDGES AND AGREES THAT: (A) OUTPUT MAY BE OFFENSIVE, INDECENT, OR OBJECTIONABLE; (B) OUTPUT MAY CONTAIN ERRORS, INCONSISTENCIES, OR INACCURACIES DUE TO THE QUALITY OF INPUT OR THE INHERENT TECHNICAL LIMITATIONS AND PROBABILISTIC NATURE OF MACHINE LEARNING AND ARTIFICIAL INTELLIGENCE TECHNOLOGY; (C) OUTPUT MAY NOT BE UNIQUE OR SPECIFIC TO CUSTOMER, AND OTHER USERS MAY RECEIVE SIMILAR OR IDENTICAL OUTPUT; (D) OUTPUT OR ANY PART THEREOF MAY BE OWNED, CONTROLLED, OR PROTECTED BY THIRD-PARTY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS; AND (E) CUSTOMER MAY NOT HAVE ANY RIGHT OR LICENSE TO USE THE OUTPUT. TO THE GREATEST EXTENT PERMITTED BY LAW, LUMA MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE FOREGOING. LUMA DOES NOT WARRANT THAT OUTPUT WILL BE ACCURATE, RELIABLE, OR ERROR-FREE. CUSTOMER IS SOLELY RESPONSIBLE FOR VERIFYING THE ACCURACY OF OUTPUT AND IS SOLELY LIABLE FOR ANY RELIANCE THEREON.

Communications

Push Notifications

When Customer installs Luma’s Remote Apps, Customer agrees to receive push notifications, which are messages an app sends Customer on Customer’s Supported Device when Customer is not in the Remote App. Customer can turn off notifications by visiting Customer’s Supported Device’s “settings” page.

Email

Luma may send Customer emails concerning our products and services, as well as those of third parties. Customer may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.

Fees; Taxes

Fees and Payments

All fees for the Services are set forth and invoiced as described on the Order Form (“Fees”). All Fees will be paid in US Dollars unless otherwise agreed by the parties. Unless specified otherwise in an Order Form: (a) invoiced payments will be due within thirty (30) days of the invoice date; (b) Fees paid by credit card, debit card, or bank account will be immediately due and payable and processed through Luma’s payment provider (which as of the time of this Agreement is Stripe, Inc. (“Stripe”)); (c) Fees for all prepaid committed Services will be invoiced in full upon execution of the applicable Order Form; and (d) all excess usage will be invoiced monthly in arrears. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by applicable law, whichever is less. All Fees are non-cancellable, and, unless otherwise set forth hereunder, non-refundable. Fees for renewal Subscription Terms are at Luma’s then-current rates, regardless of any discounted pricing in a prior Order Form. If Customer disputes any charges, Customer must notify Luma in writing within sixty (60) days of the date that Customer is billed for such charges, or within such longer period of time as may be required under Laws. Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to Order Forms, whether domestic or foreign, other than Luma’s income tax (“Taxes”). Fees are exclusive of all Taxes.

Authorization

For any amounts paid through Stripe, Customer acknowledges and agrees that Stripe, and not Luma, is responsible for the processing of payment and any information provided to Stripe shall be processed in accordance with Stripe’s terms and privacy policy. Customer will promptly update its Account information with Stripe of any changes (for example, a change in Customer’s billing address or credit card expiration date) that may occur. Customer agrees to pay Luma the amount for Customer’s selected payment plan in accordance with the terms of such plan and this Agreement. If Customer’s payment method is no longer valid at the time a renewal Fee is due, then Luma reserves the right to delete Customer’s Account and any information or Input associated with Customer’s Account without any liability to Customer.

Representations and Warranties; Disclaimer

Representations and Warranties

1. By Each Party. Each party represents and warrants to the other party that: (i) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (ii) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of its obligations under this Agreement.
2. By Luma. Luma warrants that the Services will operate in substantial conformity with the applicable Documentation. If Luma is not able to materially correct any reported non-conformity with this warranty, either party may terminate the applicable Order Form, and Customer, as its sole remedy, will be entitled to receive a refund of any prepaid unused Fees for the applicable Services purchased thereunder. This warranty will not apply if the error or non-conformance was caused by misuse of the Services, modifications to the Services by Customer or any third-party, or third-party hardware, software, or services used in connection with the Services.
3. By Customer. Customer represents and warrants to Luma that: (i) it does and will comply with all Laws in its use of the Services; and (ii) it has provided all notices to and obtained all necessary and sufficient rights, permissions, capacity, consents, and authority to fully comply with its obligations under this Agreement (including, without limitation, to submit, upload, transmit, or use Input in connection with the Services and to grant Luma the rights in Section 2.1(b) (Use of Input by Luma) without violating Laws, infringing, misappropriating, or otherwise diluting any third-party rights (including intellectual property, publicity, privacy, or other proprietary rights), or breaching any terms or conditions in any agreement or privacy policies with a third party.

Disclaimer

THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Luma does not disclaim any warranty or other right that Luma is prohibited from disclaiming under Law. THE SERVICES AND OUTPUT ARE PROVIDED “AS IS.” EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, LUMA, ON ITS OWN BEHALF AND ON BEHALF OF ITS SUPPLIERS AND LICENSORS, MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, LUMA DOES NOT WARRANT THAT THE SERVICES OR OUTPUT WILL BE ACCURATE, RELIABLE, UNINTERRUPTED, SECURE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. LUMA MAKES NO WARRANTY REGARDING THE PRESERVATION OF INPUT OR OUTPUT OR THE SUITABILITY OF OUTPUT AS A REPLACEMENT FOR ANY SAFETY OR COMPLIANCE MEASURE. NO INFORMATION OBTAINED FROM OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. CUSTOMER USES THE SERVICES AT ITS OWN DISCRETION AND RISK. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED TO THE SHORTEST LEGALLY PERMITTED PERIOD. Under no circumstances will Luma be liable for any third-party content or materials made available in connection with the Services or for any loss or damage incurred as a result of the use thereof.

Term and Termination

Term

This Agreement starts on the Effective Date and continues until the earlier of (a) expiration or termination of all Subscription Terms, or (b) termination of this Agreement pursuant to Section 6.2.

Termination

Either party may terminate this Agreement (including any or all Order Forms) if the other party: (a) fails to cure a material breach of this Agreement (including a failure to pay Fees) within 30 days after notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.

Effect of Termination

Upon expiration or termination of an Order Form or this Agreement, Customer’s access to and Luma’s obligations to provide the Services will cease (unless otherwise specified in Order Form). During a Subscription Term and for the 30 day period immediately following the date of expiration or earlier termination of the applicable Subscription Term, Customer may export Input from the applicable Service using the export features described in the applicable Documentation. After that 30 day period, Luma will be under no obligation to store or retain the applicable Input and may delete the applicable Input at any time in its sole discretion. Input and other Confidential Information, as defined in Section 11, may be retained in Recipient’s standard backups notwithstanding any obligation to delete the applicable Confidential Information but will remain subject to this Agreement’s confidentiality restrictions. Luma will, at the written request of Customer following the termination of this Agreement, delete any Customer Content under its control.

Survival

These provisions survive expiration or termination of this Agreement: 1.4 (Restrictions), 2.3 (Usage Data and Aggregated Data), 4 (Fees; Taxes), 5 (Representations and Warranties; Disclaimer), 6.3 (Effect of Termination), 6.4 (Survival), 7 (Ownership of Intellectual Property), 8 (Limitation of Liability), 9 (Indemnification), 10 (Confidentiality), 11 (Intellectual Property Rights Protection), 12 (Miscellaneous), 13 (Definitions), and any other provision that, by its terms, is intended to survive expiration or termination. Except where an exclusive remedy is provided in this Agreement, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.

Ownership of Intellectual Property

Reservation of Rights

Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except as expressly provided in this Agreement, as between the parties, Customer retains all intellectual property rights and other rights in Input and Output. Except for Customer’s use rights in this Agreement, Luma and its licensors retain all intellectual property rights and other rights in the Service and Software (including any improvements, modifications, and enhancements thereto), Documentation, Usage Data, Aggregated Data, and Luma’s technology, materials, interfaces, content, information, or other forms of intellectual property used in connection with the Services, including the know-how and analytical results generated in the providing of the Services and the use thereof, and any and all new products, services, and developments, modifications, customizations, or improvements to the Services made based on the Aggregated Data or Usage Data.

Feedback

Customer may in its sole discretion choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Services (“Feedback”). If Customer provides Feedback, Luma may exploit the Feedback in any manner and for any purpose, including to improve the Services and create other products and services. Luma will have no obligation to provide Customer with attribution for any Feedback Customer provides to Luma.

Limitation of Liability

Excluded Claims

"Excluded Claims" means claims arising from (a) personal injury or death caused by the negligence of a party, its employees or agents; (b) fraud or fraudulent misrepresentation; (c) a party's payment obligations under this Agreement; (d) Luma’s indemnification obligations for an IP Claim; (e) Customer's indemnification obligations for a Customer Content Claim; (f) infringement by a party of the other party's intellectual property rights or (g) any other liability that cannot be excluded or limited by applicable laws.

Liability for Excluded Claims

NOTHING IN THIS AGREEMENT WILL LIMIT EITHER PARTY'S LIABILITY FOR EXCLUDED CLAIMS.

Limits of Liability

SUBJECT TO SECTION 8.2:

1. TO THE FULLEST EXTENT PERMITTED BY LAW NEITHER PARTY WILL HAVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE (INCLUDING THOSE ARISING FROM: (A) THE USE OR INABILITY TO USE THE SERVICES, (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, OR (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF INPUT OR OUTPUT).
2. SUBJECT TO SUB-SECTION (c) BELOW, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THE AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE (THE "GENERAL CAP"). THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
3. LUMA’S AGGREGATE LIABILITY FOR ANY CLAIMS OR DAMAGES ARISING OUT OF AN UNAUTHORIZED DISCLOSURE OF CUSTOMER CONTENT RESULTING FROM LUMA’S BREACH OF (i) ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 10 (CONFIDENTIALITY) OR (ii) WITH RESPECT TO THE PROVISION BY LUMA OF THE SERVICES (IF APPLICABLE), LUMA’S DATA PROTECTION AND SECURITY OBLIGATIONS SET FORTH IN THIS AGREEMENT, EXCEPT TO THE EXTENT SUCH CLAIMS OR DAMAGES ARE CAUSED BY LUMA’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, SHALL BE LIMITED TO TWO (2) TIMES THE TOTAL AMOUNT PAID BY CUSTOMER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE (“SUPERCAP”). FOR THE AVOIDANCE OF DOUBT, LUMA SHALL NOT BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL CAP AND THE SUPERCAP, AND THOSE CAPS SHALL NOT BE CUMULATIVE; THE MAXIMUM TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE SHALL NOT EXCEED THE SUPERCAP.

Beta and Free Services

NOTWITHSTANDING ANYTHING IN THIS SECTION 8 TO THE CONTRARY AND SO FAR AS PERMITTED BY LAW, LUMA’S LIABILITY RELATING TO BETA SERVICES OR ANY SERVICES PROVIDED FREE OF CHARGE, INCLUDING ANY SERVICES PROVIDED DURING A FREE TRIAL PERIOD, WILL BE LIMITED TO THE LESSER OF THE GENERAL CAP OR FIVE THOUSAND US DOLLARS (USD $5,000).

Application of Limitations

THE WAIVERS AND LIMITATIONS IN THIS SECTION 8 APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.

Indemnification

Indemnification by Customer

Customer will defend, indemnify and hold harmless Luma, its employees, officers, directors and successors and assigns (collectively “Luma Parties”) from and against any costs, damages, awards, fees, judgments, losses, expenses and liabilities (including attorneys’ fees and costs) (“Losses”) to the extent arising from third party claims, allegations, actions, demands, proceedings or suits (“Claims”) against Luma arising out of or in connection with: (a) Customer Content or its use with the Services, including without limitation any allegation that the Customer Content infringes or misappropriates the intellectual property rights of a third party; or (b) its or its Users’ or Authorized Users’ use of the Services in violation of any applicable Laws, the rights of a third party, or the Agreement ((a) and (b), together, a “Customer Content Claim”).

Indemnification by Luma

Luma will defend, indemnify and hold harmless Customer its employees, officers, directors and successors and assigns (collectively “Customer Parties”) from and against any Losses arising out of a Claim alleging that the Services (including training data Luma may have used to train a model that powers the Services) infringe any third-party intellectual property right (an “IP Claim”). This defense and indemnity obligation excludes Claims to the extent arising directly or indirectly from infringement caused by: (a) Inputs, (b) Actions taken on your behalf using Third-Party AI Tools, (c) Third-Party AI Tools, (d) combinations of the Services or the Output with technology or content not provided by Luma, (e) modifications made by Customer to the Services or the Output, and (f) use of the Services or Output in a manner that Customer knows or reasonably should know violates or infringes the rights of others, or (g) an alleged violation of trademark based on use of an Output in trade or commerce. If Luma reasonably believes that all or any portion of the Services is likely to become the subject of any infringement claim, Luma may (x) procure, at its expense, the right for Customer to continue using the Services in accordance with this Agreement, (y) replace or modify the allegedly infringing Service so it is non-infringing, or (z), if (x) and (y) are not commercially practicable, Luma may, in our sole discretion, terminate this Agreement upon written notice to Customer and refund any prepaid amounts for unused Services. Customer will promptly comply with all reasonable instructions Luma provides Customer with respect to (x) through (y) above, including any instruction to replace, modify, or cease use of an impacted Service, or to remove any Output for which Luma has received a takedown notice from a third party.

Notice; Cooperation; Settlement

The indemnified party will promptly notify the indemnifying party in writing of any indemnifiable Claim and promptly tender its defense to the indemnifying party. Any delay in such notice will not relieve the indemnifying party from its obligations to the extent it is not prejudiced thereby. The indemnified party will cooperate with the indemnifying party at the indemnifying party’s expense. The indemnifying party may not settle any indemnified Claim in a manner that adversely affects the indemnified party without its consent (which will not be unreasonably withheld or delayed). The indemnified party may participate in its defense with counsel of its own choice at its own expense.

Confidentiality

Definition

“Confidential Information” means information disclosed to the receiving party (“Recipient”) under this Agreement that is marked by the disclosing party (“Discloser”) as proprietary or confidential or, if disclosed orally, is designated as proprietary or confidential at the time of disclosure. Luma’s Confidential Information includes the terms and conditions of any Order Form or this Agreement and any technical, security or performance information about the Services. Customer’s Confidential Information includes the Customer Content.

Obligations

As Recipient, each party will: (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement; and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know, provided it remains responsible for their compliance with this Section 10 and they are bound to confidentiality obligations no less protective than this Section 10. The provisions of this Section 10 will supersede any non-disclosure agreement by and between the parties (whether entered into before, on or after the Effective Date) that would purport to address the confidentiality and security of Customer Content and such agreement will have no further force or effect with respect to Customer Content.

Exclusions

These confidentiality obligations do not apply to information that Recipient can document: (a) is or becomes public knowledge through no fault of the receiving party; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using Confidential Information.

Remedies

Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 10, without the necessity of posting any bond or proving actual damages.

Required Disclosures

Nothing in this Agreement prohibits either party from making disclosures, including of Input and other Confidential Information, if required by Law, subpoena, or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.

Intellectual Property Rights Protection

Respect of Third-Party Rights

Luma respects the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks users of the Service to do the same. Infringing activity will not be tolerated on or through the Service.

DMCA Notification

We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as amended). If you have an intellectual property rights-related complaint about any material on the Service, you may contact our Designated Agent at the following address:

Luma AI, Inc.

Attn: Legal Department (IP Notification)

715 Alma Street, Palo Alto, CA 94301

Email: [ip-infringement]@lumalabs.ai

DMCA Procedures

Notifications of claimed infringement, counter notifications, reposting of removed content, and repeat infringer policies shall be handled in accordance with the procedures set forth in 17 U.S.C. § 512. Luma’s policy is to remove or disable access to material that Luma believes in good faith to be infringing, and to terminate the accounts of repeat infringers. Any person who knowingly materially misrepresents that material is infringing, or was removed by mistake, shall be liable for damages as provided under 17 U.S.C. § 512(f). Luma reserves the right to suspend or terminate accounts of users at its sole discretion.

Miscellaneous

General Provisions

The parties are independent contractors. Neither party shall be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other for any purpose, and neither shall have any right, power, or authority to create any obligation or responsibility on behalf of the other. This Agreement, including the DPA and any other agreements expressly incorporated by reference into this Agreement, are the entire and exclusive understanding and agreement between Customer and Luma regarding Customer’s use of the Services, and supersede all prior agreements and commitments with respect thereto. No modification or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by authorized signatories of the parties. No failure or delay by either party in exercising any right or remedy under this Agreement shall operate or be deemed as a waiver by such party of any such right or remedy; nor shall a waiver by a party of any provision of this Agreement on one occasion be deemed a waiver of any other provision or of such provision on any other occasion. Neither party may assign or transfer this Agreement or its rights under this Agreement, without the other party’s prior written consent; provided that, Luma may assign all of its rights and obligations hereunder in the event of a change of control or sale of all or substantially all of its assets related to this Agreement, whether by merger, reorganization, operation of law, or otherwise. This Agreement will be binding upon and will inure to the benefit of both parties and their permitted successors and assigns. Use of Section headers in this Agreement is for convenience only and will not have any impact on the interpretation of any provision. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) due to events beyond its reasonable control, such as a strike, pandemic, epidemic, health emergency, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster. If any part of this Agreement is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.

Governing Law; Venue

This Agreement is governed by the laws of the State of California and the United States without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. The parties hereby consent to the exclusive jurisdiction and venue in the state and federal courts located in San Mateo County, California for actions arising out of this Agreement.

Additional Terms

Customer’s use of the Services is subject to all additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that Luma may post on or link to from the Services (“Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, this Agreement.

Consent to Electronic Communication

By using the Services, Customer consents to receiving certain electronic communications from Luma as further described in Luma’s privacy policy at lumalabs.ai/legal/privacy (“Luma Privacy Policy”). Please read the Luma Privacy Policy to learn more about Luma electronic communications practices. Customer agree that any notices, agreements, disclosures, or other communications that Luma sends to Customer electronically will satisfy any legal communication requirements, including that those communications be in writing.

Notices

Except as set forth in this Agreement, any notice or consent under this Agreement must be in writing (email being sufficient) (a) if to Luma, at contractnotices@lumalabs.ai; or (b) if to Customer to the address and email address Luma then-has on file for Customer. Notice and consents under this Agreement will be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if by certified or registered U.S. mail (return receipt requested); or (c) one day after dispatch by a commercial overnight delivery service. Either party may update its address with notice to the other party. Luma may also send operational notices to Customer by email or through the Services.

International Use; Export

Customer agrees to comply with all relevant U.S. and foreign export and import Laws in using the Services, Input, and Output. Customer (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (b) agrees not to access or use the Services in violation of any U.S. export embargo, prohibition or restriction, and (c) will not submit to the Services any information controlled under the U.S. International Traffic in Arms Regulations.

Government End Users

Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. All other use is prohibited.

Distribution Channel Notices

(a) Apple. This sub-section applies only to the extent Customer is using the Remote App on an iOS device. This Agreement is between Customer and Luma only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Remote App or its content. Apple has no obligation to furnish maintenance and support services with respect to the Remote App. If the Remote App fails to conform to any applicable warranty, Customer may notify Apple, and Apple will refund any applicable purchase price. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Remote App. Apple is not responsible for addressing any claims relating to the Remote App, including product liability claims, regulatory compliance claims, or claims arising under consumer protection legislation, and is not responsible for the investigation, defense, settlement, and discharge of any third-party intellectual property infringement claim relating to the Remote App. Customer agrees to comply with any applicable third-party terms. Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement. Customer represents and warrants that it is not located in an embargoed country or listed on any U.S. Government prohibited or restricted parties list. (b) Google. This sub-section applies only to the extent Luma makes the Remote App available on, and Customer is using a Remote App downloadable from, the Google Play Store. This Agreement is between Customer and Luma only, and not with Google, Inc. (“Google”). Customer’s use of such Remote App must comply with Google’s then-current Google Play Terms of Service. Google is only a provider of the Google Play Store. Luma, and not Google, is solely responsible for such Remote App. Google has no obligation or liability to Customer with respect to such Remote App or this Agreement. Google is a third-party beneficiary to this Agreement as it relates to such Remote App.

Defined Terms

• “Acceptable Use Policy” means the acceptable use policy governing the Services, the initial version of which is set forth in Section 2.5(b). of this Agreement; Luma may provide updates to the Acceptable Use Policy at any time by providing an updated copy at lumalabs.ai/aup.
• “Affiliate” of a party means an entity that controls, is actually or in effect controlled by, or is under common control with such party.
• “Aggregated Data” means Usage Data that has aggregated with other data such that the resulting data no longer reasonably identifies Customer or a specific individual.
• “Authorized User” means an end user of Customer’s products or services (“Customer Services”) that incorporate or make use of the APIs, where such Customer Services provide significant primary functionality in addition to providing access to the APIs.
• “Customer Content” means, collectively, Input and Output.
• “DPA” means the Data Processing Addendum located at https://lumalabs.ai/learning-hub/legal/enterprise-dpa, which is incorporated by reference into this Agreement solely with respect to use of Services by Customers that are companies or other legal entities to process Customer Personal Data (as defined in the DPA); if you are an individual, the DPA is not incorporated and does not apply.
• “Documentation” means all documentation, materials, or information, technical or otherwise, relating or used with respect to the applicable Services, including specifications, operating manuals, user instructions, and technical literature, in any form, in each case provided or made available to Customer by Luma from time to time.
• “Effective Date” means the date this Agreement is entered into by the parties hereto, whether by signing the Agreement, by signing an Order Form, or via online acceptance.
• “High Risk Activities” means activities where use or failure of the Services could lead to death, personal injury, or environmental damage, including life support systems, emergency services, nuclear facilities, or air traffic control.
• “Input” means any data, information, content or materials (including messages, photos, video or audio, images, folders, data, text, and any other works of authorship or other works) that Customer (including its Users) submits, uploads, provides, makes available, or otherwise transmits (collectively, “Upload”) in connection with the Services.
• “Laws” means all applicable relevant local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications, and export of data, including Personal Data and Input.
• “Order Form” means an order form that is executed by the parties and expressly references this Agreement.
• “Output” means any data, results, output, or other content (including three-dimensional renderings) that is generated or derived from Input (excluding Usage Data or Aggregated Data) and provided to the Customer via the Services, excluding Third-Party Content.
• “Policies” means Luma’s Acceptable Use Policy or other policies regarding usage of the Services as may be made available by Luma from time to time.
• “Process” means to collect, access, use, disclose, transfer, transmit, store, host, or otherwise process.
• “Prohibited Data” means any: (a) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (b) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”); (c) credit, debit, or other payment card data subject to the Payment Card Industry Data Security Standards; (d) other information subject to regulation or protection under specific Laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations); (e) social security numbers, driver’s license numbers, or other government ID numbers; or (f) any data similar to the above protected Laws.
• “Remote App(s)” means Luma’s proprietary Software, mobile application(s) to be installed on Supported Devices as described in the Documentation.
• “Service(s)” means Luma’s proprietary, generative artificial intelligence product(s) or service(s) that are provided or made available to Customer by Luma under this Agreement which allows Customer to create, modify, share, and otherwise use Output. The Services may include Luma’s online cloud platform (“Platform”), application programming interfaces (“APIs”), Remote Apps, or other Software.
• “Software” means any machine learning models, software, scripts, or other code provided or made available by Luma to Customer under this Agreement in object code format.
• “Subscription Term” means the period during which Customer’s subscription to access and use an applicable Service is in effect, as identified in the applicable Order Form.
• “Supported Device” means a hardware device on which a Remote App can be installed on and used as defined in the Documentation.
• “Third-Party AI Tools” means any artificial intelligence or machine learning (“AI”) models, agents, or other AI-powered functionalities provided by a third party and made available by Luma through the Service for users generally.
• “Third-Party Content” means any data, results, output, or other content (including three-dimensional renderings) that is not first generated by the Service and is not Input.
• “Third-Party Technology” means any platform, add-on, service, plug-in, or other third-party product or service that Customer elects to integrate or enable for use with the Services. Third-Party Technology does not include Third-Party AI Tools.
• “Usage Data” means information generated from the use of the Services, such as technical logs, data, and learnings about Customer’s use of the Services, including any Aggregated Data but excluding the contents of any Input or Output. For the purposes of example, Usage Data may include metadata regarding Input and Output like file types, requested operations or instructions to the Services (e.g., “create a video of”), size of files, number of files, language, etc., but will not include the actual content of such Input or Output.
• “User” means any employee or contractor of Customer (or, if permitted, Customer’s Affiliate) that Customer allows to use the Services on Customer’s behalf.