Software License Agreement

By virtue of your download of LumaMap or LumaMap Lite, this License Agreement (this “Agreement”) is entered into and/or deemed executed by and between Georgia Clegg (doing business as “Luma Box”) (“Vendor”), and You  (“Customer”). 

Recitals

Vendor provides a software application known as LumaMap (as well as its free version, LumaMap Lite) (the “Software”), and the parties have agreed that the Vendor will provide the Software to the Customer. Therefore, in consideration of the mutual covenants, terms, and conditions set forth below, the adequacy of which consideration is hereby accepted and acknowledged, the parties agree as set forth below.

Terms and Conditions

1. Definitions

The following capitalized terms shall have the following meanings whenever used in this Agreement.

1. “Commercial Use” means the use of copyright, or any other rights covered under intellectual property laws for financial gain. Instances that may be covered under such use, include but are not limited to: selling the Software or Media as defined under this Agreement; issuing sub-licenses of the Software and Media to third parties; and selling or licensing an adaptation of Media.
2. “Documentation” means the Software’s standard user manual.
3. “Media” shall be taken to include any media generated or the result of any media modified or processed through the Software whether or not through artificial intelligence features.
4. “Software” means LumaMap or LumaMap Lite, in object code format.
5. “Specifications” means Vendor’s standard specifications for the Software set forth in its then-current Documentation.

2. License & Delivery

1. License. Vendor hereby grants Customer a nonexclusive license to download and use only one copy of Software solely for personal purposes provided Customer complies with the restrictions set forth in Section 2.2 below.
2. Restrictions on Software Rights. Copies of the Software created or transferred pursuant to this Agreement are licensed, not sold, and Customer receives no title to or ownership of any copy or of the Software itself. Furthermore, Customer receives no rights to the Software other than those specifically granted in Section 2.1 above. Without limiting the generality of the foregoing, Customer shall not:
   1. Modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Software;
   2. Use the Software for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Software;
   3. Employ the Software for any Commercial Use;
   4. Reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Software’s source code;
   5. Use the software or do any other thing in breach of the pre-existing API Terms of Service or license agreement between the Vendor and Stability AI Ltd for the implementation of a Third-Party API owned by the latter called DreamStudio (https://dreamstudio.ai/api-terms-of-service);
   6. Include sensitive personal information (such as phone numbers, residential addresses, health information, social security numbers, driver’s license numbers, or other account numbers) about the Customer or any other person while using the Software;
   7. Violate the privacy, publicity, or other rights of any third party while using the Software;
   8. Further or promote criminal activity or enterprise or provide instructional information about illegal activities in the course of using the Software;
   9. Generate any content or engage in content sharing that a reasonable person could find obscene, lewd, lascivious, offensive, pornographic, indecent, vulgar, prurient, excessively violent, or to be a glorification or promotion of violence or a celebration of the suffering or humiliation of any person or class of people (whether living or deceased) (including visible genitalia, bare breasts, fully-nude buttocks, depictions of suicide or explicit sexual activity, fetishistic content, bodily fluids, bestiality, or imagery that shows violent death or acts of torture) in the course of using the Software;
   10. Generate content or engage in any content sharing that has any risk or possibility of exploiting, harming, or endangering the health or well-being of children or other minors, such as images of children in sexualized costumes, poses, or a sexual fetishistic context, or which identifies, directly or indirectly, alleged victims of child sexual exploitation, or for the purpose of exploiting, harming or attempting to exploit or harm children in any way in the course of using the Software;
   11. Generate content or engage in any content sharing that may exploit any vulnerabilities, offend human dignity or may otherwise be defamatory, libelous, harassing, threatening, embarrassing, disparaging, distressing, hateful — racially, ethnically, or otherwise — to a person or class of people, or which may be discriminatory towards a person’s or class of people’s race, religion, color, age, ethnicity, national origin, disability, physical, or mental characteristics, sexual orientation, gender expression, gender identity, family status, medical or genetic condition, personality characteristics, or physical appearance, including through the material distortion of the behavior of any such person or class of people in a manner that causes or is likely to cause that person or class of people physical or psychological harm in the course of using the Software;
   12. Use the Software or any content to stalk, harass, abuse, mock, ridicule, intimidate, disparage, defame, threaten, defraud, or otherwise mistreat or harm any person or class of people;
   13. Use the Software to generate content or engage in any content sharing that is intentionally misleading, false, or otherwise inappropriate or with the purpose of harming others, regardless of whether the content or its dissemination is unlawful;
   14. Upload any materials on the Software that: (A) infringe any intellectual property or other proprietary rights of any party; (B) you do not have a right to upload under any law or under any contractual or fiduciary relationship;
   15. Upload any material, program, or software that contains any virus, worm, spyware, Trojan horse or other program or code designed to interrupt, destroy or limit the functionality of the Software, launching a denial of service attack, or in any other way attempting to interfere with the functioning and availability of the Software;
   16. Interfere with or disrupt the Software or servers, or networks connected to the Software;
   17. Access or otherwise obtain any materials or information through any means not intentionally made available or provided for by Vendor or Stability AI Ltd to you through the Software or DreamStudio’s API;
   18. Use the Software (i) for fully automated decision making that adversely impacts an individual’s legal rights or otherwise creates or modifies a binding, enforceable obligation; (ii) to provide medical advice or medical results interpretation; or (iii) generate content or engage in content sharing used for administration of justice, law enforcement, immigration or asylum processes, such as predicting an individual will commit fraud/crime commitment (e.g. by text profiling, drawing causal relationships between assertions made in documents, indiscriminate and arbitrarily-targeted use);
   19. Use the Software in any way that violates any applicable national, federal, state, local or international law or regulation; or
   20. Attempt to do any of the above.
3. Documentation. Customer may reproduce the Documentation as reasonably necessary to support internal use of the Software.
4. Delivery. Upon the payment of License Fees under section 3.1, Vendor shall provide the Software to Customer, through a reasonable system of electronic download. 

3. Fees & Reimbursements

1. Fees. Customer shall pay Vendor as follows: License Fees. For the license granted in Section 2.1 above, a one-time fee determined by the Vendor (“License Fees”) during the course of the Term of this Agreement. 
2. Taxes. Amounts due under this Agreement are payable to Vendor without deduction and are net of any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value added tax withheld at the source. If applicable law requires withholding or deduction of such taxes or duties, Customer shall separately pay Vendor the withheld or deducted amount.
   

    

4. Intellectual Property Rights and Feedback

1. IP Rights in the Software. Vendor retains all right, title, and interest in and to the Documentation and Software, including without limitation, upgrades or updates to the Software as well as any Media as defined under section 1.2 above, but Vendor grants Customer a license to utilize the Media solely for personal purposes. For avoidance of doubt, Customer agrees that the license granted in the preceding sentence explicitly excludes Commercial Use of the Media. Customer recognizes that the Software and its components are protected by copyright and other laws. Vendor shall also possess intellectual property rights, including rights existing under copyright laws, to any Media created by virtue of the Software, and the restrictions under section 2.2 shall equally apply to such Media. Futhermore, Customer agrees that by uploading any media to the Software for the use of DreamStudio’s API by Customer, they hereby grant Stability AI Ltd, a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify, and otherwise use such Media for any Stability-related purpose in any form, medium or technology now known or later developed.
2. Feedback. Customer hereby grants Vendor a perpetual, irrevocable, worldwide license to use any Feedback (as defined below) Customer communicates to Vendor during the Term, without compensation, without any obligation to report on such use, and without any other restriction. Vendor’s rights granted in the previous sentence include, without limitation, the right to exploit Feedback in any and every way, as well as the right to grant sublicenses. Notwithstanding the provisions of Section 5 (Confidential Information) below, Feedback will not be considered Customer’s Confidential Information. (“Feedback” refers to any suggestion or idea for modifying any of Vendor’s products or services, including without limitation all intellectual property rights in any such suggestion or idea.)
   

    

5. Confidential Information 

1. Confidential Information Defined. “Confidential Information” refers to the following one party to this Agreement (“Discloser”) discloses to the other (“Recipient”): (a) any document Discloser marks “Confidential”; (b) any information Discloser orally designates as “Confidential” at the time of disclosure, provided Discloser confirms such designation in writing within  7  business days; (c) the non-public features and functions of the Software, for which Vendor is Discloser; and (d) any other nonpublic, sensitive information Recipient should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient’s possession at the time of disclosure; (ii) is independently developed by Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or (iv) is approved for release in writing by Discloser. Recipient is on notice that the Confidential Information may include Discloser’s valuable trade secrets.
2. Nondisclosure. Recipient shall not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this Agreement (the “Purpose”). Recipient: (a) shall not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Recipient with terms no less restrictive than those of this Section 5; and (b) shall not disclose Confidential Information to any other third party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Recipient shall give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser’s expense.
3. Injunction. Recipient agrees that breach of this Section 5 would cause Discloser irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Discloser will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
4. Termination & Return. With respect to each item of Confidential Information, the obligations of Section 5.2 above (Nondisclosure) will terminate five (5) years after the date of disclosure; provided that such obligations related to Confidential Information constituting Discloser’s trade secrets shall continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Recipient shall return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.
5. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Discloser will retain all right, title, and interest in and to all Confidential Information.

6. Representations & Warranties 

1. From Vendor. Re IP Rights in the Software. Subject to the next sentence, Vendor represents and warrants that it has authority from the owner of intellectual property rights of the Software and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the intellectual property rights to the Software set forth in this Agreement without the further consent of any third party.
2. From Both Parties. Each party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
3. Warranty Disclaimers. Except for the express warranties in Sections 6.1 and 6.2 above, VENDOR MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Vendor does not warrant that the Software will perform without error or that it will run without immaterial interruption. Vendor provides no warranty regarding, and will have no responsibility for, any claim arising out of: (a) a modification of the Software made by anyone other than Vendor, unless Vendor approves such modification in writing; or (b) use of the Software in combination with any operating system not authorized under section 2.2.(d) above, or in the Specifications or Documentation or with hardware or software specifically forbidden by the Specifications or Documentation.
   

    

7. Limitation of Liability

1. Liability Cap. VENDOR’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED the fees paid under Section 3.1 above.
2. Excluded Damages. Except with regard to breaches of Section 5 (Confidential Information), IN NO EVENT WILL VENDOR BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS SECTION 7 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 7, Vendor’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Vendor’s liability limits and other rights set forth in this section 7 apply likewise to Vendor’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
   

    

8. Termination

1. Termination for Cause. The Vendor may terminate this Agreement for the customer’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the Customer first cures such breach, or effective immediately if the breach is not subject to cure.
   

    

9. Miscellaneous

1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
2. Notices. Notices pursuant to this Agreement shall be sent to the physical or electronic addresses provided by the parties, or to such others as either party may provide in writing. Such notices will be deemed received at such addresses upon the earlier of (a) actual receipt or (b) delivery in person, by fax with written confirmation of receipt, or by certified mail return receipt requested. For Vendor: info@lumabox.com. For Customer: the email address provided at the point of payment of the license fees. In addition, Customer is on notice and agrees that: (a) for claims of copyright infringement, Vendor or the complaining party may contact them via the email address provided by them at the point of payment of license fees; and (b) Vendor will terminate the accounts of subscribers who are repeat copyright infringers.
3. Force Majeure. In the event either party is unable to perform their obligations under the terms of this Agreement because of circumstances reasonably beyond their control, , such party shall not be liable for damages to the other for any damages resulting from such failure to perform or otherwise from such causes.
4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Vendor’s express written consent. Except to the extent forbidden in this Section 9.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
7. Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of England and Wales. The Parties consent to the personal and exclusive jurisdiction of the courts of England and Wales. 
8. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
9. Execution in Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.
10. Amendment. We reserve the right, in our sole discretion, to make changes or modifications to these Agreement terms at any time and for any reason. Any changes or modifications will be effective immediately upon posting the updated Agreement on our website, and you waive the right to receive specific notice of each such change or modification. You are encouraged to periodically review these Agreement terms to stay informed of updates.