Terms of Use Addendum – Discovery Tools for Non-Profit Customers


Effective Date: November 20, 2020


Please read carefully this Terms of Service Addendum, our Terms of Service and our Privacy Policy (together, these “Terms”) as they form a contract between you, the Customer, and LunaPBC, Inc., including its subsidiaries and Affiliates (hereafter, collectively “LunaPBC”). Customer and LunaPBC being herein collectively identified as “the Parties” and individually “a Party”.  The Terms of Service Addendum contains terms that are specific to one or more Service(s).

 

If the Customer is entering into these Terms on behalf of a Not-for-Profit Entity (as defined in Section 8.9 hereof), Customer agrees to these Terms for such Entity, and represents to LunaPBC that Customer has the authority to bind such Entity and its Affiliates to these Terms, in which case the terms, “Customer” or related capitalized terms used herein shall refer to such Entity and its Affiliates. If Customer does not have such authority, or if Customer does not agree with these Terms, Customer must not utilize LunaPBC Service(s). If the Customer desires to utilize LunaPBC’s Service(s) and is not doing so on behalf of a Not-for-Profit Entity, the Customer must contact LunaPBC’s representatives directly to discuss Terms of Use applicable for such other organization.  Customer representative, as an individual, must be 18 years or older.

 

  1. Services Covered by this Addendum
    1. Discovery Tool. Refer to the Terms of Use for definition.
    2. Recontact Tool. Refer to the Terms of Use for definition.
    3. Survey Builder. Services that enable (1) the custom creation of new surveys and/or instruments, (2) access to a library of validated and public surveys and instruments, and (3) the ability to publish surveys to a Member, or Members, for the collection of Shared Data.
       
  2. Responsibilities of LunaPBC
    LunaPBC will (a) make the Service(s) available to Customer pursuant to the applicable Service Plan (selected by the Customer via the online registration through the Admin Console), (b) use commercially reasonable efforts to make the Service(s) available in accordance with its then available service levels, and (c) provide the Service(s) in accordance with laws and government regulations applicable to locations where LunaPBC hosts the Service(s). Subject to Customer’s compliance with the Terms and solely during the Subscription Term (and any renewals thereof in accordance with Section 7.1 of the Terms), LunaPBC grants to Customer a limited, non-exclusive, non-transferrable, and revocable right to access and use the Service(s) for its internal business purposes.
     
  3. Responsibilities of Customer
    1. When Customer subscribes to and uses the Service(s), Customer automatically agrees: 
      1. to provide to LunaPBC, prior to utilizing such Service(s), with confirmation of Customer’s Institutional Review Board (IRB), or equivalent governing body, exemption or approval; by emailing, or transferring through other agreed upon means, the IRB determination letter (or equivalent from other governing bodies) to LunaPBC at adminsupport@lunadna.com.
      2. to use the Service(s) strictly in accordance with the IRB’s (or equivalent) decision and requirements described in the document provided in accordance with 3.1.1.

      3. not to try to re-identify LunaDNA members. Refer to Terms of Use document for more information.

      4. that the use of the Service(s) is subject to the payment of additional fees and charges described below in Section 6.

    2. General Restrictions. Customer shall not (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service(s) available to any third party, other than Users in furtherance of its internal business purposes as expressly permitted by the Terms; (ii) modify, adapt, or hack the Service(s) or otherwise attempt to gain or gain unauthorized access to the Service(s) or related systems or networks; (iii) attempt to decipher, decompile, reverse engineer, disassemble, reproduce, or copy or otherwise access or discover the source code or underlying program of any software making up the Service(s); and (iv) try to use, or use, the Service(s) in violation of the Terms. Without limiting the foregoing, Customer is solely responsible for ensuring that Customer’s use of the Service(s) is compliant with all applicable laws and regulations.

  4. Access to the Service(s)
    1. Users: Access and use of the Service(s) is restricted to the specified number of individual Users (i) permitted under the applicable Service Plan and/or (ii) registered for use via the online registration through the Admin Console. Customers may only purchase Service Plan user licenses for individuals who are Customer’s direct employees, volunteers under contract with Customer, or Customer’s contractors. Customer may NOT purchase Service Plan user licenses for individuals who are not Customer’s employees, volunteers under contract with Customer, or Customer’s contractors. Customer is responsible for reviewing the individual Service Plan access and use restrictions prior to utilizing each Service Plan, and for ensuring Users strictly adhere to such restrictions as well as to these Terms.

  5. Changes to the Service(s)
     
    LunaPBC may update Service(s) from time to time and Customer may receive notifications of such upgrades, modifications, new features, or updates (collectively, “Updates”). Any Updates to the Service(s), are also subject to the Terms and LunaPBC reserves the right to deploy Updates at any time. Customer agrees that its purchase of the Service(s) is neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by LunaPBC with respect to future functionality or features.

  6. Billing, Plan Modification, and Payment
    1. Charges: All charges associated with Customer’s Account (“Subscription Charges”) are set forth in the applicable Service Plan and due in full and payable in advance. Payment obligations are non-cancelable, and except as expressly permitted in the Terms, fees paid are non-refundable.

    2. Payment Methods: Customer shall pay the Subscription Charges through an accepted payment as specified in applicable Service Plan and/or in the Admin Console.

    3. Renewal: Customer’s subscription to the Service(s) will renew automatically for a Subscription Term in accordance with the renewal terms and conditions set forth in Section 7.1.

    4. Late Payments/Non-payment of Subscription Charges: If the Subscription Charges are more than twenty-four (24) hours overdue, then, following a notification of suspension, LunaPBC may suspend Customer’s access to the Service(s), including, without limitation, Customer’s Account, until such unpaid Subscription Charges are paid in full. Customer further acknowledges that LunaPBC is not required to serve notices for late payments of Subscription Charges.

    5. Upgrades: Subject to the Terms, Customer may upgrade Customer’s Account at any time during the Subscription Term (or any renewals thereof in accordance with Section 7.1) by selecting a new Service Plan in the Admin Console; provided, however, that Customer acknowledges that the number of Users may not be decreased. When Customer upgrades its Account, the new Subscription Charges will become immediately applicable and the new Subscription Charges for the subsisting month will be charged on a pro-rated basis.

    6. Applicable Taxes: Except as set forth in the applicable Service Plan, the Subscription Charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). Customer agrees to pay applicable direct or indirect Taxes associated with its purchases hereunder. If Customer has an obligation to withhold any amounts under any law or tax regime (other than U.S. income tax law), Customer shall gross up the payments so that LunaPBC receives the amount actually quoted and invoiced. If LunaPBC has the legal obligation to pay or collect Taxes for which Customer is responsible for this section, the appropriate amount shall be invoiced and paid by the Customer, unless the Customer provides LunaPBC with a valid tax exemption certificate authorized by the appropriate taxing authority.

  7. Term, Termination, and Suspension
    1. Subscription Term: These Subscription Terms shall be deemed effective for Customer the date of sign-up and shall continue through the Subscription Term. Service Plans commence on the date of sign up and continue for the Subscription Term specified therein. Unless a Party gives written notice, by emailing adminsupport@lunadna.com, of non-renewal at least seven (7) business days prior to the expiration of the relevant Subscription Term, Service Plans will automatically renew for a period equal to the previous Subscription Term and such renewal plan shall be at the then current subscription rates. Provider reserves the right to increase the Subscription Charges on an annual basis at the beginning of each Subscription Term.

    2. Suspension: LunaPBC may suspend Customer’s access to the Service(s), including, without limitation, Customer’s Account, on the following grounds: (i) late payment/non-payment of Subscription Charges; (ii) non-renewal of the Service(s) by Customer; or (iii) breach of the Terms. LunaPBC shall notify Customer of any such suspension. Customer must remedy such violations prior to LunaPBC restoring full access to and allowing Customer the use of the Service(s). Such suspension will in no way affect Customer’s on-going obligations under the Terms. Customer hereby expressly acknowledges and agrees that LunaPBC shall not under any legal theory and to any extent be held responsible for any consequences resulting directly or indirectly from any of such suspension.

    3. Termination: LunaPBC reserves the right to terminate these Terms and any Service(s) hereunder in addition to suspension, if; (i) a breach by Customer remains uncured for more than ten (10) business days from the breach; or (ii) LunaPBC determines in its sole discretion that Customer’s breach of the Terms cannot be cured. Upon such termination, Customer must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term. Either Party may terminate these Terms by written notice to the other Party in the event that (i) such other Party materially breaches the Terms and does not cure such breach within thirty (30) calendar days of such notice, or (ii) immediately in the event the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Customer hereby expressly acknowledges and agrees that LunaPBC shall not to any extent under any legal theory be held responsible for any consequences resulting directly or indirectly from any termination of these Terms.

    4. Free Trial Customers: Upon the expiration of Customer’s free trial, LunaPBC may immediately suspend Customer’s access to the Service(s), including, without limitation, Customer’s Account. Customer must export Service Insights before the end of the free trial or Service Insights will be permanently lost. LunaDNA shall have no obligation to maintain, store or otherwise retain Service Insights beyond the end of the free trial period.

    5. Service Insight Storage: If the Customer renews its Subscription Plan and/or resolves the cause of the suspension or termination within the thirty (30) calendar day cure period, Customer may continue to access, or resume as applicable access to, its Service Insights from its account. If the thirty (30) calendar day cure period has expired without Customer resolving to LunaPBC’s satisfaction the cause that led to such suspension or termination, then the Customer’s Service Insights will be deleted and non-recoverable.
      In accordance with specific Service Plans, and only for those Service Plans where this is specified therein, LunaPBC will maintain Customer’s Service Insights but only for thirty (30) calendar days from the end of the Subscription Term or from the date of suspension or termination of Customer’s account.

    6. Use of Third Parties for Payment Processing: LunaPBC may use a third-party service provider to manage payment processing of Customer Subscription Charges.  In such connection, such service provider will store, retain and use Customer’s payment account information only to process Customer’s payment information for LunaPBC. Customer must notify LunaPBC of any change in Customer’s payment account information, either by updating Customer’s Account or by e-mailing LunaPBC at adminsupport@lunadna.com.

  8. Addendum Definitions
     
    When used in this Addendum with the initial letters capitalized, in addition to terms defined elsewhere in the Terms, the following terms have the following meanings:
    1. A Party’s Pre-Existing Property: means all documents, records, drawings products, reports, newsletters, materials, research, and other tangible property of such Party existing as of the Effective Date or independently developed by such Party outside of the scope of this Terms of Service Addendum and, in the case of Customer in addition to the foregoing, developed by Customer without reliance on any information gathered from Customer’s access to the LunaDNA Database.

    2. Admin Console: means the portion of the lunadna.com website through which Customer accesses its account and Service(s).

    3. Affiliate: means an entity that controls, is controlled, or is under common control with a Party or any other entity controlled by a Party, where “control” means (i) the indirect or direct or beneficial ownership of a voting interest of at least fifty percent (50%) (or in a foreign jurisdiction where majority ownership is prohibited by law, the maximum ownership percentage permitted by law) in such entity or (ii) the right or power, directly or indirectly, to elect a majority of the Board of Directors of such entity, or (iii) the right or power to control management of such entity.

    4. Applicable Laws: means any applicable international, federal, state, and local laws, statutes, rules, regulations, ordinances, orders, decrees and codes, and industry professional standards in each and every case that relate to or are applicable to the Services or that otherwise regulate a Party’s business.

    5. Client Confidential Information: means (i) all Confidential Information that is disclosed to LunaPBC by or on behalf of Customerl in connection with or by reason of the Services, including, but not limited to, Customer Pre-Existing Property, (ii) any Confidential Information relating to Customer or its business that is incorporated in the results of the Services and (iii) unless expressly provided otherwise with respect to particular Services, the results of the Services. Notwithstanding the foregoing, Customer hereby expressly acknowledges and agrees that any portion of the results of the Services that includes any and all LunaPBC Pre-Existing Property is not for any reason and under any legal theory to be considered Customer Confidential Information.

    6. Commercial or for-profit company or corporation is an entity that aims to earn profit through its operations and is concerned with its own interests, unlike those of the Not-for-Profit Entity.

    7. Confidential Information: means all information that is confidential or proprietary to the disclosing Party (whether or not reduced to writing or other tangible medium of expression, and whether or not patented, patentable, capable of trade secret protection or protected as an unpublished or published work under the United States Copyright Act of 1976, as amended), including without limitation, (a) information relating to the intellectual property and business practices of the disclosing Party; and (b) any third party confidential or proprietary information in the possession of the disclosing Party that is provided to the receiving party.

    8. Effective Date: The date and time when Customer first uses and Services under this Terms of Service Addendum.

    9. LunaDNA Database: means LunaDNA’s user database, that is implemented on its platform at the time Customer enters into an initial Service Plan or at any renewal thereof, and that is managed by LunaPBC.

    10. Member: A user on the LunaDNA platform who accepts the LunaDNA Consent with the intention or action of sharing data (Shared Data) on the platform. It is possible for a user to be both a Customer and Member.

    11. Not-for-Profit Entity: also known as a nonprofit organization (NPO), is an organization or another legal entity (non-business or nonprofit institution) traditionally dedicated to furthering a particular social cause or to advocating a shared point of view. In economic terms, it is an organization using the surplus of its revenues to further its objective, rather than distributing its income to the organization's shareholders, leaders, or members. Being public extensions of a nation's revenue department, nonprofits are tax-exempt or charitable, meaning they do not pay income tax on the money that they receive for their organization. They can operate in religious, scientific, research, or educational settings.

    12. Service Insights: means any analysis outputs, workbooks, sheets, visualizations, etc. generated in the Customer’s private compute environment.

    13. Service Plan: means the pricing plan(s) and the functionality and Services associated therewith for which Customer subscribes with respect to any User.

    14. Services: mean and include any of the services defined herein or in other parts of the Terms and/or any new services LunaPBC may introduce as Service(s) to which the Customer may subscribe to and any Updates to such Service(s).

    15. Subscription Term: means the period during which Customer has agreed to subscribe to the Service(s) with respect to any individual User.

    16. User: means an individual who is authorized by Customer to use the Service(s) on Customer’s behalf including an Account administrator, employees, consultants, and contractors.

    17. System: means the LunaDNA platform software and database that hosts the LunaDNA community.