Platform Services Agreement

(effective FOR Order Forms executed on or after June 1, 2022)

 

This Platform Services Agreement (“Agreement”) by and between LunaPBC, including its subsidiaries and Affiliates (“Company”), a Delaware Public Benefit Corporation, with principal offices located at 10700 Mesa Rim Road, San Diego, CA 92121 and the customer identified on a signed Order Form (“Customer”) (each a “Party” and collectively, the “Parties”) governs the terms of any subscriptions and/or services provided by the Company to Customer.   Unless specified to the contrary in an Order Form, this Agreement will be effective on the date of Customer’s signature on the Order Form (the “Effective Date”).  Certain capitalized terms are defined on Schedule A to this Agreement.

 

  1. Services  Subject to the terms and conditions of this Agreement, Company shall make the Services available to Customer for its internal business use, as specified in one or more Order Forms. Any modification to an Order Form or new Order Form, must be executed by both Parties. In the event of a conflict between any term of this Agreement or an Order Form, the terms of this Agreement shall govern unless the Agreement or Order Form expressly states otherwise in a particular instance.
     
  2. Payment for Services and Expenses  Customer shall pay Company for the Services in accordance with the terms specified in the applicable Order Form. Unless provided otherwise in an Order Form, Customer shall pay the undisputed amounts payable to Company within thirty (30) calendar days of receipt of invoices submitted by Company.
     
  3. Confidentiality 
    1. General Each Party, on behalf of its employees and other representatives, agrees to treat as the confidential and exclusive property of the disclosing Party all Confidential Information that is disclosed by the disclosing Party in connection with this Agreement or the Parties’ business relationship. The receiving Party, on behalf of its employees and other representatives, agrees to use any Confidential Information of the disclosing Party solely for purposes of its performance under this Agreement unless otherwise mutually agreed in writing (subject to the limited exclusions set forth in Section 3.3). The receiving Party, its employees and other representatives shall maintain at least the same degree of diligence in the protection of the Confidential Information of the disclosing Party as it uses with regard to its own Confidential Information.

    2. Non-Disclosure The receiving Party, on behalf of its employees and other representatives, agrees not to disclose any Confidential Information of the disclosing Party to any third party for any purpose without obtaining the prior written consent of the disclosing Party, except (a) to its employees and other representatives who have a need to know in order to perform their obligations under this Agreement, (b) to the extent required by Applicable Law; provided that the receiving Party prior to such disclosure takes all reasonable steps to (i) provide the disclosing Party with prompt written notice of and an opportunity to comment on such required disclosure, (ii) limit the scope of such disclosure, and (iii) secure the confidential treatment of such disclosure by the recipient(s) thereof consistent with the terms of this Agreement, and (c) as otherwise expressly permitted in this Agreement. If there are any non-permitted disclosures of Confidential Information of a Party, such Party shall immediately notify the other Party.

    3. Exclusions Confidential Information does not include information that the receiving Party is able to demonstrate as evidenced by contemporaneous written record (i) was rightfully in its possession prior to receipt from the disclosing Party, (ii) is now, or hereafter becomes, part of the public domain through no act or failure to act on the part of the receiving Party or its employees or other representatives, (iii) becomes known to the receiving Party through disclosure by a third party lawfully having possession of such information and lawfully empowered to disclose such information, or (iv) was independently developed by or on behalf of the receiving Party without the aid, application, use or benefit of the disclosing Party’s Confidential Information.
    4. Return of Confidential Information Each Party agrees that, upon the earlier to occur of (i) the other Party’s written request or (ii) termination or expiration of this Agreement, the receiving Party shall (a) return to the disclosing Party any and all parts of the Confidential Information of such Party provided to the receiving Party in documentary or other tangible form, including all copies and other tangible embodiments thereof, and (b) destroy any or all Confidential Information in the receiving Party’s possession and stored in then-accessible electronic or other media, in accordance with the receiving Party’s own policies and timing for the destruction of its own Confidential Information. The foregoing notwithstanding the receiving Party may retain one archival copy of the disclosing Party’s confidential information, not accessible to operational personnel of the receiving Party and kept only for evidentiary purposes.
    5. Term of Confidentiality Obligations Notwithstanding the expiration or termination of this Agreement, the provisions of this Section 3 shall remain in effect for two (2) years following the expiration or termination of this Agreement.
  4. Technology Ownership  The Company and/or its licensors are the sole owners of all right title and interest in and to the LunaDNA Platform, including but limited to any proprietary software, technology, frameworks, platforms, methodologies, content, user interfaces, designs, names, trademarks, logos materials and images and any modifications or derivatives thereof. If Customer provides any feedback, comments, suggestions, ideas, requests or recommendations for modifications or improvements to the LunaDNA Platform (“Feedback”), Customer hereby assigns and agrees to assign all right, title and interest in any Feedback to the Company to be used for any purposes. Subject to payment in full of all fees to Company as specified in the Order Form, Company grants to Customer a royalty free, non-exclusive, non-transferable, time bounded license to use, for Customer’s internal business purposes only and subject to the terms of this Agreement, the LunaDNA Platform as included in the Services for the duration of the Term. The Company hereby acknowledges that Customer is the owner of all Customer Data, including, without limitation, all intellectual property rights contained therein.

  5. Representations and warranties  The Party making the representations and warranties below makes such representations on behalf of itself, its employees and other representatives and shall be responsible for any non-compliance of such employee or representative.
    1. Compliance with Laws, Covenants and Obligations
      1. In providing the Services, Company represents and warrants that it: 
        1. shall comply with all Applicable Laws, including, but not limited to privacy and data protection laws, including but not limited to the US Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), and Federal Securities Laws. 
        2. has implemented and maintained appropriate security measures to protect Shared Data and Personal Data, and Company shall notify Customer of any breach in accordance with the Company’s Data Breach Policy, a copy of which is available upon request.  

    2.   As a condition to the Company granting Customer access the LunaDNA Platform and performance of the Services, Customer hereby represents and warrants that it: 
      1. shall comply with all Applicable Laws, including, but not limited to privacy and data protection laws and will only utilize the LunaDNA Platform to perform research relevant to improving health and well-being.
      2. has implemented and maintains appropriate security measures to protect Shared Data, and any Personal Data, if applicable, and Company Confidential Information and has trained any employees and other representatives on such obligations and how to comply strictly with them.  Customer agrees to notify Company of any breach or threatened breach in such security measures in accordance with the Company’s Data Breach Policy.
      3. shall provide the Company with confirmation of Customer’s Institutional Review Board (IRB), or equivalent governing body, exemption or approval prior to using the Services by completing the required information in the Study Designer™ on the LunaDNA Platform and will use the Services strictly in accordance with the IRB’s (or equivalent) decision and requirements. 
  6. Customer Obligations 
    1. Customer agrees to comply with all Company covenants to its community contained in publicly available documents such as the Consent Agreement and Privacy Policy. Current versions of all such documents are available on the LunaDNA Help Center.

    2. Customer is responsible for administering and monitoring the use of login ID’s and activity that happens on or through its LunaDNA Platform account. Upon termination of employment of any Customer user, Customer will terminate that individual’s login ID and password.   Customer will notify the Company of any unauthorized use of its account.  Customer will also adhere to any requirements from the Company with respect to additional options to secure customer account including two-factor authentication.  

    3. 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 its authorized users in furtherance of its internal business purposes as expressly permitted by this Agreement; (ii) modify, adapt, or hack the LunaDNA Platform or otherwise attempt to gain or gain unauthorized access to the LunaDNA Platform or related systems or networks; (iii) post or transmit any file which contains viruses, worms, Trojan horses or any other contaminating or destructive features, or that otherwise interfere with the proper working of the LunaDNA Platform or the Services; (iv) solicit login information, Login IDs or personal information of another person, or access an account, belonging to someone else without legal authorization to do so; (v) use the Service for the purpose of gathering information to file a legal claim against a third-party; (vi) attempt to breach any security or authentication measures of the LunaDNA Platform or the Services; (vii) void, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Company or any other third party to protect the Services or the LunaDNA Platform; (viii) interfere or attempt to interfere with other customers’ or any Members’ use of the Luna DNA Platform or Services; (ix) defame, abuse, stalk, threaten, intimidate, harass or otherwise violate the legal rights of any other customer or Member or employee, staff or agent of Company; (x) do anything that could disable, damage, tamper with, impair or otherwise cause interruptions to the proper working of the Service; (xi) use any robot, spider, scraper or other automated means to access, data-mine, data-crawl, scrap or index the LunaDNA Platform in any manner; (xii) provide any false personal information in its accounts; (xiii) do anything that is illegal, infringing, fraudulent, malicious or could expose Company or Members to harm or liability; (xiv) 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 LunaDNA Platform or Service(s); and (xv) try to use, or use, the Service(s) in violation of this Agreement.

    4. Customer shall not (i) attempt to re-identify members, (ii) perform research outside the scope of the study protocol approved or exempted by an IRB or similar regulatory body, or (iii) try to capture or view any Personal Data or Shared Data without the consent of the Member(s).
       
  7. Member Data Responsibilities and obligations 
    1. Company is a data controller (as defined in the General Data Protection Regulation “GDPR” https://gdpr-info.eu/art-4-gdpr/) in its own right in relation to all personal data (as defined in the GDPR) and the LunaDNA Platform has been designed to comply with GDPR.  Absent express Member consent, the Company shall only provide Customer with access to aggregate Shared Data from the LunaDNA Platform.  Customer acknowledges that such access does not directly identify the data subjects and does not disclose any Member names, direct contact details, full dates of birth, identification numbers, pseudonyms or any other directly identifying Personal Data.  

    2. In the event Customer Data contains any personal data (as defined in the GDPR), Customer hereby agrees to process such personal data as a data controller in its own right (to the extent applicable under the GDPR) and to comply strictly with all applicable data protection laws, including but not limited to the GDPR. For the avoidance of doubt, restrictions and regulations in Section 6.1 are not superseded by the statements in this Section.
       
  8. Term and Termination 
    1. Term  The term of this Agreement (the “Term”) commences as of the Effective Date and shall continue for a period of five (5) years from the Effective Date unless earlier terminated as provided in this Section 8.   If an Order Form entered into during the Term is in effect as of the Agreement expiration or termination date, then the Term shall be extended until the expiration of such Order Form; provided that, during such extension period, no additional Order Forms to this Agreement shall be entered into by the Parties. Each Order Form shall specify the term of such Order Form.
    2. Termination for Convenience Notwithstanding anything to the contrary herein, either Party shall have the right to terminate this Agreement and/or any Order Form with or without cause, effective upon thirty (30) calendar days written notice to the other Party.
    3. Termination by Company Company may, in its sole discretion, terminate this Agreement with immediate effect upon written notice to Customer in the event of a breach or threatened breach of Section 5.1.2 or 6.1 hereof by Customer or by any of its employees or other representatives.
    4. Termination for Breach Either Party (the “Terminating Party”) may terminate this Agreement or any Order Form in the event of a material breach of this Agreement or any Order Form by the other Party (the “Breaching Party”) if the Breaching Party does not cure such breach to the reasonable satisfaction of the Terminating Party within fifteen (15) calendar days of the Breaching Party’s receipt of written notice of the breach or due to the nature of the breach if such breach may not reasonably be cured within such fifteen (15) calendar day period, within such other period as may be reasonably necessary. Termination shall occur with immediate effect upon the Terminating Party’s further written notice if the breach is not cured.
    5. Suspension of Service In addition to the termination rights set forth above, the Company may suspend Customer’s access to the LunaDNA Platform, including, without limitation, Customer’s account, on the following grounds: (i) late payment/non-payment of fees; (ii) non-renewal of the Subscription Term (as defined in the Order Form) by Customer; or (iii) breach of the Agreement or any Order Form. Company shall notify Customer of any such suspension. Customer must remedy such violations prior to Company restoring full access to and allowing Customer to use the LunaDNA Platform. Such suspension will in no way affect Customer’s on-going obligations under the Agreement. Customer hereby expressly acknowledges and agrees that Company shall not be responsible for any consequences resulting directly or indirectly from any of such suspension or termination of Services.
    6. Effect of Termination In the case of a termination of this Agreement, effective upon the date specified in the applicable termination notice (“Termination Date”), Company shall discontinue performing all Services and shall not incur any further expenses or enter into any new obligations in connection with this Agreement or any Order Form. The Company will only maintain Customer’s Service Insights for thirty (30) calendar days from the end of the Subscription Term or from the date of suspension of Customers account or Termination Date, as the case may be. Customer must export Service Insights prior to the end of such period or Service Insights will be permanently lost. Customer will pay, within thirty (30) days after the Termination Date, all amounts owing to Customer for Services rendered by Company prior to the Termination Date and related expenses, if any.
    7. Survival. Sections 3, 4, 8.7, 9, 10, 12, 14, 15, 16, 17, 18 and 19 and all other provisions of this Agreement which, by their nature are continuing, shall survive the expiration or termination of this Agreement.
       
  9. Disclaimer of Warranties. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT: (1) ITS USE OF THE SERVICES ARE AT IT’S SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (2) COMPANY MAKES NO WARRANTY THAT (a) THE SERVICES WILL MEET CUSTOMER REQUIREMENTS; (b) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, UNFAILINGLY SECURE, OR ERROR-FREE; (c) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE SERVICES WILL MEET ITS EXPECTATIONS AND (d) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED; (3) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT CUSTOMER’S OWN DISCRETION AND RISK AND THAT IT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO IT’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL; AND (4) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM COMPANY OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
     
  10. Limitations of Liability. EXCEPT FOR LIABILITY ARISING FROM THE COMPANY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IT WILL NOT BE LIABLE TO CUSTOMER FOR ANY DAMAGES WHATSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT THAT IN THE AGGREGATE EXCEED THE GREATER OF (a) $10,000, OR (b) THE TOTAL AMOUNT OF FEES CUSTOMER HAS PAID TO COMPANY IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENTS GIVING RISE TO CUSTOMER’S CLAIM. IN ADDITION, IN NO EVENT WILL COMPANY BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST OR DAMAGED DATA, OR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, WHETHER BASED ON BREACH OF CONTRACT OR WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF COMPANY IS INFORMED OR OTHERWISE HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE FORESEEABLE.

  11. Expiration of Free Trial. Upon the expiration of Customer’s free trial, if applicable, Company may immediately suspend Customer’s access to the LunaDNA Platform, 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. Company shall have no obligation to maintain, store or otherwise retain Service Insights beyond the end of the free trial period.
     
  12. Taxes.  Customer shall pay applicable taxes, if any, in connection with payments under this Agreement, including, but not limited to, sales, use, excise, value-added, goods and services, consumption and other similar taxes or duties. Each party shall be responsible for its own business and franchise taxes, net income taxes, employment taxes for its own representatives, and for taxes on any property it owns or leases. The Parties shall cooperate to reduce the taxes, current and future, levied on the Services to the extent legally permissible. Each Party shall provide to the other Party any resale exemption, multiple points of use certificates, treaty certification and other exemption information reasonably requested by the other Party.
     
  13. Force Majeure, Excused Performance. Company is not liable for any delay or failure to perform any of its obligations required under this Agreement by reasons of complete unavailability of necessary materials or access to the LunaDNA Platform, failure of power, government or judicial orders or decrees that prevent Company’s performance, riots, insurrection, war, terrorism, acts of God, epidemic or pandemic, inclement weather or any similar reason or cause beyond the Company’s reasonable control; provided that Company notifies Customer of the force majeure event promptly (including a reasonable estimate of time required for performance to the extent determinable) and such Company uses reasonable commercial efforts to perform as soon as reasonably practicable. If any force majeure condition prevents Company’s performance for longer than thirty (30) calendar days, Customer then has the right to terminate this Agreement upon written notice to Company subject to Customer paying Company all amounts due to Company, in accordance with the applicable Order Form, for all Services rendered prior to the date of such termination. Notwithstanding the foregoing, Customer has no obligation to pay for unfinished Services unless otherwise agreed in a given Order Form.
     
  14. Assignment.  Neither Party may assign this Agreement to a third party without the prior written consent of the other Party, such consent not to be unreasonably withheld; provided that either Party may, without such consent assign this Agreement to a third party in connection with a merger, acquisition, consolidation, or re-organization involving such Party and a third party, or in connection with the sale to a third party of the business assets of the Party. Any assignment in derogation of the foregoing shall be void. Subject to the foregoing, this Agreement shall inure to the benefit of each Party’s successors or permitted assigns.
     
  15. Notices. Notices under this Agreement shall be in writing and shall be deemed to have been given (a) five (5) business days after mailing if sent by registered or certified US mail or (b) when delivered if delivered personally or sent by express courier services. All notices shall be sent to the other party at the address set forth on the cover page of the Order Form.
     
  16. Governing Law.  This Agreement shall be governed by and enforced in accordance with the laws of the Delaware, without reference to principles of conflicts of laws and the Parties hereby submit to the exclusive jurisdiction of the courts having jurisdiction in the defending Party’s principal place of business.
     
  17. Injunctive Relief.  The Parties acknowledge that its breach of certain provisions of this Agreement may cause irreparable damage to the other Party for which monetary damages would not be an adequate remedy and agrees that such Party will be entitled to seek injunctive relief under this Agreement, as well as such further relief as may be granted by a court of competent jurisdiction. The rights and remedies provided to each Party in this Agreement are cumulative and in addition to any other rights and remedies available to such party at law or in equity.
     
  18. Severability.  If a court of competent jurisdiction holds that any term of this Agreement or any Order Form is unenforceable, illegal or void, such term shall be enforced only to the extent that it is otherwise enforceable or is not in violation of such law, and all other terms of this Agreement or such Order Form shall remain in full force and effect.

  19. Complete Agreement.  This Agreement, any Order Form(s) and the documents referenced in Section 6.1 and incorporated herein set forth the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior agreements, arrangements and communications, whether oral or written, with respect to the subject matter hereof.  This Agreement may be amended solely in writing signed by both parties

SCHEDULE A


DEFINITIONS 

 

  1. “Affiliate” means an entity which controls, is controlled, or is under common control with Company or any other entity controlled by Company, 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) or (ii) the right or power, directly or indirectly, to elect a majority of the Board of Directors, or (iii) the right or power to control management.
     
  2. Applicable Laws” means any applicable international, federal, state, and local laws, statutes, rules, regulations, ordinances, orders, decrees and codes and industry professional standards that relate to the Services or that regulates a party’s business.
     
  3. “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.
     
  4. “Customer Data.” Any private or proprietary information owned or licensed by Customer, which Customer imports into their private, secure compute environment on the LunaDNA Platform, also known as a "sandbox" or “workbench”. Customer Data shall not include any Shared Data or Personal Data.
     
  5. “LunaDNA Platform” means the LunaDNA platform software that hosts Shared Data and Personal Data.
     
  6. “Member” means a user on the LunaDNA Platform who accepts the LunaDNA consent with the intention or action of sharing data on the platform.
     
  7. “Order Form” means one or more Luna Order Forms specifying the Services to be provided to Customer by the Company.
     
  8. “Personal Data” means any personal information (e.g., name, contact information, payment information). Personal Data does not include any Shared Data.
     
  9. “Schedule” means a schedule attached to or otherwise forming part of this Agreement.
     
  10. “Services” means all services to be performed by the Company as specified in any Order Form, which may include: (i) subscription to the Company’s internet-accessible service which provides use of the LunaDNA Platform and/or (ii) other professional services, such as implementation services or program management.
     
  11. “Service Insights” means any analysis outputs, workbooks, sheets, visualizations, etc. generated in the Customer’s private compute environment.
     
  12. “Shared Data” means genomic data (data about an individual’s genes or DNA) and medical or health data (eg, medications, allergies, surveys, health records, information collected by integrated apps and devices).