Master Services Agreement

Last Updated: October 01, 2024

This Master Services Agreement (this “Agreement”) governs the access and use of one or more services (as defined in Section 1 below) purchased from Lucebra LLC, a Delaware corporation, and/or its Affiliates (collectively “Lucebra”). By accepting this agreement or by using the services, the customer acknowledges that it has read, understands, and has the authority to enter into this agreement.

1. Definitions

As used in this Agreement, the following terms have the meaning set forth below:

• Affiliate: Any entity that directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement
• Customer: The party entering into this Agreement and/or an Order Form with Lucebra
• Fees: The amounts payable by Customer to Lucebra for access to the Services
• Order Form: The ordering document mutually executed by Lucebra and Customer specifying: (i) the Service(s) purchased, (ii) the number of licenses purchased, (iii) Fees payable by Customer to Lucebra for provision of the Services, (iv) the subscription period of the Services to be provided by Lucebra to Customer, (v) billing and payment information, and (vi) any other applicable quantity specifications regarding Customer's purchase of the Services
• Personal Data: Any data that Customer submits into the Services relating to an identified or identifiable natural person protected under data protection laws
• Services: A platform that allows Customer to access online courses (“Courses”) and any related services offered by Lucebra that may be purchased by Customer, as set forth in the Order Form signed between parties
• Subscription Period: The term agreed between the Parties as detailed in the Order Form
• Lucebra: Lucebra LLC, or one of its Affiliates
• Users: The employees and contractors that the Customer authorizes to access and use the Services

2. Provision of the Services

Lucebra agrees to make the Services available to Customer and its Users pursuant to the terms of this Agreement and as specified in an Order Form. Where an Affiliate of Customer wishes to access or use the Services, such Affiliate must request Affiliate status and enter into its own separate Order Form governed by this Agreement. For purposes of that Order Form, the Affiliate shall be deemed the “Customer” responsible for its performance and all obligations to Lucebra; however, the original Customer shall remain responsible for the acts and omissions of any of its Affiliates. For certain Services, additional Service-specific terms may apply, which can be found at https://www.Lucebra.com/terms/ub/ and/or will be attached to the Customer's Order Form.

3. Terms of Use

Customer shall not, nor shall it permit its Users to:

• Use the Services in any manner that is unlawful or that infringes the rights of others
• Copy, distribute, resell, create derivative works from, hack, modify, or interfere with the Services, any of the Courses, or any third-party system made available through the Services
• Input any infringing, racist, hateful, sexist, pornographic, harassing, defamatory, libelous, or other similar inappropriate content into the Services or instruct Lucebra to include any such content in the Services
• Scrape, spider, or utilize other automated means of any kind to access the Services, including but not limited to accessing API endpoints for which Customer or its Users have not been provided authorization by Lucebra
• Use the Services to build a competitive product
• Share login access to the Services among multiple individuals, transfer a User license (except in connection with a termination of employment), or otherwise permit any person other than the Users to use the Services
• Use Lucebra's APIs in violation of the API License Agreement found at https://www.Lucebra.com/terms/api/ nor instruct a third party to access Lucebra's APIs
• Use the Services for any purpose other than as a platform for supplementing learning and training of Users
• Permit any individual legally incapable of consenting to the use of online services or the collection and processing of their personal data to use the Services (e.g., individuals under 13 years old in the U.S.)

Customer represents and warrants that neither it nor its Users are (i) located in or residents of any country subject to applicable U.S. trade sanctions or embargoes or (ii) named on any U.S. government specially designated national or denied-party list. Customer shall not permit any User to access or use the Services in a U.S. embargoed country or in violation of any U.S. export law or regulation.

4. Violations of Restrictions

If Lucebra determines that Customer or any of its Users has violated the restrictions set forth in Section 3 above (collectively the “Terms of Use”), and if such violation is remediable, Lucebra shall notify Customer of such violation. If Customer fails to cure such violation within ten (10) days, Lucebra may terminate or suspend access to the Services for Customer or the relevant Users. Separately, Lucebra may remove or edit inappropriate content or activity identified by or reported to Lucebra.

5. Fees

The Customer will pay the Fees as set forth in one or more Order Forms. Unless stated otherwise in an Order Form, all fees are payable in U.S. dollars. Any future incremental add-on or renewal orders after the initial subscription period (as set forth in an Order Form) shall be subject to the subscription standard price in effect at the time of purchase. In the event that Customer is late in making payments, Lucebra reserves the right to charge the greater of 1.5% interest per month or the maximum interest permitted by law, and Customer will be liable for all third-party collection costs.

6. Taxes

The Fees are stated as exclusive of all federal, state, local, and foreign taxes, levies, and assessments of any nature, including value-added, use, or withholding taxes. Customer agrees to bear and be responsible for the payment of all such taxes, levies, and assessments imposed on Customer arising out of this Agreement, excluding any tax based on Lucebra's income, gross receipts, business and occupation tax, and employment-related taxes. If tax withholding is required, Customer will pay the required amount to the relevant governmental authority and produce a withholding tax certificate to Lucebra while remitting the residual to Lucebra.

7. Confidentiality

Each party agrees that all code, inventions, know-how, or business, technical, and financial information disclosed to a party (the “Receiving Party”) by the disclosing party (the “Disclosing Party”) constitute the confidential information of the Disclosing Party (“Confidential Information”), provided that it is either identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed. Confidential Information will not, however, include any information that: (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (iii) is already in the possession of the Receiving Party at the time of disclosure by the Discloser; (iv) is obtained by the Receiving Party from a third party without a known breach of the third party's obligations of confidentiality; or (v) is independently developed by the Receiving Party without use of or reference to the Confidential Information. The Receiving Party may disclose the Disclosing Party's Confidential Information if required by law, provided that the Receiving Party will use reasonable efforts to seek confidential treatment for such Confidential Information and, if and as permitted by law, will provide prior notice to the Discloser to allow the Discloser to seek protective or other court orders.

Except as expressly authorized herein or as necessary to perform its obligations hereunder, the Receiving Party agrees: (i) not to disclose any Confidential Information to third parties, and (ii) not to use Confidential Information for any purpose other than as necessary to exercise its rights or perform its obligations hereunder.

8. Processing of Personal Data

Customer agrees that Lucebra may process Personal Data as necessary for: (i) storage and processing in accordance with the Agreement and applicable Order Form(s); (ii) processing initiated by Users in their use of the Services; and (iii) processing to comply with other documented reasonable instructions provided by User (e.g., via email or support tickets) where such instructions are consistent with the terms of the Agreement. To the extent that Customer is subject to data privacy law, then Customer agrees to request from Lucebra a data protection agreement prior to providing any Personal Data to Lucebra. Customer will have sole responsibility for the legality of Personal Data and the means by which Customer acquired Personal Data, including providing legally adequate notices to and obtaining any necessary consent from its employees, agents, or third parties to whom it extends the benefits of the Services.

9. Term and Termination

This Agreement will commence on the Effective Date and will continue until all Order Forms hereunder have expired or have been terminated. The term of an Order Form will be specified as the Subscription Period therein, and unless otherwise stated in such Order Form, the Subscription Period will renew automatically unless terminated by either party by giving at least 30 days written notice prior to the end of the Subscription Period.

Termination for Material Breach: Either party may terminate this Agreement and any applicable Order Form(s) in the event that the other party materially breaches this Agreement by providing 30 days' written notice unless such breach is cured during such 30-day notice period. In the event that Customer terminates this Agreement or any Order Form due to material breach by Lucebra, Customer will be entitled to receive a pro-rated refund for Services not rendered past the termination date. The parties agree that those provisions that by their nature are intended to survive the termination of this Agreement shall survive the termination notwithstanding the cause of termination.

Irrespective of any cure periods stated in this Agreement, Lucebra reserves the right in its sole discretion to terminate or suspend access to the Services for Customer or the relevant Users at any time if immediate action is required to prevent or protect against fraud or to address imminent potential harm or damages.

Trial Subscriptions: Services may be made available on a trial basis (“Trial Subscription”) to Customer for a period of up to 14 days or a longer period agreed between the parties (“Trial Period”). Trial Subscriptions are subject to the terms and conditions of this Agreement except that: (i) Trial Subscriptions may only be used to evaluate and facilitate Customer's decision to purchase a subscription to Services; (ii) Trial Subscriptions are provided by Lucebra on an AS IS and AS AVAILABLE basis without warranties of any kind; and (iii) LUCEBRA'S AGGREGATE LIABILITY FOR ANY AND ALL CAUSES OF ACTIONS, CLAIMS, AND DAMAGES IN CONNECTION WITH ANY TRIAL IS LIMITED TO ONE HUNDRED DOLLARS ($100.00). At the end of the Trial Period, Customer must sign an Order Form and pay the applicable Fees, and this Agreement terminates as related to the Trial Subscription. Customer's continued use of the Services after a Trial Period is subject to this Agreement. If Customer provides Lucebra with any feedback, Customer agrees that Lucebra owns and may use in any manner without limitation, attribution, or compensation in any form all feedback Customer provides. All such feedback shall be deemed Lucebra's Confidential Information.

10. Warranty Disclaimer

EXCEPT AS OTHERWISE AGREED BY THE PARTIES, LUCEBRA PROVIDES THE SERVICES AS-IS AND DISCLAIMS ALL REPRESENTATIONS, CONDITIONS, OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, RELATING TO THE SERVICES, THE COURSES, AND ANY THIRD-PARTY SYSTEMS OR PLATFORMS ACCESSIBLE THROUGH THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES RELATING TO MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR AVAILABILITY.

11. Limitation of Liabilities

NEITHER PARTY WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR RELATED TERMS AND CONDITIONS UNDER ANY THEORY OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY FOR: (i) ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR (ii) IN THE AGGREGATE, ANY AMOUNTS IN EXCESS OF THE FEES PAID OR PAYABLE BY CUSTOMER TO LUCEBRA IN THE 12 MONTHS PRIOR TO THE DATE THE RELEVANT CLAIM AROSE.

Notwithstanding the limitation of liability set forth above: (i) any indemnified liability and any liability arising from violation of the Terms of Use will not be limited, and (ii) each party's liability arising from breach of its confidentiality obligations hereunder will be limited to three times the Fees paid or payable by Customer to Lucebra in the 12 months prior to the date the relevant claim arose.

12. Indemnification

Lucebra's Indemnification Obligations: Lucebra agrees to defend Customer against any third-party claim alleging that the Services infringe a third party's intellectual property rights (“Claim Against Customer”) and indemnify Customer from any proven damages, reasonable attorney fees, and associated reasonable costs and expenses (“Losses”) incurred by Customer as a result of a Claim Against Customer. In the event that the Services become subject to a third-party intellectual property claim, or Lucebra believes that the Services will become subject to such a claim, Lucebra may elect to: (i) modify the Services so that they are no longer allegedly infringing; (ii) obtain a license for Customer's continued use of the Services; or (iii) terminate this Agreement or any applicable Order Forms and provide Customer with a pro-rated refund for Services not rendered past the termination date. This section states Lucebra's sole liability to Customer with respect to a claim that any part of the Services infringes the intellectual property rights of a third party. Lucebra shall have no liability for any claim regarding the Services to the extent that (i) the Services are used by Customer outside the scope of the rights granted in the Agreement or in a manner or for a purpose other than that for which it was supplied, or (ii) the Services are modified by or on behalf of Customer.

Customer's Indemnification Obligations: Customer agrees to defend Lucebra against any third-party claim arising from Customer's or its Users' violation of the Terms of Use (“Claim Against Lucebra”) and indemnify Lucebra from any Losses incurred by Lucebra as a result of a Claim Against Lucebra.

Requirements for Indemnification: For the indemnification obligations to apply, the party seeking indemnification must: (i) promptly tender a claim for indemnification; (ii) allow the indemnifying party sole control of the defense or settlement of the underlying claim; and (iii) reasonably assist with any defense or settlement of the underlying claim at the indemnifying party's request and expense. Notwithstanding the foregoing, a party may not consent to entry of any judgment or enter into any settlement that imposes liability or obligations on the other party or diminishes the other party's rights without obtaining the other party's express prior consent, such consent not to be unreasonably withheld or delayed.

13. Anti-Corruption

Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

14. Publicity

Customer grants Lucebra the right to use Customer's company name and logo as a reference for marketing or promotional purposes on Lucebra's website and in other promotional materials.

15. Force Majeure

Neither party will be liable for any delay in the performance of its obligations hereunder during and to the extent caused by a condition beyond a party's reasonable control, including but not limited to natural disasters, civil disturbances, acts of terrorism or war, labor conditions, interruptions or failures by a third-party hosting or Internet provider, utility provider, governmental actions, or denial of service attacks.

16. Severability

If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be deemed null and void, and the remaining provisions of this Agreement shall remain in effect.

17. Governing Law, Venue, and Attorney's Fees

This Agreement and any disputes arising under it will be governed by the laws of the State of California, without regard to its conflict of laws provisions, and each party consents to the personal jurisdiction and venue of the state or federal courts located in Delaware. In the event of any dispute between the parties regarding the terms of this Agreement, the prevailing party shall be entitled to collect from the other party all costs incurred in such dispute, including reasonable attorney's fees.

18. Team Plan

"Team Plan" means an online learning platform delivering on-demand Courses for businesses and their employees available through self-service sign-up. For Customers purchasing Team Plan only, an electronic Order Form must be submitted online. Order Forms will renew automatically unless terminated by either party by giving at least 30 days written notice prior to the end of the then-current term or by disabling auto-renewal within the Services.

19. Third-Party Transactions

If Services are purchased by a customer of an authorized reseller of Lucebra, this Agreement continues to apply other than terms related to pricing, billing, invoicing, and payment, and instead, the terms of purchase shall be as agreed to between Customer and Reseller. If Services are purchased by a customer of a third-party partner of Lucebra, Sections 2 (Provision of the Services), 3 (Terms of Use), 4 (Violations of Terms of Use), 8 (Processing of Personal Data), 11 (Warranty Disclaimer), 12 (Limitation of Liabilities), and 17 (Governing Law, Venue, and Attorney's Fees) of this Agreement apply.

20. Entire Agreement

This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter. This Agreement and any mutually executed Order Forms shall apply in lieu of the terms or conditions in any purchase order or other documentation that Customer provides; all such terms and conditions are null and void and superseded by this Agreement and any mutually executed Order Forms. Where Lucebra has provided you with a translation of the English language version of this Agreement or any document referenced in this Agreement, the translation is provided for your convenience only, and the English language versions of any such document will control. This Agreement or any part thereof may be modified by Lucebra at any time, including the addition or deletion of terms, and such modifications, additions, or deletions will be effective immediately upon posting.

By adhering to this Master Services Agreement, both parties ensure clarity, compliance, and a robust framework for their collaborative endeavors.