Luna Labs - Developmental Technologies

Luna Innovations Incorporated
Research Terms & Conditions of Sale
Rev. – December 2013
These Terms and Conditions of Sale (“Terms”) govern the sale of Research, Products and Support by Luna Innovations Incorporated (“Luna”).

1. Definitions
(a) “Research” means any work that is experimental in nature,
performed on a best effort basis described in a Luna Sales
Quotation attached hereto and made a part hereof, or otherwise
sold to Customer under these terms.
(b) “Product(s)” means any products described in a Luna Sales
Quotation attached hereto and made a part hereof, or otherwise
sold to Customer under these Terms, including Software. “Custom
Products” means Products manufactured or configured to meet
Customer requirements.
(c) “User Documentation” means the documentation normally
made available by Luna to purchasers of Product, in printed or
electronic form, relating to the use of the Product.
(d) “Software” means software that is loaded, incorporated or
embedded in hardware furnished to Customer hereunder and any
derivatives thereof.
(e) “Specifications” means specific technical information about
Products which is published by Luna in effect on the date Luna
ships Customer’s order.
(f) “Support” means any standard service such as hardware
maintenance, calibration and repair, Software updates and
maintenance, or education and training, described in a Luna Sales
Quotation attached hereto and made a part hereof, or otherwise
sold to Customer under these Terms. “Custom Support” means
Support adapted to meet Customer requirements.
(g) “Project” shall mean the project in connection with which Luna
has performed Research or supplied Product.
(h) “Installation Services” shall mean the installation, set-up, test
and related services for the Product, which are more specifically
defined in Luna’s current published specifications therefor.
2. Shipment and Packaging
(a) Luna shall select the method of shipment of the Product. The
cost of such shipment shall be Luna’s then current area destination
charge, and the cost of such shipment shall be added to the
purchase price set forth in the Sales Quotation. If Customer shall
desire a different mode of shipment, Customer shall advise Luna
thereof, and Customer shall pay Luna any incremental costs
associated with such different mode of shipment.
(b) The Product shall be packaged in accordance with Luna’s then
current packaging specifications for the Product for the method of
shipment selected by Luna, and the cost of such packaging shall be
included in the purchase price of Sales Quotation. If Customer
desires or requires (including to accommodate a different mode of
shipment) different or special packaging, Customer shall advise
Luna thereof, shall assume all liability therefor, and shall pay Luna
any incremental costs associated with such different or special
packaging.
(c) The Product shall be delivered F.O.B. Luna’s dock. Title to
any goods to be delivered under these Terms and risk of loss or
damage to such goods will pass to Customer upon delivery of the
goods to the carrier.
3. Purchase Price, Taxes and Payment Terms
(a) The purchase price for the Product shall be as set forth in the
Sales Quotation. The purchase price, together with all applicable
shipping charges, packaging charges, other special charges and
taxes, including any and all penalties, but less any credits or
deposits, shall be payable to Luna within 30 days of the invoice
date. Customer shall pay a late payment charge of 1.5 percent per
month, or the maximum rate permitted by applicable law,
whichever is less, on any unpaid amount for each calendar month
or fraction thereof that any payments are in arrears to Luna.
(b) Prices quoted do not include any transportation, insurance,
federal, state, local, value-added, sales, use, excise, property or
similar taxes or duties now in force or hereafter enacted. Customer
shall pay all taxes, fees or charges of any nature whatsoever
imposed by any governmental authority on, or measured by, the
transaction between Customer and Luna, in addition to the prices
quoted or invoiced. If Luna is required to collect the foregoing,
such amounts will appear as separate items on Luna’s invoice and
paid by Customer unless Customer provides Luna with a valid tax
exemption certificate authorized by the appropriate taxing
authority. Customer agrees to provide Luna with a valid resale
certificate for the Products purchased for resales.
(c) Payment terms are subject to Luna credit approval. Luna may
change credit or payment terms at any time should Customer’s
financial condition or previous payment record so warrant.
(d) Customer shall account for any rebates, credits or other
applicable discounts received from Luna in accordance with all
applicable federal and state laws and regulations.
4. Warranty
(a) Work provided as research or that is experimental in nature is
provided on a “best effort” basis. As such, performance and
results are not guaranteed on these programs.
(b) In the event that Luna supplies product samples or other
materials to the Receiving Party hereunder (“Samples”), the
Receiving Party agrees that it will use the Samples solely for
performance evaluation, and the Receiving Party will not provide
the Samples or any portion thereof to any other person or entity
without the express prior written consent of the Disclosing Party.
The Receiving Party agrees that it will not, and will not cause any
third party to, reverse engineer or disassemble the Samples,
including analyzing the Samples by physical, chemical or
biochemical means. The Receiving Party expressly agrees that its
use of Samples shall be in compliance with all applicable laws,
rules, and regulations. Any Samples delivered pursuant to this
Agreement is understood to be experimental in nature and may
have hazardous properties.
THE PROVIDER OF THE
SAMPLES MAKES NO REPRESENTATIONS AND
EXTENDS NO WARRANTIES OF ANY KIND, EITHER
EXPRESS OR IMPLIED. THERE ARE NO EXPRESS OR
IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE
USE OF THE SAMPLES WILL NOT INFRINGE ANY
PATENT, COPYRIGHT, TRADEMARK, OR OTHER
PROPRIETARY RIGHTS.
The Receiving Party assumes all
liability for damages that may arise from its use, storage or
disposal of the Samples. In no event shall the provider of Samples
be liable to the Receiving Party for any use of Samples.

5. Confidential, Proprietary and Trade Secret Information and
Materials
Luna and Customer shall each keep confidential and protect from
unauthorized use and disclosure all (a) confidential, proprietary
and/or trade secret information; (b) tangible items and software
containing, conveying or embodying such information; and (c)
tooling identified as being subject to this article and obtained,
directly or indirectly, from the other in connection with this
contract or other agreement referencing this contract (collectively
referred to as "Proprietary Information and Materials"). Luna and
Customer shall each use Proprietary Information and Materials of
the other only in the performance of and for the purpose of this
contract and/or any other agreement referencing this contract. The
restrictions on disclosure or use of Proprietary Information and
Materials by Customer shall apply to all materials derived by
Customer or others from Luna’s Proprietary Information and
Materials. The provisions of this paragraph are effective in lieu of
any restrictive legends or notices applied to Proprietary
Information and Materials. The provisions of this article shall
survive the performance, completion, termination or cancellation
of this contract.
6. Termination/Cancellation
(a) Any order for product, research or support may be terminated
or cancelled by Luna with respect to any Products, Research or
Support supplied or to be supplied hereunder if:
(1) Customer fails to pay Luna the purchase price;
(2) Customer is in default of any other provision of these
Terms and such default has not been cured within thirty
(30) days after written
notice thereof is given by Luna; or (3) Customer becomes
insolvent or seeks protections, voluntarily or involuntarily,
under any bankruptcy laws.
(b) In the event of any termination/cancellation of these Terms,
Luna may:
(1) Declare all amounts owed to Luna to be immediately due
and payable;
(2) Enter Customer’s premises and repossess the Product and
all other items supplied by Luna; and
(3) Cease performance of all its obligations hereunder without
liability to Customer.
(c) The foregoing rights and remedies of Luna shall be cumulative
and in addition to all other rights and remedies available to Luna in
law and in equity.
(d) Prior to the date of shipment, Customer may cancel its order,
subject to a cancellation fee, which will include but not be limited
to expenses already incurred for labor and material costs,
overhead, commitments made by Luna, and a reasonable profit. In
the event of cancellation, Customer will have no rights in partially
completed goods.
(e) Provisions which by their nature extend beyond the termination
of any sale or license of Products or Support will remain in effect
until fulfilled.
7. Force Majeure
Luna shall not be liable for any failure to perform under these
Terms if the failure arises from causes beyond the control and
without the fault or negligence of Luna. Examples of these causes
are (a) acts of God or of the public enemy, (b) acts of the
Government in either its sovereign or contractual capacity, (c)
fires, (d) floods, (e) epidemics, (f) quarantine restrictions, (g)
strikes, (h) freight embargoes and (i) unusually severe weather. If
the delay is caused by delay of a subcontractor of Luna and if such
delay arises out of causes beyond the reasonable control of both,
and if such delay is without the fault or negligence of either, Luna
shall not be liable for excess costs.
8. Limitation of Liability
(a) IN NO EVENT SHALL LUNA, ITS SUBCONTRACTORS
OR SUPPLIERS BE LIABLE TO CUSTOMER FOR INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES
(INCLUDING DOWNTIME COSTS, LOSS OF DATA,
RESTORATION COSTS, LOST PROFITS, OR COST OF
COVER) ARISING OUT OF OR RELATED TO THESE TERMS
OR THE PERFORMANCE OR BREACH THEREOF, EVEN IF
LUNA HAS BEEN ADVISED OF THE POSSIBILITY
THEREOF. THIS EXCLUSION IS INDEPENDENT OF ANY
REMEDY SET FORTH IN THESE TERMS.
(b) To the extent that limitation of liability is permitted by law,
Luna’s liability to Customer is limited to refund of the Product
purchase price.
(c) The remedies in these Terms are Customer’s sole and exclusive
remedies.
9. Intellectual Property
(a) Rights to all technology and/or intellectual property developed
prior to or otherwise independently of this Project shall remain the
property of the respective developing party.
(b) Ownership of all rights to inventions, improvements and/or
discoveries, whether patentable or copyrightable or not, relating to
the Project shall be in accordance with inventorship thereof, where
inventorship shall be determined under prevailing U.S. Patent law.
Inventions made solely by one party shall be owned by such party,
and joint inventions shall be owned jointly without obligation of
accounting.
(c) Customer hereby grants Luna a non-exclusive, perpetual,
worldwide royalty-free license for any and all intellectual property
developed in the course of performance of the Project.
(d) Customer may not reverse engineer the Product. Neither the
Product nor any intellectual property inherent in the Product may
be used by Customer in the field of medical robotics. Customer
shall indemnify Luna for any of Luna’s damages, costs and
expenses (including legal fees) arising from any breach by
Customer of the foregoing restrictions.
10. Software
(a) Luna retains ownership of all right, title and interest in all
intellectual property rights pertaining to Software provided
hereunder. Customer acknowledges that it has been hereby granted
a personal, nonexclusive, non-transferable license without the right
to grant sublicenses to run the Software in machine readable form
only on the hardware in which it is furnished hereunder, for the
exclusive purpose of processing Customer’s internal data and not
for the purposes of providing services to third parties, and solely
for use in connection with Products sold by Luna hereunder in
accordance with the documentation provided with the Software
(“Product Use”). Customer will strictly adhere to the Product Use
of the Software and will not, in particular, create derivatives of the
Software, nor translate, adapt, arrange, or otherwise alter or
perform error corrections, nor, disclose, sell, assign, rent, lend,
sublicense, or otherwise transfer the Software, or any licenses
granted hereunder. Customer may not copy the Software onto any
public or distributed network. Customer also agrees that it will not
reverse engineer the Software (except to the extent that such
restrictions are prohibited by applicable law). Nothing in these
Terms shall be interpreted as conveying or granting a license to
Customer of any Licensed Software in source code form. Luna
may terminate Customer’s license upon notice for breach of these
Terms. Customer must destroy all copies of the Software
immediately upon notice of termination.
(b) Customer shall have the exclusive responsibility for preparing
and maintaining the site for the Product, including, but not limited
to, providing power and environmental requirements (as specified
by Luna), wiring, and communications lines, and for obtaining and
maintaining the necessary permits and certifications therefor.
Customer’s failure to prepare and maintain the site and to obtain
the necessary permits and certifications shall relieve Luna of the
obligation of performing Installation Services. If Customer elects
to have Luna perform Installation Services and Luna has received
payment therefor, acceptance by Customer occurs upon
completion of the Installation Services. Luna shall perform the
Installation Services at the facility designated by Customer as soon
as commercially reasonably practicable after delivery of the
Product to Customer’s facilities. If Luna is precluded from
performing Installation Services by applicable law or union
contract, Customer may require that Luna supervise others in the
performance of such Installation Services and Customer shall bear
all costs for the performance thereof. If Customer schedules or
delays installation by Luna more than thirty (30) days after
Delivery, Customer acceptance of the Product will occur on the
thirty-first (31
st) day after delivery. For Products without
Installation Services included, acceptance by Customer occurs
upon delivery.
11. Title and Security Interest
(a) Notwithstanding Paragraph 2(c), Luna shall retain a purchase
money security interest in all Products sold hereunder and the
proceeds thereof, in the amount of the full purchase price. In the
event of default by Customer in any of its obligations to Luna,
Luna will have the right to repossess the goods sold hereunder
without liability to Customer. These security interests will be
satisfied by payment in full.
(b) Customer hereby authorizes Luna, where permitted by
applicable law, to file a financing statement without the signature
of Customer. At Luna’s request, Customer shall execute such other
documents as Luna may request to perfect or enforce Luna’s
security interest in the Product. Customer shall not remove the
Product from the location specified for shipment without Luna’s
prior written consent, so long as Luna retains a security interest in
the Product.
12. Export Control
Any Customer who exports, re-exports, transfers or imports
Products, technology or technical data purchased hereunder,
assumes responsibility for complying with all applicable U.S. and
other laws and regulations, and for obtaining required export and
import authorizations. Customer shall comply with the laws and
regulations of the United States relating to exports and foreign
transactions, including, but not limited to, the International Traffic
in Arms Regulations (ITAR) and the Export Administration
Regulations (EAR). In particular, Customer shall not disclose any
technical data, nor deliver or export any Product manufactured by
use of technical data, out of the United States, or to foreign entities
within the United States, without proper written authorization from
the United States Government. Luna may suspend performance if
Customer is suspected to be in violation of applicable laws or
regulations.
13. General
(a) These Terms shall be effective upon execution thereof by the
parties, or as otherwise deemed effective as provided by law, it
being understood that LUNA’S ACCEPTANCE OF ANY
CUSTOMER PURCHASE ORDER OR IS EXPRESSLY
CONDITIONED ON CUSTOMER’S ASSENT TO THESE
TERMS. NO TERMS OR CONDITIONS SET FORTH IN
CUSTOMER’S PURCHASE ORDER OR OTHER
CORRESPONDENCE ARE ACCEPTED BY LUNA, AND
LUNA HEREBY OBJECTS TO ANY SUCH TERMS.
(b) Neither party’s failure to exercise any of its rights under these
Terms will be deemed a waiver or forfeiture of those rights.
(c) To the extent that any provision of these Terms is determined
to be illegal or unenforceable, the remainder of these Terms will
remain in full force and effect.
(d) The United Nations Convention on Contracts for the
International Sale of Goods will not apply to these Terms.
(e) Any cause of action arising out of or related to these Terms
must be brought no later than one year after the cause of action has
accrued.
(f) These Terms are the sole agreement between the parties relating
to the subject matter hereof and supersede all prior understandings,
writings, proposals, representations or communications, oral or
written, of either party. These Terms may only be amended by an
instrument executed by the authorized representatives of both
parties.
(g) Any clerical errors made on quotations or order acceptances
accompanying this form are subject to correction by Luna.
(h) These Terms and any dispute arising out of the subject matter
hereof or the related transaction shall be governed by the laws of
the Commonwealth of Virginia, without regard to conflict-of-law
principles. The exclusive venue for any such dispute shall be in
the state or federal courts of the Western District of Virginia, to
whose jurisdiction the parties hereby submit.
(i) Neither these Terms nor any rights, duties or obligations of
Customer under these Terms may be assigned or transferred by
Customer. Any attempt by Customer to assign or transfer these
Terms or any of the rights, duties or obligations under these Terms
without Luna's prior written consent is void.