Lumin Digital, LLC (“Lumin Digital”) provides an extensible digital banking platform and associated services (the “Service”), and offers a related software development kit consisting of: the documentation (“Documentation”), redistributable libraries (“Libraries”), sample code (“Sample Code”), and other materials provided to you directly in the applicable software development kit download, and any upgrades, modified versions, additions, and improvements thereof, if any, (collectively, the “SDK”) designed to enable authorized software developers to build applications on top of the Service.
This Software License Agreement (the “Agreement”) governs use of the SDK by you, and/or the entity on whosebehalf you are downloading and using the SDK (“you”). BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SDK, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE AGREEMENT. IF YOU DO NOT AGREE, YOU MAY NOT USE THE SDK AND MUST DISCONTINUE ANY USE OF THE SDK. Accordingly, you and Lumin Digital acknowledge and agree as follows:
1. LIMITED LICENSE. Subject to your complete and ongoing compliance with all the terms and conditions set forth in this Agreement, including without limitation all license limitations and restrictions set forth herein, Lumin Digital grants you the following limited, non-exclusive, non-transferable, non-sublicensable, revocable licenses to:
a. use, and (where applicable) authorize your employees to use,the Documentation internally solely in connection with developing your own branded applications or modified versions of Lumin Digital applications that interoperate with the Service (“Applications”);
b. incorporate unmodified Libraries into your Application, solely for the purpose of enabling interoperability with the Service, solely in accordance with all applicable Documentation and applicable terms, to distribute such Libraries so incorporated in your Application to end users in either: a hosted website; or on the Apple iOS; or Google Android mobile application form; and
c. use and modify the Sample Code pursuant to the terms of this Agreement with included or associated Libraries, as identified in the associated Documentation.
3. RESERVATION OF RIGHTS. The SDK is owned by Lumin Digital and licensed, not sold, to you. The SDK, content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, services, and all other elements of the SDK and related Documentation (the “Lumin Digital Materials”), are protected by copyright, trade dress, patent, and trademark laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. As between you and Lumin Digital, all Lumin Digital Materials, including intellectual property rights therein and thereto, are the sole and exclusive property of Lumin Digital or its subsidiaries or affiliated companies and/or its third-party licensors. You may not sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or make any useof the Lumin Digital Materials except as expressly authorized hereunder. Lumin Digital reserves all rights not expressly granted in this Agreement. You do not acquire any right, title, or interest to the Lumin Digital Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in this Agreement.
4. CONFIDENTIALITY. The SDK (including as embodied in or utilized by any Application) as well as Applications developed with the SDK are the confidential and proprietary information of Lumin Digital (“Proprietary Information”), and you may not, during the term of this Agreement or thereafter, disclose any Proprietary Information to any third party, oruse Proprietary Information for any purpose other than as expressly provided herein, without a separate written agreement with Lumin Digital authorizing you to do so. Therefore, any third party, including subcontractors hired to develop Applications using the SDK, require a separate and direct SDK license agreement with Lumin Digital. Any other use is strictly prohibited and shall be considered a material breach of this Agreement.
5. FEEDBACK. If you provide Lumin Digital with any comments, bug reports, feedback, enhancements, or modifications (whether proposed or suggested by you) for the SDK or the Service (“Feedback”), such Feedback is provided on a non-confidential basis (notwithstanding any notice to the contrary you may include in any accompanying communication), and Lumin Digital shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes or their implementations, in design, source code, or Application form, into the Lumin Digital Materials, SDK or Service. You hereby grant Lumin Digital a perpetual, irrevocable, transferable, sublicensable, nonexclusive license under all rights necessary to so incorporate and use your Feedback for any purpose, including to make and sell products and services.
6. THIRD PARTY SOFTWARE. The SDK consists of a package of components, including certain third-party software (“Third Party Software”) that are provided by their respective authors under separate license terms (the “Third Party Terms”), as described in more detail in the SDK. Your use of the Third Party Software in conjunction with the SDK in a manner consistent with this Agreement is permitted, however, you may have broader rights under the applicable Third Party Terms and nothing in this Agreement is intended to impose further restrictions on your use of the Third Party Software.
7. TERM AND TERMINATION. This Agreement will remain in effect until terminated as provided herein, or upon expiration or termination of the Digital Banking Addendum. The Agreement, and your rights and licenses hereunder, will terminate immediately upon your breach of the Agreement. You may terminate the Agreement by uninstalling and ceasing all use of the SDK with prompt written notice to Lumin Digital. Lumin Digital may terminate this Agreement at any time for any reason, including without limitation any actual or suspected misuse or abuse by you of the SDK or any actual or suspected violation of this Agreement. Following any termination of this Agreement, you must immediately uninstall and cease use of the SDK and destroy all copies. Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11 shall survive any termination of this Agreement.
8. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY. THE SDK AND ALL ASSOCIATED DOCUMENTATION, LIBRARIES, AND SAMPLE CODE ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LUMIN DIGITAL, LLC DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, QUALITY, RESULTS, AND NON-INFRINGEMENT. LUMIN DIGITAL, LLC EXPRESSLY DISCLAIMS ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE ACCURACY OR FUNCTIONALITY OF THE SDK, AND WITH RESPECT TO THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY INFORMATION OR FEATURES AVAILABLE THROUGH THE SDK, OR THE QUALITY OR CONSISTENCY OF THE SDK OR RESULTS OBTAINED THROUGH ITS USE. UNDER NO CIRCUMSTANCES WILL LUMIN DIGITAL, LLC BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER ARISING OUT OF THE USE OR INABILITY TO USE THE SDK, EVEN IF LUMIN DIGITAL, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT WILL LUMIN DIGITAL. LLC’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF THIS AGREEMENT OR THE TERMS EXCEED THE GREATER OF AMOUNTS PAID BY YOU FOR THE SDK, IF ANY, OR $100USD. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH AN EVENT THE ABOVE LIMITATIONS AND EXCLUSIONS WILL BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
9. INDEMNITY. You agree to indemnify, defend, and hold Lumin Digital and its affiliates, officers, directors, suppliers, licensors, and other customers harmless from and against any and all liability and costs, including reasonable attorneys’ fees incurredby such parties, in connection with or arising out of your Applications, your use or misuse of the SDK, or your violation of this Agreement, any applicable law or regulation.
10. SECURITY. You agree to exercise commercially reasonable care to use the SDKto develop Applications that are free from security vulnerabilities which could impact the confidentiality, integrity, or availability of a Lumin Digital hosted digital banking operating environment (“Environment”). You agree that for each Application and every version or build thereof that you deliver for hosting in an Environment, you have performed a dependency vulnerability assessment, static code analysis, and other applicable application security testing, and that you have mitigated any identified security risks therein. You may provide access to the source code of Applications you develop to third parties for the sole purpose of performing application security testing, provided such third parties are bound to protect Lumin Digital’s Proprietary Information under terms substantially similar to the confidentiality obligations contained in this Agreement. Furthermore, you agree to design and implement Applications in accordance with generally accepted application security best practices, including theOpen Web Application Security Project (OWASP) and OWASP Mobile Security Project, as applicable. You agree Lumin Digital has no obligation to accept, install, or host your Application or any version or build thereof into the Environment for any reason. You also agree that while Lumin Digital has no obligation to perform reviews of your Application, it may agree to do so for you as a paid service; however, such reviews are advisory in nature only and do not change the terms of this Agreement, including but not limited to terms on warranty, limitation of liability, indemnification, and security.
11. GOVERNING LAW; VENUE. Any claim relating to the SDK or Service shall be governed by the laws of Florida, without regard to conflict of laws provisions. Disputes arising hereunder shall be resolved in, and subject to the sole and exclusive jurisdiction of the state and federal courts located in the Middle District of Florida.
12. MISCELLANEOUS. This Agreement is the entire agreement between you and Lumin Digital as it relates to the SDK and related Lumin Digital Materials, and supersedes any and all prior agreements, negotiations, or other communications between you and Lumin Digital, whether oral or written, with respect to the subject matter hereof, and, except as expressly provided herein, cannot be modified except in writing signed by both parties. In the event that any provision of this Agreement is held to be invalid or unenforceable, then: (a) such provision shall be deemed reformed to the extent strictly necessary to render such provision valid and enforceable, or if not capable of such reformation shall be deemed severed from this Agreement; and (b) the validity and enforceability of all of the other provisions hereof, shall in no way be affected or impairedthereby. You may not assign this Agreement without the prior written consent of Lumin Digital, whether expressly or by operation of law, including in connection with a merger or change of control, and any such attempted assignment shall be void and of no effect. Lumin Digital may assign this Agreement without restriction and without any notice to you. Subject to the foregoing, this Agreement shall be binding on the parties and their respective successors and permitted assigns. You acknowledge and understand that if Lumin Digital is unable to provide the SDK as a result of a force majeure event Lumin Digital will not be in breach of this Agreement. A force majeure event means any event beyond the control of Lumin Digital. The failure to exercise, or delay inexercising, a right, power or remedy provided in this Agreement or by law shall not constitute a waiver of that right, power or remedy. Lumin Digital’s waiver of any obligation or breach of this Agreement shall not operate as a waiver of any other obligation or subsequent breach of the Agreement. The English language version of this Agreement shall be the official and controlling version, and any translation provided is solely for convenience.