Terms of Service

Last Modified: February 8, 2023

These Terms of Service (the “Terms of Service” or “Agreement”) set forth the terms and conditions governing the relationship between Lunar Outpost Inc. (“Lunar Outpost”) and the customer identified in the applicable Web Order (defined below) or Customer Order (collectively, the “Order”) or other agreement (“Customer” or “you”) relating to the services provided by Lunar Outpost (the “Services”).

1. Services
   • Scope of Services. Subject to the terms and conditions of this Agreement, Lunar Outpost shall provide the services agreed to by the Parties through the www.lunaroutpost.com or lunaratmo.com website (a “Web Order”), or as set forth in a Services Order (“SO”), Statement of Work (“SOW”) or other agreement, as may be further described and defined in Schedule A (the “Services”). Customer shall not control the manner or means by which Lunar Outpost performs the Services.
   • Additional Terms.
     • Order Terms. Each Order may contain additional terms and conditions applicable to the Services (the “Order Terms”). To the extent there is any conflict between the Order Terms and these Terms of Service, the Order Terms shall control.
     • Platform Terms of Use and Privacy Policy. By entering into this Agreement, Customer agrees to the Lunar Outpost Platform Terms of Use located at lunaroutpost.com/termsofuse (“Terms of Use”), and the Lunar Outpost Privacy Policy located at www.lunaroutpost.com/privacy (“Privacy Policy”), which are incorporated herein by reference. Capitalized Terms not defined in this Agreement shall have the meaning set forth in the Terms of Use and Privacy Policy. To the extent the Terms of Use or Privacy Policy are inconsistent with the Terms of Service, the Terms of Service shall control.
   • Changes to Services. Lunar Outpost reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance the quality or delivery of Lunar Outpost Services to its customers, the competitive strength of or market for Lunar Outpost Services or the Services’ cost efficiency or performance; or (b) to comply with applicable law.
   • Savings Clause. Lunar Outpost’s failure to perform, or delay in performing, its responsibilities under this Agreement (including any Order) shall be excused if and to the extent that Lunar Outpost demonstrates that such non-performance or delay is caused by: (i) the failure of Customer or Customer personnel to perform their obligations under this Agreement; (ii) any act performed or omitted by Lunar Outpost or Lunar Outpost personnel at the request of Customer; (iii) any act performed by Customer or Customer personnel to the extent that such act was not otherwise agreed by the parties; or (iv) system failure caused by a malicious third-party technical attack causing a sudden, unplanned increase in network activity above the threshold capacity of Lunar Outpost systems.
   • Third Party Services. Lunar Outpost may make certain third-party products or services available to Customer, or may make its Services available to be used by Customer within certain third-party products or services (all third-party products and services collectively referred to as “Third-Party Services”), for which Lunar Outpost makes no representations, warranties or indemnities and will have no other liability hereunder, notwithstanding anything contained in this Agreement. Customer’s exclusive remedy with regard to Third Party Services shall be against the Third-Party.
2. Access and Use, Customer Restrictions
   • Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Lunar Outpost hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the term of the applicable Order solely for use by Authorized Users in accordance with the terms and conditions in this Agreement. Such use is limited to Customer’s internal use. “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased.
   • Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any intellectual property rights in or relating to the Services, including the Lunar Outpost website and platform, the Lunar Outpost database, and third-party materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, are and will remain with Lunar Outpost and the respective rights holders in the third-party materials.
   • Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other person to, access or use the Services except as expressly permitted by this Agreement and, in the case of Third-Party Services or Third-Party Materials (defined below), the applicable third-party services agreement, license agreement or other Third Party Terms. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:

• copy, modify or create derivative works or improvements of the Services;
• rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
• reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part;
• bypass or breach any security device or protection used by the Services or access or use the Services other than by an Authorized User through the use of his or her own then valid access credentials;
• input, upload, transmit or otherwise provide to or through the Services or the Lunar Outpost website or platform, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code;
• damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services or Lunar Outpost’ provision of services to any third party, in whole or in part;
• remove, delete, alter or obscure any trademarks, specifications, documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services, including any copy thereof;
• access or use the Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party or that violates any applicable law;
• send or store material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, agents or programs;
• attempt to gain unauthorized access to the Service or its related systems or networks;
• use the Services in any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries);
• engage in any other conduct that restricts or inhibits anyone’s use of the Services, or which, as determined by Lunar Outpost, may harm Lunar Outpost or users of the Lunar Outpost Services or expose them to liability;
• use any device, software or routine that interferes with the proper working of the Services;
• access or use the Services for purposes of competitive analysis of the Services, the development, provision or use of a competing software service or product or any other purpose that is to Lunar Outpost’ detriment or commercial disadvantage; or
• otherwise access or use the Services beyond the scope of the authorization granted under this Agreement.
  • Customer Obligations. In addition to any other provision of this Agreement, Customer shall: (i) have responsibility for the accuracy, quality, legality, reliability, and appropriateness of all Customer Materials including all Customer Data (as defined below); (ii) use commercially reasonable efforts to prevent unauthorized control or tampering or any other unauthorized access to, or use of, the Services; (iii) comply with all applicable laws (including laws regarding privacy and protection of consumer information) in using the Services; (iv) obtain and maintain all computer hardware, software and communications equipment needed to access the Services; (v) retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer systems, and sole responsibility for all access to and use of the Services. Customer further agrees that, except as otherwise provided, the result of the Services, including any information provided or made available to Customer in connection arising out of the Services, may be used solely for Customer’s internal, lawful business purposes solely with respect to the purposes for which it was provided, and shall not be resold, distributed, sublicensed, or otherwise shared with any other person or entity.
  • Suspension or Termination of Services. Lunar Outpost may, directly or indirectly, through disabling technology or other legal means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other person’s access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) Lunar Outpost receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Lunar Outpost to do so; or (b) Lunar Outpost believes, in its discretion, that: (i) Customer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of Lunar Outpost; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section does not limit any of Lunar Outpost’ other rights or remedies, whether at law, in equity, or under this Agreement.

3. Fees and Expenses
   • Fees. In consideration of the provision of Services by Lunar Outpost and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the applicable Order. Unless otherwise provided, Lunar Outpost will invoice Customer at least once per month.  All fees shall be due within ten (10) days after receipt of the invoice. Applicable fees are also payable via lunaratmo.com on the Billing page. All fees are non-refundable.
   • Expenses. For applicable expenses associated with the Services, unless otherwise agreed to in the Agreement, Customer shall reimburse Lunar Outpost for all reasonable out of pocket expenses incurred in performance of the Services. All expenses related to travel outside of Colorado must be paid in advance.
   • Taxes. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer pursuant to this Agreement; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, Lunar Outpost’s income, revenues, gross receipts, personnel or real or personal property or other assets.
   • Late Payments. Except for invoiced payments that Customer has successfully disputed, all late payments shall bear a two percent (2%) late charge per month. Customer shall also reimburse Lunar Outpost for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.  In addition to all other remedies available under this Agreement or at law (which Lunar Outpost does not waive by the exercise of any rights hereunder), Lunar Outpost shall be entitled to suspend the provision of any Services if the Customer fails to pay any amounts when due and such failure continues for five (5) days following written notice of the failure to pay.
4. Security
   • Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer’s and its Authorized Users’ access credentials; and (e) all access to and use of the Services directly or indirectly by or through the Customer Systems or its or its Authorized Users’ access credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use. “Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services or that incorporates or is derived from the processing of such information, data, or content by or through the Services.
   • Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Services.
5. Lunar Outpost Limited Warranty and Limitation of Liability
   • Lunar Outpost Warranties. Except as otherwise provided, Lunar Outpost warrants that it shall use reasonable efforts to perform the Services (a) in accordance with the terms and subject to the conditions set out in the respective Order and this Agreement, and (b) in a workmanlike and professional manner in accordance with generally recognized industry standards for similar services.
   • Remedy for Breach of Warranties. Lunar Outpost’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of the warranties in section 5.1 shall be for Lunar Outpost to use reasonable commercial efforts to promptly cure any such breach. The foregoing remedy shall not be available unless Customer provides written notice of such breach within ten (10) days after delivery of the Services giving rise to the claim.
   • Disclaimer of Warranties. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT, EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE SERVICES, INCLUDING ANY RELATED SOFTWARE AND EQUIPMENT, ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND OTHERWISE WITHOUT WARRANTY BY LUNAR OUTPOST OR ITS THIRD PARTY PROVIDERS OF ANY KIND AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, LUNAR OUTPOST AND ITS THIRD PARTY LICENSORS AND PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY OF NON-INFRINGEMENT. FOR CLARIFICATION PURPOSES, NEITHER LUNAR OUTPOST NOR ITS THIRD-PARTY PROVIDERS WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY, CAPABILITY, UPTIME, CURRENTNESS OR OTHERWISE. CUSTOMER WILL NOT HOLD LUNAR OUTPOST AND/OR IT’S THIRD PARTY PROVIDERS RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM CUSTOMER’S USE OF THE SERVICES.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO LUNAR OUTPOST AND/OR ITS THIRD-PARTY PROVIDERS. ALL THIRD-PARTY SERVICES AND THIRD-PARTY MATERIALS ARE PROVIDED “AS IS”, AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY SERVICES OR THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY SERVICES AND THIRD-PARTY MATERIALS.
   • Limitation of Liability. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, NEITHER LUNAR OUTPOST NOR ITS THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS SHALL BE LIABLE TO CUSTOMER (OR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM CUSTOMER’S RIGHTS) FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND — INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS AND LOSS OF DATA — IN ANY WAY RELATED TO THIS AGREEMENT (INCLUDING ANY ORDER), INCLUDING WITHOUT LIMITATION AS A RESULT OF ANY BREACH OF ANY WARRANTY OR OTHER TERM OF THIS AGREEMENT OR AS A RESULT OF NEGLIGENCE OR BREACH OF STATUTORY DUTY, REGARDLESS OF WHETHER THE PARTY THAT IS LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. IN NO EVENT SHALL LUNAR OUTPOST’S LIABILITY FOR A CLAIM UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID TO OR RECEIVED BY LUNAR OUTPOST UNDER THE APPLICABLE ORDER FROM WHICH THE CLAIM AROSE DURING THE TWELVE-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE.
6. Third-Party Materials. To the extent the Services include software, content, data, or other materials, including related documentation, that are owned by persons other than Lunar Outpost (“Third Party Materials”) and that are provided to Customer on license or other terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Terms”), Customer is bound by and shall comply with all Third-Party Terms, and Customer’s exclusive remedy as to the Third Party shall be against the Third-Party. Any breach by Licensee or any of its Authorized Users of any Third-Party License is also a breach of this Agreement.
7. Customer Representations and Warranties. In addition to any other representations and warranties set forth in this Agreement, Customer represents, warrants and covenants that: (i) it is a legal entity duly organized, validly existing and in good standing in the jurisdiction of its incorporation / organization / formation; (ii) it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement; (iii) it has the full right, power and authority to enter into this Agreement and to provide all Customer Materials (including all Customer Data); and (iv) it is now and through the Term shall remain in compliance with all applicable laws. Customer further represents, warrants and covenants that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Materials so that, as received by Lunar Outpost and processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law, and that it will comply with all terms and conditions of any agreement between Customer and the provider of Third-Party Services or Third-Party Materials.
8. Customer Indemnification. In addition to any other indemnification obligations under this Agreement, Customer shall defend, indemnify and hold harmless Lunar Outpost, and its officers, directors, employees, agents, Affiliates, successors and permitted assigns, and third party providers and licensors (collectively, “Lunar Outpost Indemnified Party”), from and against any and all claims and losses arising out of or resulting: (i) (a) Customer Materials, including any processing of Customer Materials (including Customer Data) by or on behalf of Lunar Outpost in accordance with this Agreement; (b) use of any Third-Party Services or Third-Party Materials, (c) Customer’s breach of any of its representations, warranties, covenants or obligations under this Agreement; (d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement; or (e) Customer’s violation or alleged violation of applicable law.
9. Intellectual Property. Except as otherwise provided, all intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Lunar Outpost in the course of performing the Services (collectively, the “Deliverables”), except for any Confidential Information of Customer or customer materials incorporated in the Deliverables, shall be owned by Lunar Outpost. Provided full payment has been received by Lunar Outpost, Lunar Outpost hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services during the Term.
10. Customer Materials Intellectual Property License. Customer hereby grants to Lunar Outpost the limited, royalty-free, non-exclusive right and license to the Customer Materials solely as necessary to incorporate the Customer Materials into the work product and deliverables as described in the Agreement and any Order or to use for purposes of providing the Services. “Customer Materials” means, collectively, all content and all other information in any form or media, including but not limited to Customer Data and all other documents, data, know-how, ideas, specifications, software code and other materials provided to Lunar Outpost by or on behalf of Customer, whether or not the same: (a) are owned by Customer, a third party or in the public domain; or (b) qualify for or are protected by any intellectual property rights.
11. Confidentiality
    • Confidential Information. From time to time during the Term of this Agreement, either party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”), non-public proprietary and confidential information of Disclosing Party (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information.
    • Non-Disclosure. The Receiving Party shall: (a) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy.
12. Term and Termination
    • Term. This Agreement shall remain in effect for the duration of the Services provided under the applicable Order (the “Term”).
    • Termination for Default. Either party may terminate this Agreement or the applicable Order, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party:

• Materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach.
• Becomes insolvent or admits its inability to pay its debts generally as they become due, becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, is dissolved or liquidated or takes any corporate action for such purpose, makes a general assignment for the benefit of creditors, or has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

13. Miscellaneous
    • Entire Agreement. The agreement, including these Terms of Service, the Orders, Lunar Outpost’s standard Terms and Conditions for the Sale of Equipment, and related exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the parties with respect to the subject matter contained in the Agreement, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
    • Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”) must be in writing and addressed to the other party at its address set forth in the Order (or to such other address that the receiving party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving party; and (b) if the party giving the Notice has complied with the requirements of this Section.
    • Independent Contractor. Lunar Outpost shall be an independent contractor with respect to the performance of Services under this Agreement.  Lunar Outpost and Customer agree that nothing in this Agreement shall be (i) construed as constituting Lunar Outpost as other than an independent contractor of Customer for any purpose whatsoever or (ii) deemed to create an employer-employee, partnership, franchise or joint venture relationship between Lunar Outpost and Customer. 
    • Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the parties shall negotiate in good faith to modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    • Non-Solicit/Non-Hire. During the term of this Agreement, and for a period of one (1) year following the expiration or termination of this Agreement, Customer will not, directly or indirectly, (i) solicit, employ, offer employment to, or otherwise engage as an employee, independent contractor, or otherwise, any individual who is or was an employee of Lunar Outpost at any time during the term, or in any manner induce or attempt to induce any employee of Lunar Outpost to terminate their employment with Lunar Outpost, or (ii) materially interfere with the relationship of Lunar Outpost with any individual who at any time during, prior to, or after the Effective Date was an employee of Lunar Outpost, without the prior written consent of Lunar Outpost. 
    • Amendments. No amendment to or modification of this Agreement or any Agreement is effective unless it is in writing, identified as an amendment to this Agreement, and signed by an authorized representative of each party.
    • Waiver. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving.  Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
    • Assignment. Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Lunar Outpost. Any purported assignment or delegation in violation of this Section shall be null and void.  No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement. 
    • Successors and Assigns. This Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective permitted successors and permitted assigns.
    • No Third-Party Beneficiaries. This Agreement benefits solely the parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
    • Choice of Law. This Agreement, including the Order and all exhibits attached to this Agreement or Order, and all matters arising out of or relating to this Agreement, is governed by, and is to be construed in accordance with, the laws of the State of Colorado, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Colorado.
    • Arbitration. Any controversies or disputes arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with current Commercial Arbitration Rules of the American Arbitration Association. The parties shall select a mutually agreeable arbitrator knowledgeable about the issues relating to the subject matter of this Agreement. In the event the parties are unable to agree to such a selection, each party will select and arbitrator and the two arbitrators in turn shall select a third arbitrator, all three of whom shall preside jointly over the matter. The arbitration shall take place in Denver, Colorado, or an otherwise mutually agreed upon by the parties. All documents, materials, and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copying no later than 30 days after the notice of arbitration is served. The arbitrator(s) shall not have the authority to modify any provision of this Agreement or to award punitive damages. All arbitrated decisions shall be effective immediately upon entry and shall be binding on the parties until or unless vacated by the arbitrator(s) pursuant to part 2 of article 22 of title 13, C.R.S., or until modified or corrected by the arbitrator pursuant to part 2 or article 22 of title 13, C.R.S.
    • Attorney Fees. In any action or proceeding between the parties to enforce the terms of this Agreement, in addition to all other legal or equitable remedies, the prevailing party shall be entitled to recover from the non-prevailing party all costs and expenses, including reasonable attorneys’ fees incurred to enforce this Agreement or by reason of such action or proceeding.
    • Force Majeure. Lunar Outpost shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Lunar Outpost including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

Schedule A

Additional Services Description

1. Data Routing to Customer.  If set forth in the applicable Order, data collected by the Lunar Outpost Canary sensors, which may include:  particulate matter, temperature, humidity, pressure, VOC (Volatile Organic Compounds), ozone, NO2, CO, CO2, H2S, So2, wind speed and direction, methane, trigger summa canister, WBGT, or future additional sensors (collectively the “Monitoring Data”), shall be routed using a third party cellular data and data routing service to Customer’s database via a Customer provided API or to Lunar Outpost’s database per Customer choice.  Except as otherwise agreed, the Data Routing to Customer Services shall be charged at the rate of $10 per month per sensor.

2. Lunar Outpost Platform Access. If set forth in the Order, the Customer selected Monitoring Data shall be routed using a third-party cellular data service to Lunar Outpost’s Lunaratmo Platform, currently located at www.lunaratmo.com.  Authorized User’s will be able to access and download the Monitoring Data from the Platform. Except as otherwise agreed, the access to the Monitoring Data through the Lunar Outpost Platform shall be charged at the rate of $10 per month per sensor.