These Services Terms, together with the general Lumina Networks Terms and applicable annexes thereto, govern your purchase and use of, and Lumina’s provision of, Lumina Networks, Inc. (“Lumina Networks”) Services (as defined in the Lumina Networks Terms). The Lumina Networks Terms are incorporated by this reference: General Terms. Capitalized terms not defined herein shall have the meanings ascribed to them in the Lumina Networks Terms.
These Services Terms cover all services offered and/or provided by Lumina as may be set forth in: (i) a service description issued by Lumina; or (ii) a statement of work (“SOW”) signed by the parties. For example, these Services Terms may cover installation, implementation, configuration, consulting and other assistance in the use of the Lumina Products, etc. For clarity, these Services Terms do not cover warranty services provided pursuant to a Product warranty (see Software Terms) or Support provided pursuant to a Support Plan (see the Support pages on Lumina.com and the Support Terms). Additional terms and conditions as defined in a SOW signed by the parties or in a services description provided by Lumina may apply to the following services:
- Lumina Resident Consultant
- Professional Services
- Training and Education Services
In addition, Lumina may include Services as part of certain Product offerings and may include the terms for those Services in the terms applicable to the offering.
2. Services Terms. Lumina will provide the Services described in a Lumina services description attached to an order, or otherwise agreed between you and Lumina in an applicable SOW. Lumina may perform Services remotely from a location of its choice unless the applicable order or SOW expressly states that the Services are to be performed onsite at a different location (“Onsite”). Unless specifically stated otherwise in the applicable order, Lumina has no obligation to perform background checks or drug screening of its personnel assigned to perform the Services. Lumina has no obligation to perform Services outside of its normal business hours unless expressly agreed in writing. Lumina may charge a higher rate for hourly services performed outside of regular business hours.
3. Services Warranty. Lumina warrants, for the thirty (30) day period following the completion of the Services (where no acceptance procedure is applicable), or the thirty (30) day period following acceptance of the Services and Deliverables where an acceptanc period is applicable, that all Services will be performed in a professional and workman-like manner by appropriately trained personnel, using generally accepted industry standards and practices. As Lumina's sole liability and your exclusive remedy for a breach of this warranty, if the Services are not provided as warranted, Lumina will, at its sole discretion, either: (i) correct any material non-conformances in the Deliverables; or (ii) re-perform the Services. This warranty does not apply to the extent any non-conformity relates to (i) any specifications, code, diagnostic or other tools, or any other materials provided by you; (ii) the integration, operation, modification, or use of the Services or any Deliverables in any manner not authorized by Lumina, and (iii) any changes to the network environment after the services were rendered.
4. Acceptance. Services and related Deliverables are subject to a right of acceptance only if expressly stated in the applicable services description or SOW. Where you have a right of acceptance, you may reject Services or Deliverables only for a material failure to conform to the specifications described by in the applicable SOW or services description. You must evaluate Services and Deliverables subject to your right of acceptance promptly following delivery and provide written notice no later than the tenth (10 th ) day following delivery stating either: (i) acceptance; or (ii) rejection, describing the grounds for rejection in reasonable detail. If you have not provided a written notice of acceptance or rejection by the 10 th day, the Services or Deliverables will be deemed accepted. If you properly reject the Services or Deliverables, Lumina will use diligent efforts to correct the issues identified in your notice and will resubmit them to you for acceptance. The Services and any associated Deliverables that are re-performed or redelivered shall be subject to your acceptance in accordance with this provision. In the event you fail to accept or reject the Services within 10 days after Lumina’s completion of the applicable Services, or accept or reject re-performed Services within 10 days after Lumina’s completion of the applicable Services, the Services shall be deemed accepted, and you shall have no further right to reject the Services.
5. Your Obligations
5.1 Systems Backup and Other Prerequisites. Prior to Lumina beginning the Services, you must backup all data, systems and other materials or information for the systems, hardware and facilities that Lumina personnel will access as part of the Services. You must also take all prerequisite steps stated in the services description or SOW or otherwise reasonably requested by Lumina, such as: (i) ensuring that all applicable manufacturers labels/serial numbers are in place, accessible, and legible, (ii) obtaining licenses or other appropriate permission for Lumina to access, use and service Third Party Products and Third Party Software, and (iii) if appropriate, complete advance testing of hardware and software that will be used or accessed as part of the Services. You are likewise responsible for ensuring that Lumina is provided with all the access, information, tools and support necessary to enable Lumina to provide the Services as requested in a diligent, prompt and professional manner.
5.2 Onsite Services. If Lumina provides Onsite Services, you must provide a safe and suitable facility for the performance of the Services, including compliance with applicable laws and industry standards for health, safety, and security. You must have at least one representative physically present at the applicable location during the entire time that the Lumina personnel are Onsite. You must also provide the Lumina personnel with desk space, Internet access, and other facilities and services as Lumina may reasonably request to perform the Services, all at no cost to Lumina. Lumina personnel will comply with your safety and security procedures generally applicable to your Onsite vendors, provided those procedures are communicated by you to Lumina.
5.3 Systems Access. You must provide Lumina personnel with access to your information technology systems as Lumina may reasonably request for the performance of the Services, including remote access if requested. Lumina will comply with your security requirements for such access; provided that any such requirements are set forth in an applicable SOW, or if no security requirements are included in the SOW, your reasonable security requirements communicated in advance to Lumina.
5.4 Scheduling and Other Responsibilities. You are responsible for scheduling or, if
scheduled by Lumina Networks, accommodating the dates and times for the performance of Services. You must schedule or otherwise accept commencement of the Services within 180 days of the applicable order. If you do not perform your obligations stated in these Services Terms, Lumina is excused from performing the Services to the extent it is reasonably prevented from performing as a result of the failure, and you are responsible for all resulting increased costs to Lumina in completing the Services. Further, you acknowledge that your failure to perform you obligations may result in Lumina or third parties voiding applicable warranties and support obligations, and agree that Lumina is not responsible or liable to you for any such action.
6. Fees and Cancellation. Fees for Services are stated in the applicable order. Invoices and payment terms for expenses and Services fees are described in the Lumina Terms. Lumina may invoice and require payment of fees in advance unless otherwise provided in
the order. Orders for Services are non-cancellable and fees are non-refundable. If Lumina is not reasonably able to complete any Services prior to the anticipated date for completion of the Services due to your failure to perform your obligations, then in addition to any other remedies Lumina may have, it may cancel the unfulfilled Services on thirty (30) days prior written notice.
5. Rights in Deliverables. The following terms shall apply to Deliverables identified in an order and provided by Lumina as part of Services, including Software and documentation. Subject to your compliance with the Lumina Networks Terms, your payment of applicable fees, and the terms of any applicable Public Licenses, Lumina grants to you a non- exclusive, non-transferable, non-sublicensable license to use the Deliverables solely for internal purposes and solely in accordance with applicable documentation. Any Notwithstanding the foregoing, any Deliverables that are a modification, improvement or derivative work of a Product are licensed to you under the terms of the Software Terms
applicable to such Product. Lumina retains all right, title and interest in and to Deliverables and all intellectual property rights therein and thereto. Each party will sign any necessary documents and provide reasonable assistance to the other party, each at the requesting
party’s expense, for the obtaining, perfecting and enforcing the full benefits, enjoyment, rights and title throughout the world in the Deliverables developed under these Services Terms.
6. Supervision of Lumina Personnel. Lumina has the exclusive right to supervise and instruct its personnel, in particular with respect to work hours and the scope and manner of performance of the services. You have no rights to instruct or supervise Lumina's personnel