Allgemeine Geschäfts­bedingungen

The following provisions (including any schedules and Order Forms, hereinafter referred to as „Agreement“,) set forth the general conditions pursuant to which Luminovo GmbH („Luminovo“), a Munich-based software development company, provides to its contractual partner, which is not a consumer („Customer“, together with Luminovo the „Parties“, each a „Party“) access to its SaaS software (e.g. Risk Management (SCRM), Supplier Relationship Management (SRM), Sourcing, Manufacturing) and performs the associated or supplementary services, including benchmarking.

The Agreement shall apply exclusively. Any terms and conditions of the Client that conflict with, deviate from or supplement this contract shall only be binding if Luminovo has expressly agreed to their application in writing. Luminovo shall not be deemed to have given its consent if, for example, it accepts orders, provides services or refers directly or indirectly to letters etc. containing the terms and conditions of the Customer or of a third party in full knowledge of the Customer's terms and conditions.

The Customer is responsible for any actions or omissions by its Affiliates. Only the Customer may claim any rights of Affiliates under this Agreement. The Customer ensures that all its Affiliates which use Services shall comply with the provisions of this Agreement as if they were a party to this Agreement.

An activation of the user accounts, as agreed in the agreement, of the Customer by Luminovo shall be considered an acceptance of the conclusion of this Agreement.

„Affiliates“ are those companies affiliated with the respective Party which are listed exhaustively in the Order Form.

„BGB“ shall mean the German Civil Code.

„Customer Data“ shall mean data, content, and information that the Customer or its Affiliated Companies upload, transmit, or otherwise make available to Luminovo for processing within the scope of using the contractual services. This data does not include personal data.

"Customer Portal" shall mean a feature of the Software that enables the Customer to offer products to its End Customers for sale.

“Supplier portal” shall mean a feature of the software that enables the Supplier to offer products to the Customer.

"End Customer" shall mean a contractual partner of the Customer who uses the Customer Portal to purchase products from the Customer.

“Supplier” means a contractual partner of the Customer who uses the Supplier Portal to sell products to the Customer.

„Order Form“ shall mean any written agreement between the Parties on Services and applicable fees.

„OEMs“, which is an optional feature, shall mean original equipment manufacturers.

„Services“ shall mean all services provided by Luminovo to Customer or its Affiliates under this Agreement, in particular access via the internet to the Software (section 3), Support Services (section 5) and other services (section 6); the Services to be provided are further stated in the Order Form.

„Software“ shall mean all SaaS software solutions provided by Luminovo, as stated in the Order Form.

The Software runs on Luminovo's or its subcontractors’ infrastructure and is provided as a software-as-a-service solution via the internet.

The Software is optimized for the latest version of Microsoft Edge, Google Chrome and Mozilla Firefox web browsers. The Customer agrees to use these browsers if the Customer experiences malfunctions with other browsers.

Luminovo may modify the Software at any time, for example by adding new features or modifying existing features, as long as such modifications of the Software are reasonable for the Customer. Luminovo shall notify the Customer of any material modifications to the Software duly in advance.

Subject to section 7, the Customer may not make the Software accessible to third parties outside of its Affiliates. This does not apply for the Supplier Relationship Management.

Each account is intended exclusively for use by the authorised natural person whose email address is linked to the account. The Customer undertakes to ensure that the user accounts provided via the software are not shared by several persons. Merging or combining user accounts with the aim of reducing the number of active users or circumventing the contractually agreed account restriction is expressly prohibited. Luminovo is authorised to prevent violations of this provision through appropriate technical measures, to block or deactivate the affected account or to charge fees for exceeding the right of use according to section 3.10.

Luminovo will apply the technical and organizational measures stipulated in Schedule 1 with regard to the safety of the Software and the Customer Data stored in the Software.

The Software enables Customer to conduct certain work steps based on files („Bills of Material“) uploaded to the software. In order for these work steps to be successful, those Bills of Material need to comply with the state of the art and industry-typical requirements and formats. The Software does not check whether those Bills of Material meet those requirements. The customer is obliged to check the assignment and extraction suggestions made by the Software for the Bills of Material for completeness and correctness.

The Software displays prices and other information for individual electronic components. Such information is fetched via interfaces from third parties, like third-party suppliers. Those third-party suppliers are chosen by Luminovo at Luminovo's sole and free discretion. In particular, Luminovo has the right to remove individual third-party suppliers or to replace them at any time and without giving a reason. The Customer is aware that Luminovo does not check or otherwise verify the information fetched via interfaces, but Luminovo's services are limited to fetching such information and to display them, using utmost care, under the assumption that the service of the third-party suppliers are technically available. Luminovo therefore does not give any warranty of any kind regarding the quality of such information.

The Customer can instruct Luminovo without any formal requirements to share Customer Data with a third party, such as a third-party supplier.

If the Customer exceeds his contractually agreed right of use for a period of more than one month and has already been requested twice by Luminovo to terminate the excess usage, Luminovo is entitled to charge the customer additional fees for the continued use, as defined in the Order Form. Luminovo's right to assert further claims resulting from unauthorized use beyond the agreed scope remains unaffected.

If agreed between the Parties, the Customer may use the Customer Portal, Supplier Relationship Management or the Supplier Portal and invite its End Customers to use the respective Portal.

Luminovo does not offer any products for sale either via the Customer Portal, Supplier Relationship Management or via the Supplier Portal and is not a contractual partner of any agreements concluded between the Customer and its End Customers. The use of the Customer Portal or the Supplier Portal shall not establish any contractual relationship between Luminovo and the End Customer.

The Customer shall be responsible for the End Customer's or Supplier’s use of the Customer Portal, Supplier Relationship Management or of the Supplier Portal and shall ensure that the End Customer complies with the provisions of this Agreement by entering into an agreement with the End Customer which contains the same or stricter provisions compared to those applicable to the relationship between Luminovo and the Customer. The Customer will indemnify Luminovo against potential claims of End Customers.

The Customer Portal enables the Customer to create offers for their products and make them available to the End Customers. These publications do not constitute a binding offer to conclude an agreement, but merely an invitation to submit an offer to an unspecified group of persons (inivtatio ad offerendum; hereinafter referred to as “non-binding-offer”). The Supplier Portal enables the Supplier to create offers for their products and make them available to either the Customer, or the End Customers, or both. An agreement shall only be concluded if the customer, resp. the supplier accepts the End customer's offer to conclude an agreement. Acceptance shall only take place by an express confirmation of the Customer, resp. Supplier in text form (e.g. email).

The Customer, resp. the Supplier, shall review the Non-Binding Offers created by the use of the Software with due diligence before their publication on the Customer Portal or on the Supplier Portal and again before acceptance of an End Customer's or Customer’s offer to conclude an agreement.

In particular, Luminovo shall not be liable for obvious errors in a Non-Binding Offer or an offer confirmation created by the software. An obvious error exists, for example, if the (End-) Customer could have noticed the incorrect content in the Non-Binding Offer and if the agreement concluded on the basis of this Non-Binding Offer would be subject to a contestation (Anfechtung) (§§ 119 ff. BGB) or in good faith (§ 242 BGB) abusive.

The Supplier Relationship Management (SRM) supports managing supplier data, qualifying suppliers, onboarding them, and evaluating suppliers. This is done by sending a link to the portal to the supplier. Through this, the supplier can provide completed forms and documents to the customer. The data exchanged therein is only visible within the tenant and is not viewable by any other customer.

Without prejudice to any rights of the Customer due to defects and due to the violation of the Availability Rate, Luminovo supports the Customer in the use of the Software and the solution of problems arising from the use of the Software by providing additional assistance ("Support Services"). Support Services are, if applicable, further described in an Order Form.

Services at the Customer’s premises or otherwise on site will be expressly agreed between the Parties, in which case the Customer will pay Luminovo reasonable expenses.

Luminovo provides Support Services (s. def. 5.1) upon reception of a support request at support@luminovo.com or from within the Software. If Luminovo provides Support Services free of charge and without reimbursement of expenses, Luminovo shall not be obligated to achieve a definitive resolution or any other specific outcome in the processing of the support request. If Luminovo provides Support Services against expenses according to section 5.2, Luminovo shall owe the success of the Support Service to be defined by the Parties prior to the provision of the Support Service.

Upon request by the Customer and after mutual agreement, Luminovo will undertake to support the Customer in migrating their data to the Software (“Implementation and Setup Services”). Luminovo and the Customer may also agree on other services in connection with existing or future Software. Those services shall be subject to a fee if agreed between the Parties.

Luminovo will provide the Customer with online documentation ("Documentation") in English and German free of charge.

At the customer's request or upon termination of the contract, Luminovo will ensure the uninterrupted availability of the service for five (5) working days to facilitate the transfer of all customer-generated data, metadata, and other digital assets. These assets will be provided for download in a common, machine-readable standard format, complete with open interface descriptions.

If agreed between the Parties and subject to an additional fee, Luminovo will provide training to the Customer and its Affiliates on how to use the Software.

The Customer acknowledges and agrees that the Software has components based on machine learning (artificial intelligence) or other data analytics methods which means that Luminovo may use any data non-personal provided to it, in particular the Customer Data and data derived therefrom, for training and other analytics purposes and to improve the Software's performance or to otherwise improve or enhance the Software („Analytics“). Luminovo shall implement reasonable and state-of-the-art technical measures to ensure that the knowledge derived from the Analytics, in particular from machine learning models, do not allow any conclusions to be drawn about the Customer.

Furthermore, Luminovo may, in an anonymized and not identifiable form, aggregate Customer Data in order to develop new features or make recommendations to customers or otherwise exploit such aggregated data at its sole and free discretion.

The Customer grants – and ensures that its Affiliates also grant – to Luminovo all necessary rights for Luminovo to provide the Services and conduct Analytics, in particular all necessary usage and modification rights to analyse and otherwise process the Customer Data and data derived therefrom, in each case limited to the scope of this Agreement. In case of section 3.9, the Customer grants to Luminovo the right to forward, transmit, share and otherwise make available the Customer Data to the respective third parties, and grants to these third parties the right to use the respective Customer Data for the purposes for which they have been made available to these third parties; the Customer acknowledges that Luminovo has no control over and is not responsible for the data made available to third parties in case of section 3.9. In case the data belong to any third parties (e.g., clients or suppliers), the Customer ensures that those third parties grant the respective rights necessary according to this section.

Luminovo is entitled to name the Customer as a reference customer on its website and in its marketing documents and to use the Customer's logo for this purpose, subject to revocation by the Customer at any time.

The Customer shall provide Luminovo with reasonable support in the provision of Services.

The Customer will not share the access data to access the Software with third parties and will use utmost care to securely store such access data. The Customer is aware that Luminovo cannot be held liable for any access of a third party related to the Customer having lost the access data.

The Customer will not, directly or indirectly, in each case unless permitted by applicable laws or expressly agreed between the Parties in writing, (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services, Software, or data related to the Services, (ii) modify, translate, or create derivative works based on the Services or the Software, (iii) use the Services or the Software for the benefit of a third party, or (iv) remove any proprietary notices or labels.

The Customer represents, covenants, and warrants that the Customer will use the Services only in compliance with applicable laws and will, in particular, not upload to the Software, as Customer Data, any data that violate any applicable laws or the rights of third parties. The Customer hereby agrees to indemnify and hold harmless Luminovo against any damages, losses, liabilities, settlements and expenses (including without limitation reasonable costs, expenses and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s and its Affiliates’ use of the Services.

Although Luminovo has no obligation to monitor the Customer’s use of the Services, Luminovo may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the Agreement.

The Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, hardware, servers, software, operating systems, networks, web browsers and the like (collectively, the „System Environment“). The Customer shall also be responsible for maintaining the security of the System Environment at any time.

All Services under this Agreement, except for the provision of access to the Software according to section 3, are services according to §§ 611 ff. BGB, meaning that Luminovo is not responsible for a specific success according to §§ 631 ff. BGB and to that extent, no warranty of any kind exists.

During the term of the Agreement, Luminovo warrants (“gewährleistet”) that the Software substantially has the agreed quality, that access to the Software by the Customer in the contractually agreed scope does not infringe any third-party rights and that the Software is available during the Availability Rate as described in section 10.9.

The quality of the Software is determined by the Agreement only. Representations of the Software in public statements, in particular in advertising, or statements by Luminovo employees do not involve indications as to quality, unless explicitly confirmed in writing by the management of Luminovo. Luminovo does not give any guarantee of any kind nor does it take any procurement risk, unless expressly otherwise agreed in writing between the Parties.

Minor discrepancies between the Software and the agreed quality or any minor impairment of its usefulness do not represent defects. This includes minor malfunctions which only have a minimal effect on the Software or do not or only negligibly disturb the functionality of the Software.

If a defect is caused by or is included in a defective third-party software, including third-party open source software, the Customer may assert Luminovo's rights against such third party without being obligated to do so.

The Customer's warranty rights shall be considered waived if the Customer does not report a defect within two weeks upon first detection of the defect by the Customer, together with information on its appearance and information on the possibility to reproduce the defect.

The warranty does not apply in case the Customer exceeds their right of use, unless the excess usage is covered by an additional fee.

Claims due to defects and incorrect preparation of an offer by the Software are excluded if the Customer or its Affiliates:

Luminovo warrants an availability of the Software of 99 % („Availability Rate“), excluding periods of maintenance work (as described below). Luminovo shall be entitled to conduct maintenance work in the aforementioned sense a) when scheduled at least two days in advance (email notification or alert in the Software shall be sufficient) and/or b) at any time in case of emergency maintenance work which is necessary to protect Luminovo's or Customer's data.

The Availability Rate shall not be considered breached in case

The warranty rights in case of a breach of the Availability Rate are limited to the following and other warranty rights are excluded, not limiting the Customer’s right to claim damages under this Agreement:

If a breach of the Availability Rate lasts for more than 2 consecutive calendar months, the Customer is entitled to terminate the Agreement without notice and with the right to get all unused credits reimbursed in case of a yearly usage fee paid upfront. Otherwise, the Customer does not have a termination right related to a breach of the Availability Rate.

Luminovo will remedy defects in the software within a reasonable time, provided that the remedy of the defect is possible for Luminovo and not unreasonable considering the effort involved (§ 275 para. 2 BGB).

Irrespective of anything else stated in this Agreement, in case Luminovo provides the access to the Software free of charge, for example for demo or testing purposes, only the statutory warranty and liability provisions stipulated in §§ 599, 600 BGB shall apply and shall take precedence. Nothing in the Agreement shall extend such statutory liability and warranty provisions in that case. In particular, in that case, Luminovo does not give any warranty of any kind.

Luminovo shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Luminovo or by third-party providers, or because of other causes beyond Luminovo’s reasonable control, but Luminovo shall use reasonable efforts to provide advance notice in writing or by email or by notice in the Software of any scheduled service disruption.

The Agreement shall have the term as agreed upon in the Order Form. It may be terminated by either Party for convenience with the notice period agreed upon in the Order Form.

The Agreement may only be terminated as a whole, which excludes any partial termination.

If the Customer exceeds the agreed scope of use or otherwise breaches the Agreement, and continues doing so after one written reminder by Luminovo to the Customer, Luminovo has the right to terminate the agreement for cause without any notice period. In this case, Luminovo has the right to claim all of the fees for any remaining minimum subscription period (if applicable).

The right to terminate for cause remains unaffected for the Parties.

Luminovo will delete all Customer Data within 30 days after the Agreement ends, or earlier upon written request by the Customer. Section 7 remains unaffected.

Luminovo shall invoice the compensation for the respective Services to the Customer as agreed between the Parties.

All prices are net without applicable value-added tax.

In the case of default in payment by the Customer, Luminovo may charge interest at a rate of 9 percentage points per annum above the applicable base interest rate, unless Luminovo shows greater damage. Luminovo’s further rights shall remain unaffected thereby.

Luminovo shall be entitled to adjust the agreed remuneration annually in an appropriate amount for future payment periods to compensate for increases in personnel and other costs. Luminovo shall notify the Customer of these price adjustments and the effective date of the price adjustment in text form no later than four (4) weeks before they take effect. If the price increases amounts more than 5% of the previous price, the Customer may object to this price increase in written form requirements within a period of two (2) weeks from receipt of the notification. If the Customer objects to a change in due form and time, the contractual relationship shall be continued under the previous conditions.

While the Customer is in payment default, Luminovo’s obligation to provide Services shall be suspended unless this would be unreasonable, for instance if the outstanding amount is relatively small.

(a) In the case of default in payment and expiration of a reasonable additional grace period as well as

The Customer is (a) only entitled to set-off if its counterclaim is (aa) undisputed or (bb) legally established or (cc) is reciprocal (synallagmatic) to the claim against which the Customer sets off; (b) only entitled to exercise a right of retention if and to the extent that its counterclaim is either (aa) undisputed, (bb) legally established or (cc) based on the same contractual relationship as the claim the Customer exercises a right of retention against.

In the event of damage caused by slight negligence, each party shall only be liable in the event of a breach of a contractual obligation, the fulfilment of which characterises the Agreement and on which the contractual partner may rely, and limited to the foreseeable damage typical of the Agreement. This does not apply to damages resulting from injury to life, limb or health or in cases of mandatory liability, in particular liability for cases in which a procurement risk or a guarantee for damages has been assumed, in the case of liability under the Product Liability Act, liability under the GDPR, fraudulent concealment of a defect or in the event of default.

Luminovo shall only be liable for indirect and consequential damages, in particular lost profit, lost production, interruption of operations, contractual claims by third parties, loss of use and financing expenses, in accordance with section 13.1 and subject to the liability cap set out in section 13.3. This shall not apply to the cases referred to in the second sentence of section 13.1.

The liability for simple negligence according to section 13.1 shall be further limited to the higher of the following amounts:

Damage compensation claims against Luminovo, its employees or agents fundamentally become time-barred two years after they arise. This shall not apply to damage compensation claims which fall under the second half of section 13.1, sentence 1.

Luminovo cannot be held strictly liable (verschuldensunabhängige Haftung) for a defect which exists when the Agreement is entered into.

The provisions of this section also apply for the benefit of Luminovo’s employees, agents and subcontractors to whom duties were transferred.

To the extent a third party asserts claims against Luminovo due to violation of the Agreement by the Customer or its Affiliates, the Customer will indemnify Luminovo and hold it harmless from any and all damages, expenses and costs, including reasonable legal defense costs.

Irrespective of anything else stated in this Agreement, in case Luminovo provides access to the Software free of charge, section 10.14 applies and Luminovo will in particular not be liable for simple negligence.

The Parties shall keep all sensitive information of the respective other Party and its Affiliates received in connection with the Agreement, also precontractually, in oral, written or any other form („Confidential Information“) confidential and use it only for the agreed purpose.

The confidentiality obligations under this Agreement include, in particular, the following Confidential Information: pricing information, login data and passwords, the Customer Data, as well as all other information which have been or are designated as confidential by a Party in oral or written form.

The Parties are obliged to take all necessary and appropriate measures to avoid the disclosure of Confidential Information vis-à-vis third parties and/or the perusal of Confidential Information by third parties. It is only permitted to disclose Confidential Information to such staff, employees and external advisors of the Parties who are directly concerned with the execution of the Agreement („need to know“). In case they are not bound by law to a professional obligation to maintain confidentiality, they have to be obliged in written form to fulfil the confidentiality obligation pursuant to this Agreement – as far as legally permitted also for the time after their resignation. The disclosure of Confidential Information is further permitted, if and to the extent the Party burdened with the confidentiality obligation („Burdened Party“) is bound by law or administrative order to disclose such Confidential Information, has informed the other Party in text form about the planned disclosure and has taken measures provided for by law or appropriate to keep the extent of the disclosure to a minimum. Otherwise any disclosure is only permitted with the prior consent in text form of the other Party, or, in case of section 3.9, with the instruction of the Customer.

The confidentiality obligations pursuant to this Agreement are not applicable, if and to the extent the otherwise Burdened Party proves that the information in question:

Upon termination of this Agreement and request of the other Party, the Burdened Party will return to the other Party or delete without delay and at its own costs all Confidential Information (including all storage mediums and copies made by the Burdened Party or third parties) to the extent this is feasible with reasonable efforts and confirm this to the other Party. The above does not apply if and to the extent the Burdened Party is obliged by law to keep the Confidential Information. Section 7 shall remain unaffected.

The confidentiality obligations pursuant to this Agreement shall continue for five years after this Agreement ends.

The use of simple email shall suffice to fulfil the written form requirements within the meaning of the Agreement, unless otherwise stipulated.

Deletions, changes or amendments to the Agreement must be executed in writing in order to be valid; this also applies to any amendment to this written form clause.

All notices and other communications in connection with this Agreement shall be made in written form, unless otherwise stipulated. Termination notices must be signed and delivered via postal mail or as a scan via email.

Luminovo reserves the right to amend or supplement the Agreement at any time, provided that the Customer is not disadvantaged in good faith by such amendment or supplement. Amendments or supplements to the Agreement will be announced by notification in text form. They are deemed approved if the Customer does not object in writing within one month upon such notification being submitted by Luminovo. Luminovo shall specifically point out this consequence in the notification.

Should individual provisions of the Agreement be or become invalid or unfeasible in whole or in part, the validity of the remaining provisions of this Agreement shall not be affected thereby. The Parties will promptly replace the invalid or unfeasible provision with one that most closely approximates the legal and economic purpose of the invalid or unfeasible provision. Until that time such a provision shall be considered to be agreed. The preceding applies accordingly for closing any lacunae in the Agreement.

This Agreement and its interpretation and any non-contractual obligations in connection with it are subject to German substantive laws. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

Place of performance is Munich, Germany. In case of any disputes arising from or in connection with contractual relationships between the Parties, the courts of Munich, Germany, shall have exclusive jurisdiction. The foregoing shall not limit the right of Luminovo to initiative proceedings against a Customer or its Affiliates at its place of jurisdiction.

The German version of this Agreement shall take precedence over the English version.