Conditions générales de vente

These following provisions (including any order forms, data processing agreements, or other annexes, collectively referred to as the “Agreement”) govern the terms under which Luminovo, Inc., a Delaware corporation (“Luminovo”), provides its software-as-a-service solutions (collectively the “Software”) and related or supplementary services to its contracting party, who is not a consumer within the meaning of applicable consumer protection laws (hereinafter referred to as the “Customer”; Luminovo and the Customer together the “Parties”, and each a “Party”).

The Agreement shall apply exclusively. Any conflicting, deviating or supplementary conditions of the Customer shall only apply if Luminovo has expressly agreed to their application in writing. Mere knowledge of any terms and conditions of the customer and the unconditional provision of services, acceptance of orders or reference to letters by Luminovo does not constitute consent.

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.

Luminovo's activation of the Customer's user accounts agreed in the order form shall be considered to be Luminovo's acceptance of the conclusion of the contract. With the provision of access to the Software, this Agreement shall be deemed concluded.

Luminovo does not guarantee compliance with the International Traffic in Arms Regulations (ITAR). Our products and services are provided "as is," and it is the responsibility of the customer to ensure compliance with ITAR and all applicable export control laws. Luminovo shall not be liable for any violations or penalties arising from the use of our products or services in relation to ITAR-regulated activities.

“Luminovo GmbH” is the parent company of Luminovo, Inc. It is located in Munich, Germany, and registered in the commercial register under HR B 237378.

“Affiliates” means all companies affiliated with the Customer that are listed exhaustively in the order form.

“Business Day” means any day from Monday to Friday, excluding public holidays at Luminovo's registered address in the USA.

“Customer Data” means all data, content and information that the Customer or its Affiliates enter, input, transmit, upload or otherwise make available to Luminovo while processing in the context of the use of the contractual services in the Software.

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

“Supplier Portal” shall mean an optional 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.

“Services” shall mean the entirety of the services provided by Luminovo under this Agreement, in particular the access to the Software via the Internet (Sec. 3) as well as any agreed Support Services (Sec. 5) and or other services (Sec. 6) in accordance with this Agreement. The contractual services to be provided are specified in detail in the Order Form.

“Software“ shall mean every SaaS software solution provided by Luminovo, as stated in the Order Form.

The Software runs on the infrastructure of Luminovo GmbH, the parent company of Luminovo Inc., 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 will use reasonable efforts to inform the Customer in advance (e.g., via email or within the Software) about material modifications that are reasonably expected to materially adversely affect the Customer's use of the Software. For other modifications, advance notice is not required.

Subject to section 7, the Customer may not make the Software accessible to third parties outside of its Affiliates.

Each account is intended exclusively for use by the authorized 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 authorized 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 significantly exceeds its contractually agreed right of use for a period of more than one (1) month and Luminovo has already requested the Customer twice in writing to end the excess within a reasonable period of time, Luminovo is entitled to charge the Customer additional fees for the continued excessive use in accordance with the conditions stated in the order form. Further claims by Luminovo due to an unjustified exceeding of the scope of use remain unaffected.

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

Luminovo does not offer any products for sale either via the Customer Portal 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 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 Customer. The Supplier Portal enables the Supplier to create offers for their products and make them available to either the Customer, or the End Customer, or both.

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.

Luminovo shall not be liable for any obvious errors (“manifest errors”) in an offer or offer confirmation generated by the Software. An obvious error shall be deemed to exist in particular if the end customer or the Customer could have reasonably identified the error upon careful review, and a contract concluded on the basis of such offer would be contestable or unenforceable under the principles of good faith and fair dealing, material mistake, or unconscionability.

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-na@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 the Customer’s request and subject to a separate agreement, Luminovo may assist the Customer with the migration or import of data into the Software (e.g., one-time import services during onboarding, hereinafter referred to as "Implementation and Setup Services"). The Parties may also mutually agree on the provision of additional services in connection with the existing or future use of the Software. Unless expressly agreed otherwise, such additional services shall be provided based on a separate service agreement and shall be subject to additional fees to be paid by the Customer, unless Luminovo has expressly confirmed in writing that such services are provided at no additional charge.

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

Upon request, Luminovo shall provide the Customer with all Customer Data within 5 working days in the form of a downloadable package.

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 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 analyze 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.

In providing the Services, Luminovo Inc. will process Customer Data submitted to the Software by or on behalf of the Customer. The Parties acknowledge and agree that, as between the Parties, the Customer is the data controller (or "business" under applicable US privacy laws like the CCPA/CPRA) and Luminovo Inc. is the data processor (or "service provider" under applicable US privacy laws) with respect to the processing of personal data contained within Customer Data. Customer is responsible for the lawfulness of the processing of Customer Data, including providing necessary notices and obtaining consents as required by applicable data protection laws.

The processing of personal data contained within Customer Data is subject to the terms of the Data Processing Addendum ("DPA"), attached hereto as “Schedule 1" and incorporated into this Agreement by reference. The DPA outlines the specific roles, responsibilities, and processing details as required by applicable data protection laws. In case of any conflict between the main body of this Agreement and the DPA regarding the processing of personal data, the DPA shall prevail.

Customer acknowledges and agrees that Luminovo Inc. may use its Mother Company, the Luminovo GmbH, to process Customer Data in connection with the provision of the Services. Luminovo Inc.'s use of sub-processors will be in accordance with the terms of the DPA, which includes provisions regarding the authorization and management of sub-processors. Luminovo Inc. remains responsible for the acts and omissions of its sub-processors to the same extent Luminovo Inc. would be liable if performing the services of each sub-processor directly under the terms of the DPA.

Luminovo Inc. will implement and maintain appropriate administrative, physical, and technical safeguards (Technical and Organizational Measures or "TOMs") designed to protect the security, confidentiality, and integrity of Customer Data processed by Luminovo Inc. and its sub-processors, as further described in the DPA.

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.

The Customer acknowledges that Luminovo is under no obligation to actively monitor the Customer’s use of the contractual services. However, Luminovo is entitled to review the Customer’s use of the Software to the extent necessary to detect any non-compliant or security-threatening usage (e.g., exceeding agreed usage limits or uploading malware). If, in Luminovo’s reasonable discretion, a use is identified that may constitute a breach of contract or that is alleged as such by a third party, Luminovo shall be entitled to temporarily restrict or suspend such use pending clarification. In such case, Luminovo shall promptly notify the Customer and provide an opportunity to remedy the alleged breach or justify the use. Luminovo will endeavor to select measures proportionate to the nature and severity of the detected usage.

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.

Notwithstanding any other provision of this Agreement, solely in the event that Luminovo provides the Customer with access to the Software free of charge, such as for demonstration, testing, or evaluation purposes, only the mandatory statutory warranty and liability provisions shall apply. In such cases, Luminovo provides the Software “as is,” without any warranties or representations, disclaims all liability to the fullest extent permitted by applicable law, and shall have no obligation to maintain, update, or improve the Software.

During the term of this Agreement, Luminovo warrants that (i) the Software will substantially conform to the agreed specifications, (ii) access to the Software by the Customer in the agreed scope will not infringe any third-party rights, and (iii) the Software will be available in accordance with the availability rate set forth in Section 11.9.

The characteristics of the Software are determined exclusively by this Agreement and the Order Form. Any public statements, including in advertising or by employees of Luminovo, shall not constitute a representation or warranty regarding the characteristics of the Software unless expressly confirmed in writing by Luminovo's management. Luminovo does not provide any guarantees and does not assume any procurement risk unless expressly agreed otherwise in writing between the Parties.

Minor deviations between the Software and the agreed specifications or minor impairments of the Software’s usability shall not constitute defects. This includes minor malfunctions that have only a minimal impact on the Software or do not impair the functionality of the Software, or do so only in a negligible manner.

If a defect is caused by faulty third-party software, including open-source software provided by third parties, or if a defect exists in such third-party software, the Customer may assert Luminovo’s rights against such third party but is not obligated to do so.

If the Customer fails to report a defect within four (4) weeks after first becoming aware of it, providing a reasonably detailed description of the defect along with sufficient information regarding its occurrence and reproducibility, the Customer’s warranty rights with respect to such defect shall be excluded.

Warranty rights shall not apply if the Customer exceeds its agreed scope of use, unless the overuse is subject to and covered by an additional fee payable by the Customer.

Claims based on defects or on the faulty generation of an offer by the Software shall be excluded if the Customer or one of its Affiliates:

violates its contractual or statutory duties of inspection and notification, in particular the obligation to review non-binding offers and the confirmation of an end customer's offer as set forth in Section 4.5;

independently modifies the Software or causes or permits third parties to modify the Software; or

otherwise uses the Software in an improper or inappropriate manner.

Luminovo warrants an availability rate of 99% per availability period (“Availability Rate”). Luminovo shall be entitled to carry out maintenance work (a) with at least two (2) days' prior notice (whereby notification via email or within the Software shall be sufficient) and/or (b) at any time in the case of troubleshooting measures necessary to protect Luminovo's data or the Customer's data.

The Availability Rate shall not be deemed violated if:

access to the Software is possible but the Software does not function correctly without materially impairing its reasonable usability; or

access to the Software is impossible due to outages or other unavailability or disruptions caused by third-party connections, suppliers, service providers, or other circumstances beyond Luminovo’s reasonable control.

Warranty rights in the event of a violation of the Availability Rate are limited to the following; other warranty rights are excluded, without prejudice to the Customer's right to claim damages under this Agreement:

If the violation of the Availability Rate persists for more than two (2) consecutive calendar months, the Customer shall have the right to terminate the Agreement for cause and, in the case of an annual prepayment, to claim a refund of any unused credits. No further right of termination in connection with a violation of the Availability Rate shall exist.

Other warranty rights, particularly with respect to defects in the Software, shall be limited as follows: Luminovo shall use reasonable efforts to remedy defects in the Software within a reasonable time. If Luminovo is unable to remedy a defect within a reasonable time despite two (2) written reminders by the Customer, each setting a reasonable deadline, the Customer shall have the right to terminate this Agreement for cause if the Customer can demonstrate that the defect materially impairs its use of the Software.

Notwithstanding any other provision of this Agreement, solely in the event that Luminovo provides the Customer with access to the Software free of charge, such as for demonstration, testing, or evaluation purposes, only the mandatory statutory warranty and liability provisions shall apply. In such cases, Luminovo provides the Software “as is” without any warranties or representations and disclaims all liability to the fullest extent permitted by applicable law.

Luminovo shall make reasonable efforts, consistent with prevailing industry standards, to maintain the contractual services in a manner that minimizes errors and service interruptions, and shall perform the contractual services professionally and with due care. Access to the contractual services may be temporarily unavailable due to scheduled maintenance work or unscheduled troubleshooting by Luminovo or third-party providers, or due to other causes beyond Luminovo’s reasonable control. However, Luminovo shall make reasonable efforts to notify the Customer in advance of any scheduled service interruptions, either in writing, by email, or within the Software.

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

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 stated as net prices and are exclusive of any applicable taxes, duties, or governmental charges.

In the event of the Customer’s payment default, Luminovo may charge default interest at a rate of nine percent (9%) per annum.

Luminovo shall be entitled to adjust the agreed remuneration annually by a reasonable amount for future payment periods to account for increases in personnel, material, or general operating costs. Luminovo shall notify the Customer of any price adjustment and its effective date at least four (4) weeks in advance in text form. If the price adjustment exceeds five percent (5%) of the previous price, the Customer may object to the adjustment within two (2) weeks of receiving the notice, also in text form. If the Customer objects in due form and time, the contractual relationship shall continue 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 (b) in the event of other justified doubts as to the Customer’s solvency or creditworthiness, Luminovo is entitled to immediately call in all claims arising from the business relationship, without prejudice to other rights of Luminovo.

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.

EXCLUSION OF DAMAGES. EXCEPT FOR ANY BREACH OF SECTION 14 (CONFIDENTIALITY) OR CUSTOMER’S BREACH OF EXPORT CONTROL OBLIGATIONS, IN NO EVENT WILL LUMINOVO, ITS AFFILIATES, OR THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (I) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT; (II) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY RELATING TO THE SERVICES, (III) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (IV) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER LUMINOVO WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.

CAP ON MONETARY LIABILITY. EXCEPT FOR ANY BREACH OF SECTION 14 (CONFIDENTIALITY), IN NO EVENT WILL THE AGGREGATE LIABILITY OF LUMINOVO AND ITS AFFILIATES, INCLUDING THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE LESSER OF: (I) TEN THOUSAND DOLLARS ($10,000), OR (II) THE TOTAL AMOUNT OF FEES PAID TO LUMINOVO UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

EXCEPTIONS. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY SET FORTH IN THIS SECTION 14 SHALL NOT APPLY TO CASES OF WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, OR WHERE LIABILITY CANNOT OTHERWISE BE EXCLUDED OR LIMITED BY APPLICABLE LAW. FURTHERMORE, THE ABOVE LIMITATIONS SHALL NOT APPLY TO DAMAGES RESULTING FROM INJURY TO LIFE, BODY, OR HEALTH CAUSED BY LUMINOVO’S NEGLIGENT BREACH OF DUTY.

TIME BAR. CLAIMS BY THE CUSTOMER FOR DAMAGES SHALL BECOME TIME-BARRED NO LATER THAN TWO (2) YEARS AFTER THE CUSTOMER BECOMES AWARE, OR SHOULD HAVE BECOME AWARE THROUGH REASONABLE DILIGENCE, OF THE CIRCUMSTANCES GIVING RISE TO THE CLAIM.

LUMINOVO SHALL NOT BE LIABLE FOR UNFORSEEABLE OR ATYPICAL DAMAGES OR DAMAGES RESULTING FROM SPECIAL CIRCUMSTANCES UNKNOWN TO LUMINOVO.

The foregoing limitations of liability shall also apply for the benefit of Luminovo’s officers, directors, employees, contractors, and agents.

The Customer shall indemnify, defend, and hold harmless Luminovo from and against any claims by third parties arising from the Customer’s breach of this Agreement (including any agreed usage restrictions) or from any unlawful use of the Software by the Customer or its Affiliates. This includes the reimbursement of reasonable legal defense costs (attorneys’ and court fees) and indemnification for any damages or settlement amounts that Luminovo may become obligated to pay. As a condition of indemnification, Luminovo shall promptly notify the Customer of any third-party claims and, where reasonable, shall give the Customer the opportunity to assume the defense or settlement negotiations at its own expense. Luminovo shall reasonably support the defense undertaken by the Customer and shall not unreasonably withhold its consent to any settlement. Further rights and remedies of Luminovo remain unaffected.

GRATUITOUS SERVICES AND FREE ACCESS. IF LUMINOVO PROVIDES SERVICES OR ACCESS TO THE SOFTWARE GRATUITOUSLY (E.G., FOR TESTING, DEMONSTRATION, OR BETA VERSIONS), SUCH SERVICES ARE PROVIDED "AS IS" AND WITHOUT ANY WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LUMINOVO DISCLAIMS ALL LIABILITY ARISING FROM OR IN CONNECTION WITH SUCH FREE ACCESS OR GRATUITOUS SERVICES, EXCEPT IN CASES OF WILLFUL MISCONDUCT.

IF LUMINOVO GRANTS THE CUSTOMER FREE ACCESS TO THE SOFTWARE (E.G. TEST OR BETA VERSIONS) LUMINOVO IS NOT LIABLE FOR ANY DAMAGES.

The Parties agree to keep all Confidential Information of the other Party strictly confidential. “Confidential Information” means all information and documents of a Party (including its Affiliates) that are marked as confidential or should reasonably be understood to be confidential by their nature. This includes, without limitation, business and trade secrets, technical information, customer data, pricing information, financial information, development plans, strategies, business partners, and all other non-public information disclosed in connection with this Agreement before or during its term. The contents of this Agreement and the existence of the contractual relationship itself are also deemed Confidential Information of each Party.

The confidentiality obligations shall not apply to information that the receiving Party can demonstrate:

was already known or accessible to it without breach of a confidentiality obligation prior to disclosure by the disclosing Party;

was independently developed by the receiving Party without reliance on Confidential Information of the disclosing Party;

has become publicly known without breach of this Agreement; or

must be disclosed pursuant to a legal requirement or enforceable order of a court or governmental authority (provided that the receiving Party, where legally permissible, notifies the disclosing Party in advance to allow it to seek protective measures).

Each Party may use the Confidential Information of the other Party solely for the purposes of fulfilling this Agreement and shall protect such Confidential Information with at least the same degree of care it uses to protect its own similarly important confidential information, but in no event less than reasonable care. Confidential Information may only be disclosed to employees, agents, or Affiliates on a strict “need-to-know” basis and only if such persons are subject to confidentiality obligations at least as protective as those contained herein (whether by law, employment agreement, or separate confidentiality agreement).

Upon written request by the disclosing Party, the receiving Party shall promptly return or delete all received Confidential Information and any copies thereof, unless retention is required by applicable law or the Confidential Information is retained in routine backup systems (in which case the confidentiality obligations shall continue to apply). The receiving Party shall have no right to retain Confidential Information except as expressly provided herein.

The confidentiality obligations under this Section 15 shall commence upon first disclosure or knowledge of the Confidential Information and shall survive the termination of this Agreement for a period of five (5) years. Any statutory or otherwise legally required longer confidentiality obligations (such as for trade secrets) shall remain unaffected and continue indefinitely.

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.

Luminovo reserves the right to amend or supplement this Agreement at any time, provided that such amendments or supplements do not materially adversely affect the Customer. Any amendments or supplements will be communicated to the Customer in text form. The amendments shall be deemed accepted if the Customer does not object in writing within thirty (30) days after receipt of the notice. The notice will expressly inform the Customer of this consequence.

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, its interpretation, and any non-contractual obligations or claims arising out of or in connection with it shall be governed exclusively by the internal laws of the State of Delaware, USA, without giving effect to any conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

The place of performance shall be Wilmington, Delaware, USA. In the event of any disputes arising out of or in connection with the contractual relationship between the Parties, the exclusive place of jurisdiction shall be the state or federal courts located in the State of Delaware, USA. Nothing herein shall limit Luminovo’s right to bring actions against the Customer or its Affiliates at their general place of jurisdiction.