General Terms and Conditions

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Contents

1. Scope and Application
2. Definitions
3. Software
4. Support Services
5. Other Services
6. Rights in Data
7. Rights in Software
8. Obligations of Customer
9. Quality and Warranty
10. Term and Termination
11. Compensation
12. Liability
13. Confidentiality
14. Data Protection
15. Miscellaneous
Schedule 1: Order Data Processing

1. Scope of Application

1.1
The following provisions (hereinafter referred to as „Agreement“, including any schedules and Order Forms) 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 LumiQuote and related services.

1.2
Solely the Agreement shall apply. Any terms and conditions of the Customer that conflict with, differ from or supplement this Agreement will not become binding unless Luminovo has expressly consented in writing to their application. For example, consent shall not be deemed given even if, in the knowledge of the Customer's terms and conditions, Luminovo accepts – without any reservations – orders, performs services or directly or indirectly refers to letters, etc., which contain the Customer's or third-party terms and conditions.

1.3
Customer is responsible for any actions or omissions by its Affiliates. Only Customer may claim any rights of Affiliates under this Agreement. 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.

1.4
An activation of the paid user accounts of Customer by Luminovo shall be considered an offer or, as the case may be, an acceptance of the conclusion of this Agreement.

2. Definitions

The following terms shall have the following meaning. Other terms defined in the Agreement shall have the meaning assigned to them there.

2.1
Affiliates“ are those companies affiliated with the respective Party which are listed exhaustively in the Order Form.

2.2
BGB“ shall mean the German Civil Code.

2.3
Business Day“ shall mean any day from Monday to Fridays, except for legal holidays in Munich.

2.4
Customer Data“ shall mean any data uploaded by the Customer or its Affiliates into the Software.

2.5
Order Form“ shall mean any written agreement between the Parties on Services and applicable fees.

2.6
OEMs“ shall mean original equipment manufacturers.

2.7
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 4) and other services (section 5).

2.8
Software“ shall mean LumiQuote, a SaaS software solution provided by Luminovo to support Customer or its Affiliates in responding to Requests for Quotations („RfQs“) of OEMs, including managing and processing the OEM RfQ documents, estimating material, production and other costs, creating and exchanging final quotations, and processing of purchase orders.

3. Software

3.1
The Software runs on Luminovo's or its subcontractors’ infastructure and is provided as a software-as-a-service solution via the internet.

3.2
The Software has been developed considering state-of-the art web development techniques, which is why it should run on the latest versions of any popular web browser. The Software is, however, optimized for the latest version of the web browser Mozilla Firefox, which means that Customer agrees to use this browser in case Customer experiences malfunctions with other browsers.

3.3
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.

3.4
Subject to section 7, the Customer may not make the Software accessible to third parties outside of its Affiliates.

3.5
Customer and its Affiliates can create an unlimited number of user accounts in the software, each consisting of an e-mail address and a password. User accounts can be assigned to specific roles in the Software, with each role having different access rights.

3.6
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.

3.7
The Software enables Customer to conduct certain calculations based on files („Bills of Material“) uploaded to the software. For those calculations to work, those Bills of Material need to comply with state-of-art and industry-typical requirements and formats. The Software does not check whether those Bills of Material meet those requirements.

3.8
The Software displays prices and other information for individual electronic components. Such information is fetched via interfaces from third parties, like third-party suppliers. Fetching this information requires that the Customer accepts the contractual terms of these third parties, which Luminovo provides to the Customer at the beginning. Customer is aware that Luminovo does not check or otherwise verify the information fetched via interfaces, but only displays them.

4. Support Services

4.1
Luminovo supports Customer in using the Software and in solving issues arising from such use of the Software („Support Services“).

4.2
Services at the Customer’s premises or otherwise on site will be expressly agreed between the Parties, in which case Customer will pay Luminovo reasonable expenses.

4.3
Luminovo provides Support Services upon reception of a support request at [email protected] or from within the Software. Luminovo does not assume any responsibility for the ultimate success of a problem correction or other support request.

5. Other Services

5.1
Upon request by Customer and after mutual agreement, Luminovo will undertake to support Customer in migrating their data to the Software (“Implementation and Setup Services”). Those services shall be subject to a fee if agreed between the Parties.

5.2
Luminovo will provide the Customer with an online documentation in English once available („Documentation“).

5.3
Upon request, Luminovo shall provide Customer with all Customer Data within 5 working days in form of a downloadable package.

5.4
If agreed between the Parties and subject to an additional fee, Luminovo will provide training to Customer and its Affiliates on how to use the Software.  

6. Rights in Data

6.1
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 cannot be extracted, in particular from machine learning models.

6.2
Customer may object to the data processing described in section 6.1 at any time by e-mail to [email protected] or in the Software. By objecting, Customer accepts that without Analytics, the Software is available only with a limited range of functions.

6.3
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.

6.4
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 the data belong to third parties (e.g., clients or suppliers), Customer ensures that those third parties grant the respective right.

7. Rights in Software

The Software is not delivered to Customer and its Affiliates and no rights are granted to receive or use such Software, be it as source code or object code. Luminovo grants to Customer and its Affiliates a non-transferrable, non-sublicensable right to access the Software via internet, limited in time to the term of the Agreement and limited in place to the registered offices and in manner to the internal business purposes of Customer and its Affiliates. For the avoidance of doubt, third parties do not have the right to use the Software unless otherwise agreed between the Parties.

8. Obligations of Customer

8.1
Customer shall provide Luminovo with reasonable support in the provision of Services.

8.2
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. Customer is aware that Luminovo cannot be held liable for any access of a third party related to Customer having lost the access data.

8.3
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.

8.4
Customer represents, covenants, and warrants that 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. 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 and its Affiliates’ use of the Services.

8.5
Although Luminovo has no obligation to monitor 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.

8.6
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“). Customer shall also be responsible for maintaining the security of the System Environment at any time.

9. Quality and Warranty

9.1
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.

9.2
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 9.9.

9.3
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.

9.4
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.

9.5
If a defect is caused by or is included in a defective third-party software, including third-party open source software, Customer’s warranty rights shall be limited to Luminovo assigning its warranty rights – if any – against that third party to the Customer. This shall not apply in case the defect is caused by Luminovo's improper handling of the third-party software for which Luminovo is responsible.

9.6
Customer's warranty rights shall be considered waived if Customer does not report a defect within two weeks upon first detection of the defect by Customer, together with information on its appearance and information on the possibility to reproduce the defect.

9.7
The warranty does not apply in case Customer exceeds their right of use.

9.8
Claims due to defects are precluded if Customer or its Affiliates:
a) violates its statutory examination and reporting obligations;
b) makes changes to the Software itself or causes or permits changes to be made by third parties; or
c) otherwise uses the Software in an improper or inappropriate manner.

9.9
Luminovo warrants an availability of the Software of 97 % („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 (e-mail 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.  

9.10
The Availability Rate shall not be considered breached in case the Software
a) is accessible, but not functioning correctly or  
b) cannot be accessed due to downtimes or other unavailabilities or disturbances resulting from third-party connections, suppliers, utilities or otherwise outside of the control of Luminovo.

9.11
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 Customer’s right to claim damages under this Agreement:


9.11.1
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.


9.12
Other warranty rights, in particular defects in the Software, are limited to the following: Luminovo will endeavor to resolve any material defects in the Software within reasonable time. Should Luminovo not be able to resolve a material defect in the Software within reasonable time and despite two written reminders of the Customer, each giving a reasonable notice period, the Customer has the right to terminate this Agreement for cause if it can demonstrate that the defect materially impacts its use of the Software.

9.13
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.

9.14
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 e-mail or by notice in the Software of any scheduled service disruption.

10. Term and Termination

10.1
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 to the end of every month.

10.2
The Agreement may only be terminated as a whole, which excludes any partial termination.

10.3
If Customer exceeds the agreed scope of use or otherwise breaches the Agreement, and continues doing so after one written reminder by Luminovo to 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).

10.4
The right to terminate for cause remains unaffected for the Parties.

10.5
Luminovo will delete all Customer Data 30 days after the Agreement ends, or earlier upon written request by the Customer. Section 6 remains unaffected.

11. Compensation

11.1
Luminovo shall invoice to Customer the compensation for the respective Services as agreed between the Parties.

11.2
All prices are net without applicable value-added tax.

11.3
The compensation is due and payable within 14 days after the date shown on the invoice.

11.4
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.

11.5
While the Customer is in default with payment, Luminovo’s obligation to provide Services shall be suspended unless this would be unreasonable, for instance if the outstanding amount is relatively small.

11.6
(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.

11.7
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 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 Customer exercises a right of retention against.

12. Liability

12.1
In any case of simple negligence Luminovo is liable for the breach of a contractual obligation which gives distinction to the Agreement and on which Customer may rely on (essential obligation) and limited to the typical and foreseeable damage only; this exception does not apply to culpable damage to life, body or health nor in cases of mandatory liability including without limitation liability for cases in which a procurement risk or a guarantee for damages has been assumed, liability under the Product Liability Act, liability under the GDPR, fraudulent concealment of a defect or in the event of default.

12.2
In particular, Luminovo shall not be liable for lost profit, lost production, interruption of operations, contractual claims by third parties, loss of use, financing expenses or other financial loss and consequential damages. ​​

12.3
​The liability for simple negligence according to section ‎12.1 shall be further limited to the applicable remuneration paid and payable for the respective calendar year in which the damaging event takes place (the cap applies to all damages together which occur in this year or which are based on this damaging event).

12.4
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 ‎12.1, sentence 1.

12.5
Luminovo cannot be held strictly liable (verschuldensunabhängige Haftung) for a defect which exists when the Agreement is entered into.

12.6
The provisions of this section also apply for the benefit of Luminovo’s employees, agents and subcontractors to whom duties were transferred.

12.7
To the extent a third party asserts claims against Luminovo due to violation of the Agreement by Customer or its Affiliates, Customer will indemnify Luminovo and hold it harmless from any and all damages, expenses and costs, including reasonable legal defense costs.

12.8
Irrespective of anything else stated in this Agreement, in case Luminovo provides access to the Software free of charge, section 9.13 applies and Luminovo will in particular not be liable for simple negligence.  

13. Confidentiality

13.1
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.

13.2
The confidentiality obligations under this Agreement include, in particular, the following Confidential Information: pricing information, login data and passwords, Customer Data, as well as all other information which have been or are designated as confidential by a Party in oral or written form.

13.3
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.

13.4
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:
a) has been publicly known and made generally available in the public domain prior to the time it came to its knowledge or becomes publicly known at a later point in time and without violation of the obligations resulting from this Agreement,
b) has already been known to the Burdened Party without violation of any confidentiality obligations,
c) has been independently developed by the Burdened Party without use or reference to the Confidential Information,
d) has been made available to the Burdened Party by a third party who has legally obtained such Confidential Information and was entitled to disclose it, or
e) relate to the Parties' or their Affiliates' identities or the material subject matter of the Agreement.

13.5
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 6 shall remain unaffected.

13.6
The confidentiality obligations pursuant to this Agreement shall continue for five years after this Agreement ends.

14. Data Protection

The data processing agreement attached hereto as Schedule 1 shall apply to all processing of personal data by Luminovo on behalf of the Customer and shall prevail over the main part of this Agreement.

15. Miscellaneous

15.1
The use of ​​simple email shall suffice to fulfil the written form requirements within the meaning of the Agreement, unless otherwise stipulated.

15.2
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.

15.3
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, for the avoidance of doubt excluding fax and e-mail.

15.4
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.

15.5
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.

15.6
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.

15.7
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.

15.8
The German version of this Agreement shall take precedence over the English version.

Schedule 1: Order Data Processing

Download Schedule 1 as PDF

Version 2021-04-25

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