1.1. These general terms and conditions (the "General Terms and Conditions" or the "General Terms") shall govern all Order Forms entered into by Luzmo NV, a limited liability company (naamloze vennootschap) having its registered office at at Martelarenlaan 38, 3010 Leuven (Belgium), and registered with the Crossroads Bank for Enterprises (Kruispuntbank van Ondernemingen) under company number 0640.944.227, RLE Leuven (hereinafter "Luzmo") and the legal entity or natural person identified as customer in the Order Form (the "Customer"), except when superseded and replaced by any deviating contractual agreements expressly made between Luzmo and the Customer.
1.2. Customer's general terms and conditions are not applicable and expressly excluded.
1.3. Specific services terms, product details and/or subscription terms will be set forth in applicable Order Form(s), each of which become binding on the Parties and subject to these General Terms and documents referenced therein upon execution of an Order Form.
1.4. Each Order Form is governed by and incorporates the following documents in effect as of the date of last update of such documents, collectively referred to as the "Agreement" that consists of:
the Order Form;
In the event of a conflict, the order of precedence is as set out above in descending order.
1.5. Luzmo reserves the right to unilaterally and at any time modify this Agreement provided it gives prior written notice of such changes to Customer (including without limitation by e-mail) (the "Notice"). In that case, Customer may terminate this Agreement within fifteen (15) days of such notice by notifying Luzmo of such termination in writing. If Customer does not notify Luzmo of such termination, the new terms shall become effective as of the date specified in the Notice.
1.6. Except as otherwise provided, the defined terms used in this Agreement shall have the meaning as set forth in Schedule 1.
2.1. This Agreement governs:
3.1. The License Product allows Authorized Users to simplify the visual representation and gathering of data and enable Customer to integrate Luzmo's Dashboards (branded or not, depending on the Plan) in Customer's own software product or portal, including:
3.2. The Licensed Products shall include the latest version of the Licensed Products hosted and maintained by Luzmo, which may be made available by Luzmo from time to time.
4.1. Use of the Licensed Products
4.1.1. Subject to the timely payment of the License Fees by the Customer and Customer's compliance with the terms of the Agreement, Luzmo hereby grants to the Customer solely for the Term of this Agreement a restricted, personal, non-exclusive, non-transferable and non-sublicensable license (except to the extent provided under article 4.1.2) to access and use the Licensed Products for Customer's internal business purposes and for the development and distribution of OEM Products to the extent permitted by the Plan chosen (the "Permitted Use"). Such license shall include the rights for Customer to:
(a) Install, use, integrate, replicate, and reproduce the Licensed Products for the purpose of developing and manufacturing OEM Products that incorporate the Licensed Products;
(b) Demonstrate, market, and distribute the Licensed Products solely as a component of the OEM Product offered by the Customer to its Authorized User(s);
(c )Provide training and support to Authorized Users regarding the Licensed Products, as part of Customer's OEM Products;
(d) Use, reproduce, distribute, and or otherwise make available the Documentation in hard copy and/or read-only soft copy formats solely to the extent that the Documentation is to be used in connection with the OEM Products that incorporate the Licensed Product;
(e) Translate, modify and create derivative works of the Documentation, for the sole purpose of distribution in hard copy and/or read-only soft copy form to (i) Authorized Users who have purchased Customer’s OEM Products; and (ii) third-parties in accordance with Article 4.1.2. of this Agreement and provided that such third parties have executed non-disclosure agreements with Customer with provisions substantially similar to those in Article 10.
4.1.2. Customer may sublicense the rights granted to it under Article 4.1.1 to subcontractors for the sole purpose of developing Customer's OEM Products (the "Subcontractor") and provided that Customer shall impose on the Subcontractor terms and conditions which are at least as protective of Luzmo as the ones set out in the Luzmo's Terms of Use and that Customer shall be exclusively responsible and liable for any acts and omissions of each Subcontractor.
4.1.3. The Customer acknowledges and agrees that any use of the Licensed Products outside of the terms of this Agreement, unless such use has been expressly approved in writing by Luzmo, will entitle Luzmo to immediately terminate or suspend the Agreement for material breach by Customer, without any formalities being required and without prejudice to any other right or remedy available to Luzmo.
4.1.4. Luzmo reserves the right to make, in its sole discretion, changes and updates to the Licensed Products from time to time without prior notification to the Customer. If any such revision to the Licensed Products would materially reduce any features or functionalities of the Licensed Products, Luzmo shall prematurely and taking into account a reasonable notice period, notify such revisions to the Customer prior to their implementation.
4.1.5. The Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Licensed Products, and will notify Luzmo promptly in writing of any such unauthorized use which Customer may become aware of.
4.2. Restrictions on use
4.2.1. The Customer agrees to comply with all laws, rules and regulations applicable to its use of the Licensed Products. The Customer agrees that it will not itself or through any parent, subsidiary, Affiliate, agent, (sub)contractor or other third party:
(a) use or copy the Licensed Products otherwise than for the Permitted Use;
(b) provide, make available to, or permit individuals other than the Authorized Users to use the Documentation, either in whole or part, except as expressly set forth in this Agreement;
(c ) license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share or otherwise make any portion of the Licensed Products available for access by third parties except as otherwise expressly provided in this Agreement;
(d) modify, rent, lease, loan, sell, distribute or create derivative works based on the Documentation (including any translation into another language), except as expressly provided in this Agreement;
(e) access or use the Licensed Products for the purpose of developing or operating products or services intended to be offered to third parties in competition with the Licensed Products or allow access by a direct competitor of Luzmo;
(f) decompile, disassemble, reverse engineer or attempt to derive, reconstruct, identify or discover any Source Code, underlying ideas, underlying user interface techniques or algorithms of the Licensed Products by any means whatsoever, or disclose any of the foregoing except to the extent expressly permitted by applicable law;
(g) encumber any lien or security interest on the Licensed Products;
(h) take any action that would cause the Source Code or the Licensed Products to be placed in the public domain;
(i) use the Licensed Products in an environment not expressly permitted under the Agreement or use the Licensed Products in any way that (i) is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity or (ii) violates or infringes upon the rights of a third party, including those pertaining to: contract, intellectual property, privacy, or publicity;
(j) exceed the allowed number of Authorized Users under the Plan, unless payment of the relevant Variable Fee;
(k) circumvent any technical or other protective measures (including any user limits or view restrictions) embedded in the Licensed Products;
(l) use the Licensed Products to create, use, send, store, or run viruses or other harmful computer code, files, scripts, agents, or other programs;
(m) remove, delete, add to, alter, or obscure the Documentation or any warranties, disclaimers, copyright, trademark, patent, or other intellectual property, proprietary rights, or other notices, or any symbols, or serial numbers that appear on or in connection with any Licensed Product (except as specifically allowed by a Plan chosen by Customer); and
(n) perform any act that, or fail to perform any act the omission of which, infringes, misappropriates, or otherwise violates any Intellectual Property Rights of Luzmo or violates any applicable law.
4.2.2. Upon first request by Luzmo, the Customer will provide Luzmo with such information, certifications and access to its systems as may reasonably be requested by Luzmo to verify compliance with the restrictions on the use of the Licensed Products.
4.2.3. No express or implied license or right of any kind is granted to the Customer regarding the Licensed Products or any part thereof, including but not limited to any right to obtain possession of any Source Code, data or other technical material relating to the Software, unless otherwise provided in this Agreement.
Subject to the timely payment of the Fees by the Customer, Customer's compliance with the terms of the Agreement and Authorized User's compliance with the Terms of Use, Luzmo hereby grants the Authorized Users a restricted, personal, non-exclusive, non-transferable, non-assignable license, without the right to sub-license, for the Term to access and use the Licensed Products (as incorporated in the OEM Product, as the case may be) for the Authorized User's internal business purpose (and to the extent permitted by the Plan chosen by Customer.
All Plans include Luzmo's standard support services provided to Customer ("First Line Support") in accordance with the terms of this article. Luzmo shall provide First Line Support services to Customer exclusively via email sent to support@luzmo.com and only regarding Support Cases in connection with the Licensed Products or the OEM Products as follows:
(a) Luzmo will provide Customer with off-site troubleshooting and other technical assistance and support concerning the installation and operation of the Licensed Products distributed as part of the OEM Product, via e-mail address. Luzmo email support shall be available from 09:00 AM to 5:00 PM CET on business days (excluding public holidays);
(b) Support Cases must be reported by Customer to Luzmo via the following e-mail address: support@Luzmo. Only Customer's Support Contact may report Support Cases;
(c ) Luzmo will respond to a Customer Support Contact by e-mail or telephone, at Luzmo sole option;
(d) Luzmo will use its best efforts to resolve Support Cases reported by a Customer Support Contact as soon as reasonably practicable;
(e) A Support Case is resolved upon the earlier of the following: (i) the issue or problem is resolved, (ii) if the issue or problem is the result of an Error, the provision of a Fix or Error Correction, (iii) Luzmo is able to provide a reasonable and mutually acceptable alternative solution, (iv) Luzmo confirms that the issue or problem is not due to any Error or deficiency in the Licensed Products, (v) Luzmo confirms that the issue or problem is in fact the result of a multi-vendor issue, and Customer agrees to transfer the problem to the third-party vendor for resolution (vi) Customer Support Contact requests that Luzmo closes the Support Case, or (vii) the Support Case has been left open for five (5) consecutive business days, during which period Luzmo has not received a response from a Customer Support Contact;
(f) Notwithstanding anything contrary herein, Luzmo will have no obligation to provide First Line Support in connection with Support Cases or operational disruptions caused by:
(g) Luzmo may elect to provide additional support services at the request of Customer, for which Luzmo will charge the Customer, and Customer agrees to pay Luzmo's then-current standard consulting fees.
The Licensed Products provided by Luzmo to the Customer can be supplemented by the following Additional Services and Add-On Modules, that will be delivered by Luzmo upon separate request from Customer and after payment of the relevant Add-On Fees detailed in Article 12.1.1.
7.1.1. Service Levels & Credits
- seven (7) days, if the Monthly Uptime Percentage for a calendar month is between 99.0% and 95.0%;
- fourteen (14) days, if the Monthly Uptime Percentage for a calendar month is between 95.0% and 90.0%;
- thirty (30) days , if the Monthly Uptime Percentage for a calendar month is lower than 90.0%.
7.1.2. Escrow Agreement
7.1.3. Additional integration/dashboarding support
In the event the Customer would require additional integration/dashboarding support, such additional services can be provided by Luzmo on a time and material basis. Parties agree to enter into an Order Form determining (i) the scope of the services, (ii) the duration of the services, and (iii) the applicable fees payable by the Customer in this respect. Such services are also available to Customer independently from the Licensed Products.
7.1.4. Training or workshop
8.1. The Licensed Products, development tools, methods, procedures and Documentation of Luzmo will be and remain Luzmo's exclusive property and the Customer will obtain no right, title or interest therein (including without limitation any Intellectual Property Rights to Luzmo's Dashboards and any related and/or integrated Intellectual Property Rights thereto (including the improvements thereof)). No license is granted to the Customer except as to use the Licensed Products as expressly agreed upon between Luzmo and the Customer. Luzmo's name, Luzmo's logo, and the product names associated with the Licensed Products are trademarks of Luzmo and they may not be used without Luzmo's prior written consent.
8.2. In the event that, notwithstanding any prohibition thereto, the Customer modifies, improves or creates derivative works of or from the Licensed Products or any part thereof (collectively, "Improvements"), Luzmo shall immediately and irrevocably own all right, title and interest, including any and all Intellectual Property Rights, in and to such Improvements and the Customer hereby assigns any rights (including any Intellectual Property Rights) in such Improvements to Luzmo and agrees to secure any additional confirmations, assignments or other instruments or documents as may be necessary to vest title to any such Improvements in Luzmo as contemplated by this article.
8.3. No amount shall be payable by Luzmo to the Customer for the assignment of any rights in Improvements.
8.4. The Customer agrees not to remove, suppress or modify in any way any proprietary marking, including any trademark or copyright notice, on or in the Licensed Products, except as otherwise specifically permitted under the Plan chosen by Customer. The Customer shall incorporate or reproduce such proprietary markings in any permitted back-up or other copies of the Licensed Products except as otherwise agreed.
9.1. All Customer Data submitted by Customer and/or its Authorized Users to Luzmo during the term of the Agreement will remain the sole and exclusive property of the Customer and/or its Authorized Users, respectively.
9.2. The Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Customer Data. Luzmo will not use the Customer Data for any purpose other than to ensure performance of this Agreement.
9.3. The Customer grants Luzmo a non-exclusive, royalty-free, worldwide, sublicensable, transferable, license to use, copy, store, modify, transmit and display the Customer Data to the extent useful or necessary to perform its obligations under the Agreement, in particular to provide the Licensed Products.
9.4. Luzmo reserves the right, but is not obliged, to review and remove any Customer Data which are deemed to be in violation with (i) the provisions of the Agreement or otherwise inappropriate, (ii) any rights of third parties, or (iii) any applicable legislation or regulation.
9.5. The Customer shall in its sole discretion be entitled to cease any access to, remove, process and/or modify Customer Data and make such Customer Data available to any Authorized Users.
9.6. Customer agrees that Luzmo may collect, use, and disclose quantitative data derived from the use of the Licensed Products for industry analysis, benchmarking, analytics, marketing, and other business purposes. All data collected, used, and disclosed will be in aggregate form only and will not identify Customer, its Authorized Users, Customer Data.
10.1. Each of the Parties agrees that it will not (i) disclose any Confidential Information of the other Party, except to those of its employees, sub-suppliers, officers, directors, contractors, Affiliates and/or all other external advisors that have a reasonable demonstrable legitimate need to know such information in light of such Party's rights and obligations hereunder, subject to each of them committing in writing to adequate confidentiality obligations prior to being granted access to such Confidential Information and subject to any other conditions and restrictions set out in the Agreement, or (ii) use any Confidential Information of the other Party for its own benefit or that of any third party, except as expressly permitted under the Agreement.
10.2. Each of the Parties shall ensure that each person who receives Confidential Information is made aware of and complies with these confidentiality obligations. Each of the Parties shall be responsible and liable towards the other Party for a breach of these confidentiality obligations by any party acting under their control or on their behalf or to which they otherwise provided Confidential Information.
10.3. Shall not be considered Confidential Information, information which:
(a) is in the public domain at the time of disclosure by the disclosing Party or subsequently falls into the public domain through no breach of this Article 10 by the receiving Party, provided that the Customer acknowledges and agrees that Confidential Information of Luzmo shall not be deemed to be in the public domain merely because any part of said information is embodied in general disclosures or because individual features, components or combinations thereof are known, or become, known to the public, through whatever means, including through means of the supply or commercialization of products or services based on or related to such Confidential Information;
(b) can be proven to the reasonable satisfaction of the disclosing Party to be lawfully in the receiving Party's possession prior to any disclosure by the disclosing Party and without an obligation of confidentiality towards the disclosing Party;
(c )can be proven to the reasonable satisfaction of the disclosing Party to be lawfully obtained from a third party which was not under an obligation of confidentiality towards the disclosing Party; or
(d) can be proven to the reasonable satisfaction of the disclosing Party to be independently developed by the receiving Party, without access or reference to, or use of, the disclosing Party's Confidential Information.
10.4. Parties' confidentiality obligations shall survive any termination of the Agreement for a period of five (5) years. Upon termination of the Agreement or upon disclosing Party's earlier written request, the receiving Party shall promptly destroy or return to the disclosing Party all Confidential Information of the disclosing Party in its possession or under its control and shall certify in writing its compliance with the foregoing.
11.1. In consideration for the Licensed Product and the rights granted pursuant to Article 3, the Customer agrees to pay to Luzmo the License Fee. The License Fee is composed of (i) a recurring fixed fee based on the Plan Customer chooses in the Order Form (the "Fixed Fee") and (ii) a fee relating to extra use not included in the Plan chosen (the "Variable Fee").
11.2. Both the Fixed Fee and the Variable Fee are agreed upon between the Customer and Luzmo in the Order Form.
11.2.1. Fixed Fee
- The Licensed Product is available under four Plans that offer different features and usage limits and which amount to different Fixed Fees.
- The Fixed Fees, usage and features associated with the Plans are set out in the Order Form.
- Customer may upgrade between two Plans.
- When Customer upgrades, the new Plan and related Fixed Fee becomes immediately applicable. Upon upgrade, the new Fixed Fee for the subsisting invoicing period would be charged on pro-rated basis and the Variable Fee will be computed based on the limits of the upgraded Plan. Subsequent invoicing periods will be charged in full according to the new Fixed Fee.
11.2.2. Variable Fee
- If Customer goes beyond any usage limits included in the Plan chosen, a Variable Fee shall be due, which monthly amount is set out in the Order Form.
- The Variable Fee shall be invoiced monthly, with the first invoice being issued at the end of the then current calendar month.
- If the total of the Fixed Fee and Variable Fee for a given month exceeds the Fixed Fee of an upgrade Plan, Customer will be notified automatically and given the option to switch to this upgrade Plan in accordance with article 11.2.1.
11.3. Luzmo does not offer a guarantee of price stability over any specific duration, as pricing is contingent upon factors such as price inflation, market conditions, and operational considerations across various countries where Luzmo operates. In the event of a price adjustment, Luzmo commits to notifying its existing customers a minimum of 3 months prior to the implementation of new prices. Any modifications to license fees will exclusively take effect on the contract's renewal date.
Customer may subscribe to Add-On Modules against payment of the fees detailed in the Order Form (the “Add-On Fee”) or request Luzmo to provide Additional Services of which the details and scope are set forth in the Order Form as well (the “Additional Service Fees”).
13.1. Luzmo shall start invoicing Customer as of the Effective Date when Customer subscribes to the Licensed Products, Add-On Modules (and any renewal thereof made in accordance with article 17.2) and/ or Additional Services. Following invoices will be issued according to the frequency indicated in the relevant Order Form. Invoices shall be issued at the beginning of each invoicing period. Variable Fees shall be invoiced during the invoice period following the one during which they were incurred. A copy of any invoice provided by Luzmo is always available in the "Owner Luzmo account".
13.2. Invoices are issued in the currency indicated in the Order Form. Invoices are due and payable by the Customer within fourteen (14) calendar days from the invoice date. The amount of any invoice which has not been paid within fourteen (14) calendar days from the invoice date shall automatically be subject to a late payment interest equal to the then applicable interest rate as calculated and determined in accordance with the Belgian law of 2 August 2002 regarding late payment in trade transactions ("Wet betreffende de bestrijding van de betalingsacherstand in handelstransacties").In addition, the Customer shall pay all costs incurred by Luzmo as a result of the (extra)judicial enforcement of the Customer's payment obligations hereunder.
13.3. If the Customer fails to pay any outstanding amounts within thirty (30) calendar days from receipt of a written payment default notice, Luzmo may terminate the Agreement, or alternatively, at its sole discretion, suspend its obligations and/or the Customer's user rights granted hereunder by written notice to the Customer until receipt of payment of such outstanding amounts.
13.4. If the Customer disputes any portion of an invoice, the Customer shall notify Luzmo within five (5) calendar days from the invoice date of the nature of any such dispute, the basis for the Customer's dispute and the amount involved, together with any appropriate information supporting Customer's position, failure of which shall result in the invoice being deemed accepted by the Customer. In any event, the undisputed portion of the invoice shall be paid as set forth herein.
13.5. Unless otherwise specified in this Agreement, all License Fees are non-refundable. No refunds shall be issued for partial use or non-use of the Licensed Products by Customer.
13.6. The License Fees do not include any taxes, including value-added tax or withholding taxes. Luzmo will invoice Customer for such taxes if it believes it has a legal obligation to do so and Customer agrees to pay such taxes if so invoiced.
14.1. Luzmo represents and warrants to the Customer the following:
(a) except as expressly set forth in this Article 14 and to the maximum extent permitted by applicable law, the Licensed Products are provided "as is." The express warranties set forth in this Article 14 are the only warranties made by Luzmo with respect to the Licensed Products or any materials or services provided by Luzmo in connection with the Agreement. Luzmo makes no (and hereby disclaims all) other warranties, covenants or representations or conditions, either written, oral, express or implied, including without limitation any implied warranties of merchantability, suitability and fitness for a particular purpose or use with respect to the use, misuse or inability to use the Licensed Products (in whole or in part) or any other products or services provided by Luzmo. Luzmo makes no warranty with respect to any hardware, software or product of any third party. All use of and reliance by the Customer on the Licensed Products or services provided by Luzmo under the Agreement are at the sole risk of Customer. Luzmo does not guarantee the accuracy and the correctness of the results generated by the use of such services and/or the Licensed Products;
(b) Luzmo warrants and guarantees that the services provided under this Agreement shall be carried out in a proper and professional manner by properly qualified personnel;
(c ) Luzmo will do its best effort to warrant that the use of the Licensed Product provided to the Customer by Luzmo will be uninterrupted;
(d) to the best of Luzmo's knowledge, the Licensed Products do not, upon delivery to the Customer, contain any Virus and Luzmo shall not knowingly program into any of the Licensed Products any Virus or other software routine designed to permit unauthorized access to any of Customer's computer systems or to disable, erase or otherwise cause damage to the Software, hardware or data or any back door, time bomb, software lockout key or device, drop dead device, or other software routine designed to disable a computer, either automatically or with the passage of time or under the control of any person, unless any such software routine is expressly requested in writing by the Customer. It being understood that Customer will perform the necessary checks and scans to ascertain this representation;
(e) Luzmo warrants that the use of the Licensed Product will meet the applicable servicelevels in the event Customer subscribed to the "Service Levels & Credits" Add-On Module; and
(f) the Licensed Products may include gateways, links or other functionality that allows Customer to access third party services ("Third Party Services") and/or third party content and materials ("Third Party Materials"). Luzmo does not supply and is not responsible for any Third Party Services or Third Party Materials, which may be subject to their own licenses, end-user agreements, privacy and security policies, and/or terms of use. Luzmo MAKES NO WARRANTY AS TO THIRD PARTY SERVICES OR THIRD PARTY MATERIALS.
14.2. Each Party represents and warrants to the other the following:
(a) it is duly organized, validly existing and in good standing under the laws of its incorporation and has all requisite power and authority to execute and deliver the Agreement, to perform its obligations hereunder and to engage in the transactions contemplated thereby;
(b) the execution, delivery and performance of the Agreement have been duly authorized by all requisite action on the part of such Party and the Agreement constitutes the legal, valid and binding obligation of such Party, enforceable in accordance with its terms;
(c ) the execution, delivery and performance of the Agreement by each Party do not, to the best of its knowledge (i) violate any judgment, order, injunction, decree or award of any court or governmental body binding on such Party, (ii) violate any law or regulation that is applicable to such Party, or (iii) violate or conflict with, or constitute a default under, the terms of any agreement to which such Party is a party. If at any time during the Agreement, a Party notices or suspects that wrong assumptions have been made or any of these warranties prove incorrect, it shall promptly inform the other Party thereof in writing.
15.1. Luzmo shall defend and indemnify the Customer against any founded and well-substantiated claims brought by third parties for any infringement to such third party's Intellectual Property Rights in Europe and in the United States and excluding any claims resulting from (i) the Customer's unauthorized use of the Licensed Products, (ii) the Customer or any third party's modification of any of the Licensed Products, (iii) Customer's use of the Licensed Products in combination with any non Luzmo products or services, or (iv) the Licensed Products having been developed to the Customer's design or incorporating documents, materials, ideas, data or other information, provided by or on behalf of the Customer. The exclusions and limitations of liability under this Article shall operate to the benefit of Luzmo's Affiliates and subcontractors to the same extent such provisions operate to the benefit of Luzmo.
15.2. Luzmo's indemnity obligation shall be conditional upon the following: (i) Luzmo is given prompt written notice of any claim, (ii) Luzmo is granted sole control of the defense and settlement of such a claim, (iii) upon Luzmo's request, the Customer fully cooperates with Luzmo in the defense and settlement of such a claim, at Luzmo's expense and (iv) the Customer makes no admission as to Luzmo's liability in respect of such a claim, nor does the Customer agree to any settlement in respect of such a claim without Luzmo's prior written consent. Provided these conditions are met, Luzmo shall indemnify the Customer for the damages and costs incurred by the Customer as a result of such a claim, as awarded by a competent court of final instance, or as agreed to by Luzmo pursuant to a settlement agreement.
15.3. In the event the Licensed Products, in Luzmo's reasonable opinion, are likely to or become the subject of a third-party infringement claim (as per Article 15.1), Luzmo shall have the right, at its sole option and expense, to: (i) modify the (allegedly) infringing part of the Licensed Products so that they become non-infringing while preserving equivalent functionality, (ii) obtain for the Customer a license to continue using the Licensed Products or (iii) terminate the relevant license and pay to the Customer an amount equal to a pro rata portion of the License Fee paid to Luzmo for that portion of the Licensed Products which is the subject of such infringement.
15.4. The indemnity provided in article 15.2 and remedies provided in article 15.3 are the entire liability and obligation of Luzmo and the sole remedy of the Customer with respect to any infringement or alleged infringement of any Intellectual Property Rights caused by the Licensed Products or any part thereof.
16.1. To the maximum extent permitted by applicable law, Luzmo excludes any and all liability (whether in contract, warranty, tort (including as a result of negligence, product liability or other theory)) or otherwise to the Customer or any third person for any indirect, punitive, incidental, special or consequential or other similar damages (including damages for loss of profit, revenue, business, contracts or clients, loss of or corruption of data, loss of goodwill, damages to equipment and reputational damage, opportunity loss, loss of anticipated savings, and the cost of procuring replacement goods or services), even if Luzmo has been advised or notified of the possibility of such costs or damages.
16.2. Without prejudice to and without limiting Article 16.1, Luzmo's aggregate liability arising out of or in connection with the Agreement or the transactions contemplated hereby, whether in contract, warranty, tort (including negligence, product liability or other theory), or otherwise, shall not exceed the total License Fees (excl. taxes) paid by the Customer to Luzmo pursuant to this Agreement during the twelve (12) month period preceding the date on which the applicable liability claim arose.
16.3. The Customer agrees that Luzmo can only be held liable as per the terms of this Article 16 to the extent damages suffered by the Customer are directly and solely attributable to Luzmo. However, nothing in the Agreement shall limit or exclude Luzmo's liability for (i) gross negligence, (ii) willful misconduct, (iii) fraud.
16.4. The limitations provided for in this section 16 shall not apply to Luzmo's indemnification and remedies obligations provided for in article 15.
17.1. This Agreement enters into force on the Effective Date of the relevant Order Form and shall remain in effect for the term specified in such Order Form, including all renewals thereto (the "Term").
17.2. Subscription to the Licensed Products and Add-On Modules shall be tacitly renewed for successive terms equivalent in length to the then expiring Term, unless either Party gives the other Party written notice of its intent not to renew the Term at least thirty (30) calendar days prior to the expiration of the then current Term. Unless otherwise provided for in any Order Form, the Fixed Fee and Variable Fee (if any) applicable to Customer's subscription to the Licensed Products for any such subsequent Term shall be based on the Plan to which Customer has subscribed as of the time such subsequent Term commences.
17.3. In the case of an Order Form for Additional Services, if no end date is specified in the Order Form, then the Order Form shall expire upon completion of Additional Services or early termination as permitted by this Agreement.
17.4. The term of this Agreement shall continue as long as an Order Form referencing this Agreement remains valid and in effect. Prior to the Order Form Start Date, Luzmo may, upon mutual agreement, start providing Additional Services and/or provide Customer access to the Licensed Products/Add-On Modules, which will be governed by this Agreement. Termination or expiration of any Order Form or shall leave other Order Forms unaffected.
17.5. Parties agree that this Agreement can be terminated, without prior notice in the event the other Party:
17.6. Either Party will be entitled to terminate the Agreement by written notice in the event the other Party commits a material and persistent breach under the Agreement (other than as a result of a Force Majeure (as defined hereinafter)), including but not limited to the timely performance of any payment obligations under the Agreement. "Force Majeure" will be understood as being an Act of God, fire, casualty, flood, earthquake, cyberattacks, war, strike, epidemic, pandemic, destruction of production facilities, riot, acts of government, insurrection, material unavailability, interruption in supply of electricity, labor disputes, lock-out telecommunications, network, computer, server or internet downtime or any and all other unforeseen and unforeseeable events beyond a Party's control.
17.7. Where any default or failure can be remedied, the non-defaulting Party should give written notice to the defaulting Party of such alleged default or failure and allow for a period of thirty (30) calendar days to remedy the same to the reasonable satisfaction of the non-defaulting Party. If the default or failure is not remedied at the end of said notice period, the non-defaulting Party is allowed to terminate the Agreement immediately upon written notice.
17.8. Upon termination of the Agreement for any reason whatsoever the Customer shall promptly pay Luzmo all feescovering the full term of the Agreement, except in the event of a termination by the Customer pursuant to Articles 17.5 or 17.6, in which case the Customer must promptly pay to Luzmo all fees and other amounts payable hereunder up to the actual termination date.The licenses and user rights with respect to the Licensed Products granted to the Customer pursuant to this Agreement shall automatically terminate and the Customer shall return to Luzmo or destroy all copies (in whatever form or medium) of the Licensed Products and the Confidential Information of Luzmo that are in the possession or under control of the Customer. Luzmo's obligation to provide any further services to Customer under this Agreement will immediately terminate, except any such services that are expressly to be provided following the expiration or termination of this Agreement.
17.9. The provisions of these General Terms that are expressly or implicitly intended to survive termination, including but not limited to, Articles 9, 10, 13, 14, 15, 16, 17 and 18 shall survive any expiration or termination of the Agreement.
18.1. Each Party shall comply with any obligations under the General Data Protection Regulation 2016/679 (the GDPR) and other applicable privacy laws with respect to the processing of Personal Data in the performance of this Agreement.(the GDPR) and other applicable privacy laws with respect to the processing of Personal Data in the performance of this Agreement.
18.2. In connection with and for the purpose of the performance of its obligations (including but not limited to the provision of the Services) under this Agreement, Luzmo will process Personal Data on behalf of Customer in accordance with the Data Processing Agreement, available under your profile page under Legal info. This Personal Data may include, but is not limited to Personal Data of Customer as well as of Authorized Users. Customer shall ensure that it has properly informed in accordance with articles 12, 13 and 14 of the GDPR those whose Personal Data is being processed and that the Personal Data that it supplies or discloses to Luzmo has been obtained fairly and lawfully and that it has, to the extent necessary, obtained all necessary consent of those whose Personal Data is being processed
18.3. Each Party shall ensure that its personnel and (sub)contractors shall, at all times, comply with its/their respective obligations under the GDPR and other applicable privacy laws and the Data Processing Agreement as available under your profile page under Legal info.
19.1. All notices, requests, consents, demands and other communications addressed to the receiving Party's address as set forth below or to such other address as a Party may designate by notice hereunder, and either (i) sent by e-mail, or (ii) delivered by hand, or (iii) sent by registered or certified mail, return receipt requested, postage prepaid:
All notices shall be deemed to have been given either (i) by email, or (ii) if by hand, at the time of actual delivery thereof to the receiving Party at such Party's address as provided above, as reasonably demonstrated by the Party serving notice, or (ii) if sent by registered or certified mail, twenty-four (24) hours following the day such mailing is made.
19.2. No announcements regarding the Agreement or its subject- or ancillary matter will be made by any Party except as required by law, without the prior written approval of the other Party, such approval is not to be unreasonably withheld or delayed.
19.3. Each of the Parties to the Agreement shall bear its own costs and expenses in connection with the drafting and negotiation of the Agreement.
19.4. The Parties are independent contractors. This Agreement does not create any partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties.
19.5. The Customer may not assign or transfer the Agreement to any third party (including without limitation its Affiliates) without the prior written consent of Luzmo, such consent not to be unreasonably withheld, but which consent may be made subject by Luzmo (acting reasonably and in good faith) to payment of additional fees. Luzmo shall be free to transfer or assign (part of) the Agreement to one of its Affiliates. Luzmo shall also be free to subcontract performance of its obligations under the Agreement to its Affiliates, to individual contractors and to third party service providers without having to obtain the Customer's prior consent, provided that Luzmo shall remain responsible towards the Customer in respect of such subcontracted services.
19.6. The present Agreement is governed by Belgian law. Any dispute regarding the interpretation and/or the execution of the present Agreement will be submitted to the competent courts of Leuven. Although the Agreement has been drafted in English, judicial proceedings will be held in Dutch. The provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods are expressly excluded and do not apply to this Agreement. Any legal action arising under this Agreement must be initiated within two years after the cause of action arises.
19.7. If a court of competent jurisdiction determines any provision, or any portion thereof, of the Agreement to be unenforceable or invalid, then such provision shall be deemed limited to the extent that such court deems it valid or enforceable and the remaining provisions of the Agreement shall nevertheless remain in full force and effect. The Parties agree in such case to start good faith negotiations in order to substitute such invalid or unenforceable provision by a like provision to accomplish the intent of Parties to the extent permitted by applicable law.
19.8. No failure or delay by a Party hereto in exercising any right, power or remedy under the Agreement, and no course of dealing between the Parties hereto, shall operate as a waiver of any such right, power or remedy of the Party. No single or partial exercise of any right, power or remedy under the Agreement by a Party hereto, nor any abandonment or discontinuance of steps to enforce any such right, power or remedy, shall preclude such Party from any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The election of any remedy by a Party hereto shall not constitute a waiver of the right of such Party to pursue other available remedies.
19.9. As of the Effective Date, Luzmo shall be entitled to refer to the Customer as a Customer in all of its commercial and marketing documentation and client listings, as a sales reference, as well as on Luzmo's website.
1.1. These general terms and conditions (the "General Terms and Conditions" or the "General Terms") shall govern all Order Forms entered into by Cumul.io Inc, a company incorporated and registered under the laws of Delaware with offices as set forth in the Order Form (hereinafter "Luzmo") and the legal entity or natural person identified as customer in the Order Form (the "Customer"), except when superseded and replaced by any deviating contractual agreements expressly made between Luzmo and the Customer.
1.2. Customer's general terms and conditions are not applicable and expressly excluded.
1.3. Specific services terms, product details and/or subscription terms will be set forth in applicable Order Form(s), each of which become binding on the Parties and subject to these General Terms and documents referenced therein upon execution of an Order Form.
1.4. Each Order Form is governed by and incorporates the following documents in effect as of the date of last update of such documents, collectively referred to as the "Agreement" that consists of:
In the event of a conflict, the order of precedence is as set out above in descending order.
1.5. Luzmo reserves the right to unilaterally and at any time modify this Agreement provided it gives prior written notice of such changes to Customer (including without limitation by e-mail) (the "Notice"). In that case, Customer may terminate this Agreement within fifteen (15) days of such notice by notifying Luzmo of such termination in writing. If Customer does not notify Luzmo of such termination, the new terms shall become effective as of the date specified in the Notice.
1.6. Except as otherwise provided, the defined terms used in this Agreement shall have the meaning as set forth in Schedule 1.
2.1. This Agreement governs:
(i) Customer's subscription to the Licensed Product through a Plan of its choice made available to Customer in the form of a SaaS solution in accordance with the terms of this Agreement; and/or
(ii) Customer's subscription to additional modules described in article 7.1.1. ("Service Levels & Credits") and 7.1.2. ("Escrow Agreement") (together referred to as the "Add-On Modules"); and/or
(iii) the provision by Luzmo of additional services described in article 7.1.3. ("Additional Integration/Dashboarding Support") and article 7.1.4. ("Training or Workshop") (the "Additional Services").
3.1. The License Product allows Authorized Users to simplify the visual representation and gathering of data and enable Customer to integrate Luzmo's Dashboards (branded or not, depending on the Plan) in Customer's own software product or portal, including:
3.2. The Licensed Products shall include the latest version of the Licensed Products hosted and maintained by Luzmo, which may be made available by Luzmo from time to time.
4.1. Use of the Licensed Products
4.1.1. Subject to the timely payment of the License Fees by the Customer and Customer's compliance with the terms of the Agreement, Luzmo hereby grants to the Customer solely for the Term of this Agreement a restricted, personal, non-exclusive, non-transferable and non-sublicensable license (except to the extent provided under article 4.1.2) to access and use the Licensed Products for Customer's internal business purposes and for the development and distribution of OEM Products to the extent permitted by the Plan chosen (the "Permitted Use"). Such license shall include the rights for Customer to:
(a) install, use, integrate, replicate, and reproduce the Licensed Products for the purpose of developing and manufacturing OEM Products that incorporate the Licensed Products;
(b) demonstrate, market, and distribute the Licensed Products solely as a component of the OEM Product offered by the Customer to its Authorized User(s);
(c ) provide training and support to Authorized Users regarding the Licensed Products, as part of Customer's OEM Products;
(d) use, reproduce, distribute, and or otherwise make available the Documentation in hard copy and/or read-only soft copy formats solely to the extent that the Documentation is to be used in connection with the OEM Products that incorporate the Licensed Product;
(e) translate, modify and create derivative works of the Documentation, for the sole purpose of distribution in hard copy and/or read-only soft copy form to (i) Authorized Users who have purchased Customer’s OEM Products; and (ii) third-parties in accordance with Article 4.1.2. of this Agreement and provided that such third parties have executed non-disclosure agreements with Customer with provisions substantially similar to those in Article 10.
4.1.2. Customer may sublicense the rights granted to it under Article 4.1.1 to subcontractors for the sole purpose of developing Customer's OEM Products (the "Subcontractor") and provided that Customer shall impose on the Subcontractor terms and conditions which are at least as protective of Luzmo as the ones set out in the Luzmo's Terms of Use and that Customer shall be exclusively responsible and liable for any acts and omissions of each Subcontractor.
4.1.3. The Customer acknowledges and agrees that any use of the Licensed Products outside of the terms of this Agreement, unless such use has been expressly approved in writing by Luzmo, will entitle Luzmo to immediately terminate or suspend the Agreement for material breach by Customer, without any formalities being required and without prejudice to any other right or remedy available to Luzmo.
4.1.4. Luzmo reserves the right to make, in its sole discretion, changes and updates to the Licensed Products from time to time without prior notification to the Customer. If any such revision to the Licensed Products would materially reduce any features or functionalities of the Licensed Products, Luzmo shall prematurely and taking into account a reasonable notice period, notify such revisions to the Customer prior to their implementation.
4.1.5. The Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Licensed Products, and will notify Luzmo promptly in writing of any such unauthorized use which Customer may become aware of.
4.2. Restrictions on use
4.2.1. The Customer agrees to comply with all laws, rules and regulations applicable to its use of the Licensed Products. The Customer agrees that it will not itself or through any parent, subsidiary, Affiliate, agent, (sub)contractor or other third party:
4.2.2. Upon first request by Luzmo, the Customer will provide Luzmo with such information, certifications and access to its systems as may reasonably be requested by Luzmo to verify compliance with the restrictions on the use of the Licensed Products.
4.2.3. No express or implied license or right of any kind is granted to the Customer regarding the Licensed Products or any part thereof, including but not limited to any right to obtain possession of any Source Code, data or other technical material relating to the Software, unless otherwise provided in this Agreement.
5.1. Subject to the timely payment of the Fees by the Customer, Customer's compliance with the terms of the Agreement and Authorized User's compliance with the Terms of Use, Luzmo hereby grants the Authorized Users a restricted, personal, non-exclusive, non-transferable, non-assignable license, without the right to sub-license, for the Term to access and use the Licensed Products (as incorporated in the OEM Product, as the case may be) for the Authorized User's internal business purpose (and to the extent permitted by the Plan chosen by Customer.
6.1. All Plans include Luzmo's standard support services provided to Customer ("First Line Support") in accordance with the terms of this article. Luzmo shall provide First Line Support services to Customer exclusively via email sent to support@Luzmo and only regarding Support Cases in connection with the Licensed Products or the OEM Products as follows:
(a) Luzmo will provide Customer with off-site troubleshooting and other technical assistance and support concerning the installation and operation of the Licensed Products distributed as part of the OEM Product, via e-mail address. Luzmo email support shall be available from 09:00 AM to 5:00 PM CET on business days (excluding public holidays).
(b) Support Cases must be reported by Customer to Luzmo via the following e-mail address: support@Luzmo. Only Customer's Support Contact may report Support Cases;
(c ) Luzmo will respond to a Customer Support Contact by e-mail or telephone, at Luzmo sole option;
(d) Luzmo will use its best efforts to resolve Support Cases reported by a Customer Support Contact as soon as reasonably practicable;
(e) A Support Case is resolved upon the earlier of the following: (i) the issue or problem is resolved, (ii) if the issue or problem is the result of an Error, the provision of a Fix or Error Correction, (iii) Luzmo is able to provide a reasonable and mutually acceptable alternative solution, (iv) Luzmo confirms that the issue or problem is not due to any Error or deficiency in the Licensed Products, (v) Luzmo confirms that the issue or problem is in fact the result of a multi-vendor issue, and Customer agrees to transfer the problem to the third-party vendor for resolution (vi) Customer Support Contact requests that Luzmo closes the Support Case, or (vii) the Support Case has been left open for five (5) consecutive business days, during which period Luzmo has not received a response from a Customer Support Contact;
(f) Notwithstanding anything contrary herein, Luzmo will have no obligation to provide First Line Support in connection with Support Cases or operational disruptions caused by: (1) the use of the Licensed Products with software or hardware not designed for use with the operating systems approved by Luzmo in the Documentation, (2) the use of the Licensed Products with hardware that does not satisfy the minimum system requirements specified by Luzmo in the Documentation, (3) changes, modifications or alterations to the Licensed Products made by Customer and not approved in writing by Luzmo or its authorized representatives, (4) use of the Licensed Products other than in accordance with the Documentation and the Agreement, (5) the failure to install Updates made available by Luzmo or (6) the intentional misconduct of Customer, its clients or their respective Employees and agents or any third-party;
(g) Luzmo may elect to provide additional support services at the request of Customer, for which Luzmo will charge the Customer, and Customer agrees to pay Luzmo's then-current standard consulting fees.
7.1. The Licensed Products provided by Luzmo to the Customer can be supplemented by the following Additional Services and Add-On Modules, that will be delivered by Luzmo upon separate request from Customer and after payment of the relevant Add-On Fees detailed in Article 12.1.1.
7.1.1. Service Levels & Credits
- seven (7) days, if the Monthly Uptime Percentage for a calendar month is between 99.0% and 95.0%;
- fourteen (14) days, if the Monthly Uptime Percentage for a calendar month is between 95.0% and 90.0%;
- thirty (30) days , if the Monthly Uptime Percentage for a calendar month is lower than 90.0%.
7.1.2. Escrow Agreement
7.1.3. Additional integration/dashboarding support
7.1.4. Training or workshop
8.1. The Licensed Products, development tools, methods, procedures and Documentation of Luzmo will be and remain Luzmo's exclusive property and the Customer will obtain no right, title or interest therein (including without limitation any Intellectual Property Rights to Luzmo's Dashboards and any related and/or integrated Intellectual Property Rights thereto (including the improvements thereof)). No license is granted to the Customer except as to use the Licensed Products as expressly agreed upon between Luzmo and the Customer. Luzmo's name, Luzmo's logo, and the product names associated with the Licensed Products are trademarks of Luzmo and they may not be used without Luzmo's prior written consent.
8.2. In the event that, notwithstanding any prohibition thereto, the Customer modifies, improves or creates derivative works of or from the Licensed Products or any part thereof (collectively, "Improvements"), Luzmo shall immediately and irrevocably own all right, title and interest, including any and all Intellectual Property Rights, in and to such Improvements and the Customer hereby assigns any rights (including any Intellectual Property Rights) in such Improvements to Luzmo and agrees to secure any additional confirmations, assignments or other instruments or documents as may be necessary to vest title to any such Improvements in Luzmo as contemplated by this article.
8.3. No amount shall be payable by Luzmo to the Customer for the assignment of any rights in Improvements.
8.4. The Customer agrees not to remove, suppress or modify in any way any proprietary marking, including any trademark or copyright notice, on or in the Licensed Products, except as otherwise specifically permitted under the Plan chosen by Customer. The Customer shall incorporate or reproduce such proprietary markings in any permitted back-up or other copies of the Licensed Products except as otherwise agreed.
9.1. All Customer Data submitted by Customer and/or its Authorized Users to Luzmo during the term of the Agreement will remain the sole and exclusive property of the Customer and/or its Authorized Users, respectively.
9.2. The Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Customer Data. Luzmo will not use the Customer Data for any purpose other than to ensure performance of this Agreement.
9.3. The Customer grants Luzmo a non-exclusive, royalty-free, worldwide, sublicensable, transferable, license to use, copy, store, modify, transmit and display the Customer Data to the extent useful or necessary to perform its obligations under the Agreement, in particular to provide the Licensed Products.
9.4. Luzmo reserves the right, but is not obliged, to review and remove any Customer Data which are deemed to be in violation with (i) the provisions of the Agreement or otherwise inappropriate, (ii) any rights of third parties, or (iii) any applicable legislation or regulation.
9.5. The Customer shall in its sole discretion be entitled to cease any access to, remove, process and/or modify Customer Data and make such Customer Data available to any Authorized Users.
9.6. Customer agrees that Luzmo may collect, use, and disclose quantitative data derived from the use of the Licensed Products for industry analysis, benchmarking, analytics, marketing, and other business purposes. All data collected, used, and disclosed will be in aggregate form only and will not identify Customer, its Authorized Users, Customer Data.
10.1. Each of the Parties agrees that it will not (i) disclose any Confidential Information of the other Party, except to those of its employees, sub-suppliers, officers, directors, contractors, Affiliates and/or all other external advisors that have a reasonable demonstrable legitimate need to know such information in light of such Party's rights and obligations hereunder, subject to each of them committing in writing to adequate confidentiality obligations prior to being granted access to such Confidential Information and subject to any other conditions and restrictions set out in the Agreement, or (ii) use any Confidential Information of the other Party for its own benefit or that of any third party, except as expressly permitted under the Agreement.
10.2. Each of the Parties shall ensure that each person who receives Confidential Information is made aware of and complies with these confidentiality obligations. Each of the Parties shall be responsible and liable towards the other Party for a breach of these confidentiality obligations by any party acting under their control or on their behalf or to which they otherwise provided Confidential Information.
10.3. Shall not be considered Confidential Information, information which:
(a) is in the public domain at the time of disclosure by the disclosing Party or subsequently falls into the public domain through no breach of this Article 10 by the receiving Party, provided that the Customer acknowledges and agrees that Confidential Information of Luzmo shall not be deemed to be in the public domain merely because any part of said information is embodied in general disclosures or because individual features, components or combinations thereof are known, or become, known to the public, through whatever means, including through means of the supply or commercialization of products or services based on or related to such Confidential Information;
(b) can be proven to the reasonable satisfaction of the disclosing Party to be lawfully in the receiving Party's possession prior to any disclosure by the disclosing Party and without an obligation of confidentiality towards the disclosing Party;
(c ) can be proven to the reasonable satisfaction of the disclosing Party to be lawfully obtained from a third party which was not under an obligation of confidentiality towards the disclosing Party; or
(d) can be proven to the reasonable satisfaction of the disclosing Party to be independently developed by the receiving Party, without access or reference to, or use of, the disclosing Party's Confidential Information.
10.4. Parties' confidentiality obligations shall survive any termination of the Agreement for a period of five (5) years. Upon termination of the Agreement or upon disclosing Party's earlier written request, the receiving Party shall promptly destroy or return to the disclosing Party all Confidential Information of the disclosing Party in its possession or under its control and shall certify in writing its compliance with the foregoing.
11.1. In consideration for the Licensed Product and the rights granted pursuant to Article 3, the Customer agrees to pay to Luzmo the License Fee. The License Fee is composed of (i) a recurring fixed fee based on the Plan Customer chooses in the Order Form (the "Fixed Fee") and (ii) a fee relating to extra use not included in the Plan chosen (the "Variable Fee").
11.2. Both the Fixed Fee and the Variable Fee are agreed upon between the Customer and Luzmo in the Order Form.
11.2.1. Fixed Fee
(a) The Licensed Product is available under four Plans that offer different features and usage limits and which amount to different Fixed Fees.
(b) The Fixed Fees, usage and features associated with the Plans are set out in the Order Form.
(c ) Customer may upgrade between two Plans.
(d) When Customer upgrades, the new Plan and related Fixed Fee becomes immediately applicable. Upon upgrade, the new Fixed Fee for the subsisting invoicing period would be charged on pro-rated basis and the Variable Fee will be computed based on the limits of the upgraded Plan. Subsequent invoicing periods will be charged in full according to the new Fixed Fee.
11.2.2. Variable Fee
(a) If Customer goes beyond any usage limits included in the Plan chosen, a Variable Fee shall be due, which monthly amount is set out in the Order Form.
(b) The Variable Fee shall be invoiced monthly, with the first invoice being issued at the end of the then current calendar month.
(c ) If the total of the Fixed Fee and Variable Fee for a given month exceeds the Fixed Fee of an upgrade Plan, Customer will be notified automatically and given the option to switch to this upgrade Plan in accordance with article 11.2.1.
11.3. Luzmo does not offer a guarantee of price stability over any specific duration, as pricing is contingent upon factors such as price inflation, market conditions, and operational considerations across various countries where Luzmo operates. In the event of a price adjustment, Luzmo commits to notifying its existing customers a minimum of 3 months prior to the implementation of new prices. Any modifications to license fees will exclusively take effect on the contract's renewal date.
Customer may subscribe to Add-On Modules against payment of the fees detailed in the Order Form (the “Add-On Fee”) or request Luzmo to provide Additional Services of which the details and scope are set forth in the Order Form as well (the “Additional Service Fees”).
13.1. Luzmo shall start invoicing Customer as of the Effective Date when Customer subscribes to the Licensed Products, Add-On Modules (and any renewal thereof made in accordance with article 17.2) and/ or Additional Services. Following invoices will be issued according to the frequency indicated in the relevant Order Form. Invoices shall be issued at the beginning of each invoicing period. Variable Fees shall be invoiced during the invoice period following the one during which they were incurred. A copy of any invoice provided by Luzmo is always available in the "Owner Luzmo account".
13.2. Invoices are issued in the currency indicated in the Order Form. Invoices are due and payable by the Customer within fourteen (14) calendar days from the invoice date. The amount of any invoice which has not been paid within fourteen (14) calendar days from the invoice date shall automatically be subject to a late payment interest amounting to 10% per annum.
In addition, the Customer shall pay all costs incurred by Luzmo as a result of the (extra)judicial enforcement of the Customer's payment obligations hereunder.
13.3. If the Customer fails to pay any outstanding amounts within thirty (30) calendar days from receipt of a written payment default notice, Luzmo may terminate the Agreement, or alternatively, at its sole discretion, suspend its obligations and/or the Customer's user rights granted hereunder by written notice to the Customer until receipt of payment of such outstanding amounts.
13.4. If the Customer disputes any portion of an invoice, the Customer shall notify Luzmo within five (5) calendar days from the invoice date of the nature of any such dispute, the basis for the Customer's dispute and the amount involved, together with any appropriate information supporting Customer's position, failure of which shall result in the invoice being deemed accepted by the Customer. In any event, the undisputed portion of the invoice shall be paid as set forth herein.
13.5. Unless otherwise specified in this Agreement, all License Fees are non-refundable. No refunds shall be issued for partial use or non-use of the Licensed Products by Customer.
13.6. The License Fees do not include any taxes, including value-added tax or withholding taxes. Luzmo will invoice Customer for such taxes if it believes it has a legal obligation to do so and Customer agrees to pay such taxes if so invoiced.
14.1. Luzmo represents and warrants to the Customer the following:
(a) except as expressly set forth in this Article 14 and to the maximum extent permitted by applicable law, the Licensed Products are provided "as is." The express warranties set forth in this Article 14 are the only warranties made by Luzmo with respect to the Licensed Products or any materials or services provided by Luzmo in connection with the Agreement. Luzmo makes no (and hereby disclaims all) other warranties, covenants or representations or conditions, either written, oral, express or implied, including without limitation any implied warranties of merchantability, suitability and fitness for a particular purpose or use with respect to the use, misuse or inability to use the Licensed Products (in whole or in part) or any other products or services provided by Luzmo. Luzmo makes no warranty with respect to any hardware, software or product of any third party. All use of and reliance by the Customer on the Licensed Products or services provided by Luzmo under the Agreement are at the sole risk of Customer. Luzmo does not guarantee the accuracy and the correctness of the results generated by the use of such services and/or the Licensed Products;
(b) Luzmo warrants and guarantees that the services provided under this Agreement shall be carried out in a proper and professional manner by properly qualified personnel;
(c ) Luzmo will do its best effort to warrant that the use of the Licensed Product provided to the Customer by Luzmo will be uninterrupted;
(d) to the best of Luzmo's knowledge, the Licensed Products do not, upon delivery to the Customer, contain any Virus and Luzmo shall not knowingly program into any of the Licensed Products any Virus or other software routine designed to permit unauthorized access to any of Customer's computer systems or to disable, erase or otherwise cause damage to the Software, hardware or data or any back door, time bomb, software lockout key or device, drop dead device, or other software routine designed to disable a computer, either automatically or with the passage of time or under the control of any person, unless any such software routine is expressly requested in writing by the Customer. It being understood that Customer will perform the necessary checks and scans to ascertain this representation;
(e) Luzmo warrants that the use of the Licensed Product will meet the applicable servicelevels in the event Customer subscribed to the "Service Levels & Credits" Add-On Module; and
(f) the Licensed Products may include gateways, links or other functionality that allows Customer to access third party services ("Third Party Services") and/or third party content and materials ("Third Party Materials"). Luzmo does not supply and is not responsible for any Third Party Services or Third Party Materials, which may be subject to their own licenses, end-user agreements, privacy and security policies, and/or terms of use. Luzmo MAKES NO WARRANTY AS TO THIRD PARTY SERVICES OR THIRD PARTY MATERIALS.
14.2. Each Party represents and warrants to the other the following:
(a) it is duly organized, validly existing and in good standing under the laws of its incorporation and has all requisite power and authority to execute and deliver the Agreement, to perform its obligations hereunder and to engage in the transactions contemplated thereby;
(b) the execution, delivery and performance of the Agreement have been duly authorized by all requisite action on the part of such Party and the Agreement constitutes the legal, valid and binding obligation of such Party, enforceable in accordance with its terms;
(c ) the execution, delivery and performance of the Agreement by each Party do not, to the best of its knowledge (i) violate any judgment, order, injunction, decree or award of any court or governmental body binding on such Party, (ii) violate any law or regulation that is applicable to such Party, or (iii) violate or conflict with, or constitute a default under, the terms of any agreement to which such Party is a party. If at any time during the Agreement, a Party notices or suspects that wrong assumptions have been made or any of these warranties prove incorrect, it shall promptly inform the other Party thereof in writing.
15.1. Luzmo shall defend and indemnify the Customer against any founded and well-substantiated claims brought by third parties for any infringement to such third party's Intellectual Property Rights in Europe and in the United States and excluding any claims resulting from (i) the Customer's unauthorized use of the Licensed Products, (ii) the Customer or any third party's modification of any of the Licensed Products, (iii) Customer's use of the Licensed Products in combination with any non Luzmo products or services, or (iv) the Licensed Products having been developed to the Customer's design or incorporating documents, materials, ideas, data or other information, provided by or on behalf of the Customer. The exclusions and limitations of liability under this Article shall operate to the benefit of Luzmo's Affiliates and subcontractors to the same extent such provisions operate to the benefit of Luzmo.
15.2. Luzmo's indemnity obligation shall be conditional upon the following: (i) Luzmo is given prompt written notice of any claim, (ii) Luzmo is granted sole control of the defense and settlement of such a claim, (iii) upon Luzmo's request, the Customer fully cooperates with Luzmo in the defense and settlement of such a claim, at Luzmo's expense and (iv) the Customer makes no admission as to Luzmo's liability in respect of such a claim, nor does the Customer agree to any settlement in respect of such a claim without Luzmo's prior written consent. Provided these conditions are met, Luzmo shall indemnify the Customer for the damages and costs incurred by the Customer as a result of such a claim, as awarded by a competent court of final instance, or as agreed to by Luzmo pursuant to a settlement agreement.
15.3. In the event the Licensed Products, in Luzmo's reasonable opinion, are likely to or become the subject of a third-party infringement claim (as per Article 15.1), Luzmo shall have the right, at its sole option and expense, to: (i) modify the (allegedly) infringing part of the Licensed Products so that they become non-infringing while preserving equivalent functionality, (ii) obtain for the Customer a license to continue using the Licensed Products or (iii) terminate the relevant license and pay to the Customer an amount equal to a pro rata portion of the License Fee paid to Luzmo for that portion of the Licensed Products which is the subject of such infringement.
15.4. The indemnity provided in article 15.2 and remedies provided in article 15.3 are the entire liability and obligation of Luzmo and the sole remedy of the Customer with respect to any infringement or alleged infringement of any Intellectual Property Rights caused by the Licensed Products or any part thereof.
16.1. To the maximum extent permitted by applicable law, Luzmo excludes any and all liability (whether in contract, warranty, tort (including as a result of negligence, product liability or other theory)) or otherwise to the Customer or any third person for any indirect, punitive, incidental, special or consequential or other similar damages (including damages for loss of profit, revenue, business, contracts or clients, loss of or corruption of data, loss of goodwill, damages to equipment and reputational damage, opportunity loss, loss of anticipated savings, and the cost of procuring replacement goods or services), even if Luzmo has been advised or notified of the possibility of such costs or damages.
16.2. Without prejudice to and without limiting Article 16.1, Luzmo's aggregate liability arising out of or in connection with the Agreement or the transactions contemplated hereby, whether in contract, warranty, tort (including negligence, product liability or other theory), or otherwise, shall not exceed the total License Fees (excl. taxes) paid by the Customer to Luzmo pursuant to this Agreement during the twelve (12) month period preceding the date on which the applicable liability claim arose.
16.3. The Customer agrees that Luzmo can only be held liable as per the terms of this Article 16 to the extent damages suffered by the Customer are directly and solely attributable to Luzmo. However, nothing in the Agreement shall limit or exclude Luzmo's liability for (i) gross negligence, (ii) willful misconduct, (iii) fraud.
16.4. The limitations provided for in this section 16 shall not apply to Luzmo's indemnification and remedies obligations provided for in article 15.
17.1. This Agreement enters into force on the Effective Date of the relevant Order Form and shall remain in effect for the term specified in such Order Form, including all renewals thereto (the "Term").
17.2. Subscription to the Licensed Products and Add-On Modules shall be tacitly renewed for successive terms equivalent in length to the then expiring Term, unless either Party gives the other Party written notice of its intent not to renew the Term at least thirty (30) calendar days prior to the expiration of the then current Term. Unless otherwise provided for in any Order Form, the Fixed Fee and Variable Fee (if any) applicable to Customer's subscription to the Licensed Products for any such subsequent Term shall be based on the Plan to which Customer has subscribed as of the time such subsequent Term commences.
17.3. In the case of an Order Form for Additional Services, if no end date is specified in the Order Form, then the Order Form shall expire upon completion of Additional Services or early termination as permitted by this Agreement.
17.4. The term of this Agreement shall continue as long as an Order Form referencing this Agreement remains valid and in effect. Prior to the Order Form Start Date, Luzmo may, upon mutual agreement, start providing Additional Services and/or provide Customer access to the Licensed Products/Add-On Modules, which will be governed by this Agreement. Termination or expiration of any Order Form or shall leave other Order Forms unaffected.
17.5. Parties agree that this Agreement can be terminated, without prior notice in the event the other Party:
17.6. Either Party will be entitled to terminate the Agreement by written notice in the event the other Party commits a material and persistent breach under the Agreement (other than as a result of a Force Majeure (as defined hereinafter)), including but not limited to the timely performance of any payment obligations under the Agreement. "Force Majeure" will be understood as being an Act of God, fire, casualty, flood, earthquake, cyberattacks, war, strike, epidemic, pandemic, destruction of production facilities, riot, acts of government, insurrection, material unavailability, interruption in supply of electricity, labor disputes, lock-out telecommunications, network, computer, server or internet downtime or any and all other unforeseen and unforeseeable events beyond a Party's control.
17.7. Where any default or failure can be remedied, the non-defaulting Party should give written notice to the defaulting Party of such alleged default or failure and allow for a period of thirty (30) calendar days to remedy the same to the reasonable satisfaction of the non-defaulting Party. If the default or failure is not remedied at the end of said notice period, the non-defaulting Party is allowed to terminate the Agreement immediately upon written notice.
17.8. Upon termination of the Agreement for any reason whatsoever the Customer shall promptly pay Luzmo all feescovering the full term of the Agreement, except in the event of a termination by the Customer pursuant to Articles 17.5 or 17.6, in which case the Customer must promptly pay to Luzmo all fees and other amounts payable hereunder up to the actual termination date.The licenses and user rights with respect to the Licensed Products granted to the Customer pursuant to this Agreement shall automatically terminate and the Customer shall return to Luzmo or destroy all copies (in whatever form or medium) of the Licensed Products and the Confidential Information of Luzmo that are in the possession or under control of the Customer. Luzmo's obligation to provide any further services to Customer under this Agreement will immediately terminate, except any such services that are expressly to be provided following the expiration or termination of this Agreement.
17.9. The provisions of these General Terms that are expressly or implicitly intended to survive termination, including but not limited to, Articles 9, 10, 13, 14, 15, 16, 17 and 18 shall survive any expiration or termination of the Agreement.
18.1. Each Party shall comply with any obligations under the General Data Protection Regulation 2016/679 (the GDPR) and other applicable privacy laws with respect to the processing of Personal Data in the performance of this Agreement.
18.2. In connection with and for the purpose of the performance of its obligations (including but not limited to the provision of the Services) under this Agreement, Luzmo will process Personal Data on behalf of Customer in accordance with the Data Processing Agreement, available on your profile page under Legal Info. This Personal Data may include, but is not limited to Personal Data of Customer as well as of Authorized Users. Customer shall ensure that it has properly informed in accordance with articles 12, 13 and 14 of the GDPR those whose Personal Data is being processed and that the Personal Data that it supplies or discloses to Luzmo has been obtained fairly and lawfully and that it has, to the extent necessary, obtained all necessary consent of those whose Personal Data is being processed.
18.3. Each Party shall ensure that its personnel and (sub)contractors shall, at all times, comply with its/their respective obligations under the GDPR and other applicable privacy laws and the Data Processing Agreement available on your profile page under Legal Info.
19.1. All notices, requests, consents, demands and other communications addressed to the receiving Party's address as set forth below or to such other address as a Party may designate by notice hereunder, and either (i) sent by e-mail, or (ii) delivered by hand, or (iii) sent by registered or certified mail, return receipt requested, postage prepaid:
All notices shall be deemed to have been given either (i) by email, or (ii) if by hand, at the time of actual delivery thereof to the receiving Party at such Party's address as provided above, as reasonably demonstrated by the Party serving notice, or (ii) if sent by registered or certified mail, twenty-four (24) hours following the day such mailing is made.
19.2. No announcements regarding the Agreement or its subject- or ancillary matter will be made by any Party except as required by law, without the prior written approval of the other Party, such approval is not to be unreasonably withheld or delayed.
19.3. Each of the Parties to the Agreement shall bear its own costs and expenses in connection with the drafting and negotiation of the Agreement.
19.4. The Parties are independent contractors. This Agreement does not create any partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties.
19.5. The Customer may not assign or transfer the Agreement to any third party (including without limitation its Affiliates) without the prior written consent of Luzmo, such consent not to be unreasonably withheld, but which consent may be made subject by Luzmo (acting reasonably and in good faith) to payment of additional fees. Luzmo shall be free to transfer or assign (part of) the Agreement to one of its Affiliates. Luzmo shall also be free to subcontract performance of its obligations under the Agreement to its Affiliates, to individual contractors and to third party service providers without having to obtain the Customer's prior consent, provided that Luzmo shall remain responsible towards the Customer in respect of such subcontracted services.
19.6. The present Agreement shall be governed by the laws of the State of New York without regard to its conflict laws provisions. Any disputes relating to or arising in connection with any Agreement entered into by Luzmo Inc shall be finally settled in arbitration under the Rules of Arbitration of the International Chamber of Commerce (“ICC”) by one (1) arbitrator appointed in accordance with the said Rules. The award shall be final and binding on the Parties hereto and enforceable in any court of competent jurisdiction. The arbitration shall be held in New York in the English language. Parties undertake and agree that all arbitral proceedings conducted with reference to this Article shall be kept strictly confidential and all information disclosed in the course of such arbitral proceedings shall be used solely for the purpose of those proceedings.
19.7. If a court of competent jurisdiction determines any provision, or any portion thereof, of the Agreement to be unenforceable or invalid, then such provision shall be deemed limited to the extent that such court deems it valid or enforceable and the remaining provisions of the Agreement shall nevertheless remain in full force and effect. The Parties agree in such case to start good faith negotiations in order to substitute such invalid or unenforceable provision by a like provision to accomplish the intent of Parties to the extent permitted by applicable law.
19.8. No failure or delay by a Party hereto in exercising any right, power or remedy under the Agreement, and no course of dealing between the Parties hereto, shall operate as a waiver of any such right, power or remedy of the Party. No single or partial exercise of any right, power or remedy under the Agreement by a Party hereto, nor any abandonment or discontinuance of steps to enforce any such right, power or remedy, shall preclude such Party from any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The election of any remedy by a Party hereto shall not constitute a waiver of the right of such Party to pursue other available remedies.
19.9. As of the Effective Date, Luzmo shall be entitled to refer to the Customer as a Customer in all of its commercial and marketing documentation and client listings, as a sales reference, as well as on Luzmo's website.
