Terms of Service
 Luminarity AG | Terms of Service for the Product Data Intelligence Luminarity.aiLast Updated: 12.06.2025 |
Luminarity AG, TERMS OF SERVICE AGREEMENT
This Terms of Service Agreement (the "Agreement") is entered into as of the Effective Date by and between Luminarity AG, a swiss corporation having a principal place of business at Marktgasse 7, 8640 Rapperswil in Switzerland and End User. Luminarity AG and End User are sometimes referred to herein individually as a "Party" or collectively as the "Parties". The Parties hereby agree as follows:
BY DOWNLOADING, INSTALLING, REGISTERING, ACCESSING, EVALUATING OR OTHERWISE USING OF LUMINARITY-PRODUCTS, THE END USER ACKNOWLEDGES AND AGREES, THAT IT IS BOUND TO THIS AGREEMENT. IF THE END USER DOES NOT ACCEPT ALL THE FOREGOING TERMS, IMMEDIATELY CEASE USING OR ACCESSING THE LUMINARITY PRODUCTS.
TERMS OF SERVICE
1. Definitions
The following capitalized terms shall have the meanings set forth below. Other terms are defined elsewhere in this Agreement:
"Administrative Data" means personally identifiable information about End User and its users that may be uploaded during registration or account administration and information provided during support requests.
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"CONNector" refers to a software that is used as a plug-in on existing end-user software (e.g., 3D CAD system, PLM system, ERP system) and executes the software.
"Effective Date" means the date this Agreement first become binding on LUMINARITY and End User, which shall be the earliest of (i) the latest signature date set forth below, (ii) the date both parties otherwise agree to these Terms of Service, (iii) the date End User or its Affiliate places an Order under these Terms of Service, or (iv) the date on which End User first downloads, installs, registers, accesses, evaluates or otherwise uses any Product.
"End User" means, as the context requires, in addition to the entity agreeing to this Agreement, any End User Affiliate that places an Order under this Agreement, or otherwise uses or accesses any Product hereunder on behalf of End User.
"End User Data" means data that may be accessed or collected by Products during the relationship governed by this Agreement, in the form of logs, session data, telemetry, user data, usage data, system stability data, user experience data, user interface data, and Product descriptive data. End User Data may include confidential data and personal data, such as part dimensions, material class, suppliers, purchase information, file names, and thumbnails of CAD 2D drawings and 3D models.
"Product descriptive data" means any representation of parts (sheetmetal, milling, turning,…), such as 2D drawings, 3D models or purchase orders from the End User's product portfolio.
"UPR" refers to the result of the Luminarity Data-Mining process. A “UPR – Unified Part Representation” consists of several parameters that are read from input data like 2D documents, 3D CAD files, and other input data.
"Order" means any purchase order or other ordering document accepted by LUMINARITY or a reseller, that specifies Trial Product(s) or Product(s) to be provided under this Agreement.
"Product(s)" means the LUMINARITY services offering(s) set forth in an Order that may consist of CONNector(s), Software, Subscriptions, and/or Professional Services.
"Professional Services" means any services performed by LUMINARITY for End User pursuant to a statement of work ("SOW"), other Order, service brief or data sheet.
"Schedule" sets forth terms and conditions that apply specifically to certain types of LUMINARITY offerings, which may be different than, or in addition to these Terms of Service. Schedules are incorporated into this Agreement.
"Software" means the executable code version of LUMINARITY's software products set forth in the Order and any updates thereto furnished by LUMINARITY under this Agreement.
"Subscriptions" means subscription-based Software or services provided by LUMINARITY to End User for a fixed or recurring period, subject to subscription fees for each such period as set forth in the Order.
"Trial Products" mean the Products that LUMINARITY or its authorized representative makes available to End User for evaluation purposes.
2. Scope
2.1 This Agreement governs End User's purchase and use of LUMINARITY Products, however they were acquired, including without limitation via a LUMINARITY authorized distributor or reseller.
2.2 This Agreement covers all LUMINARITY Products but provisions regarding specific products or services shall be found in the attached Schedules and apply only to the extent that End User has purchased, accessed or used such products or services.
2.3 Authorized LUMINARITY Resellers. For any Products acquired by End User through an authorized LUMINARITY reseller, the following provisions of these Terms of Service shall not apply: Sections 3.1 and 5.1-5.4. While LUMINARITY shall remain the "licensor" for purposes of the grant of the licenses and other rights hereunder, and End User shall remain the "licensee" for purposes of the obligations contained herein, End User shall contract directly with the authorized LUMINARITY reseller for the purchase of Products provided by such authorized LUMINARITY reseller.
3. Access and Use Rights
3.1 Software License. This section 3.1 applies to Software only. Subject to the terms and conditions of these Terms of Service (including LUMINARITY'S receipt of applicable fees), LUMINARITY grants to End User a nonexclusive, nontransferable, limited license to use the Software in accordance with the published specifications for the Product solely for End User's internal use pursuant to the applicable Subscription/Order terms. LUMINARITY expressly reserves all other rights in the Software.
3.2 Subscriptions. This section 3.2 applies to Subscriptions only. LUMINARITY grants to End User a non-exclusive right to access the Subscriptions solely for End User's internal use pursuant to the applicable Subscription/Order terms. The Subscriptions will commence on the Effective Date (or other applicable start date specified in the Order) and will continue for the period set forth in the Order (the "Initial Subscription Term"). The Subscriptions will automatically renew at the end of the Initial Subscription Term and any subsequent term for a renewal term of one (1) year (each a "Renewal Subscription Term," and together with the Initial Subscription Term, the "Subscription Term") unless either party has provided written notice of non-renewal of the applicable Subscription at least sixty (60) days prior to the end of the then-current term. All renewals are subject to payment of applicable subscriptions fees as set forth in Section 5 below. LUMINARITY expressly reserves all other rights to the Subscriptions. All Subscription Orders are non-cancelable and nonrefundable.
3.3 Evaluation. If LUMINARITY provides any Trial Products under this Agreement, the Trial Products may only be used for evaluation purposes in a non-production environment. End User may evaluate the Trial Products for up to thirty (90) days or such longer period as may be approved in writing by LUMINARITY in its sole discretion ("Evaluation Period"). Any rights to use the Trial Products beyond the scope of this Agreement will be subject to a separate written agreement between LUMINARITY and End User. LUMINARITY may, at its option, provide reasonable support for the Trial Products to facilitate End User's ability to evaluate such technology, but shall have no obligation to provide any such support. During the Evaluation Period, LUMINARITY may, at its sole discretion, limit certain functionality or features of the Trial Products. Unless End User has purchased and licensed the Trial Products (such that they are Products hereunder, at the end of the Evaluation Period, End User shall discontinue all use of such Trial Products at the end of the Evaluation Period.
3.4 Restrictions. End User shall not (and shall not permit, encourage or assist any third party to): (i) copy, modify, translate, reverse engineer, decompile, disassemble or otherwise reduce the Software or Subscriptions to human perceivable form or attempt to discover underlying source code, algorithms or techniques, except to the extent that such activities may not be prohibited under applicable law; (ii) sell, resell, distribute, transfer, publish, disclose, rent, lend, lease or sublicense the Products to any third party; (iii) disclose any benchmarking, competitive analysis or other results obtained from any Product or use any Product or portion thereof to develop any similar item or any competitive products or services; (iv) use or remove the applicable Software for which they are provided under the applicable Order; (v) attempt to disable or circumvent any license key, encryption or other security device or mechanism used in connection with the Products; (vi) remove or otherwise interfere with any portion of the Products designed to monitor End User's compliance with this Agreement; or (vii) otherwise use the Products in any manner not authorized by the published specifications for the applicable Products. End User acknowledges that Software and Subscriptions may include license keys and other features that disable use at the end of the applicable license or Subscription Term, or once the service level set forth in the Order is met.
3.5 Proprietary Rights. The Software and Subscriptions are licensed and not sold. LUMINARITY shall retain ownership of all Software and Subscriptions and all intellectual property rights relating thereto, including but not limited to copyrights, patents, trade secret rights, trademarks and any other intellectual property rights therein. End User agrees that LUMINARITY may use and exploit without restriction any error reports, suggestions and other information provided by End User with respect to the Products and shall own any fixes, modifications, improvements and new versions made by LUMINARITY based on such information. The Products, documentation and other non-public information provided by LUMINARITY, and the terms of this Agreement, are confidential to LUMINARITY and shall not be disclosed by End User to any third party. Products may contain certain software or portions provided under terms and conditions different from this Agreement (such as open source or community source), which may be identified in a text file or about box or in a file or files referenced thereby, and End User agrees that such software or portions will be subject to such other terms and conditions to the extent inconsistent with this Agreement, or to the extent required by such other terms and conditions. All implied licenses are disclaimed, and all rights not expressly granted herein are reserved to LUMINARITY.
3.6 End User Proprietary Rights. Subject to the limited rights expressly granted hereunder, End User reserves all rights, title and interest in and to all End User Data, including all related Intellectual Property Rights. As between End User and LUMINARITY, End User shall retain ownership of all End User Data. No rights are granted to LUMINARITY under this Agreement other than the limited licenses expressly set forth in this Agreement. End User hereby grants to LUMINARITY and its authorized third-party service providers the worldwide, nonexclusive, fully paid-up, royalty-free license to access, use, copy, distribute, perform, display and process End User Data to provide, maintain, and improve the Products and perform its obligations under this Agreement and as otherwise directed, requested, or permitted in writing by End User.
3.7 Feedback. To the extent that End User provides LUMINARITY with any suggestions, ideas, enhancement requests, recommendations, or other feedback or information relating to the Products (collectively, "Feedback"), End User hereby grants to LUMINARITY and its Affiliates a fully paid-up, royalty free, worldwide, perpetual, irrevocable license to freely use, disclose, and otherwise exploit such Feedback, including but not limited to incorporation of the Feedback into future versions of the Products.
4. Processing as Data Processor
4.1 Data Processing. Subject to the following types of access described below, End User acknowledges, agrees and grants to LUMINARITY the right, to the extent permitted by applicable law, to process and retain data received from use of the Product including End User Data, for the following purposes: (i) providing service to End User; (ii) analyzing, maintaining and improving LUMINARITY's products and services; and (iii) complying with legal, governmental or contractual terms. To the extent that LUMINARITY processes personal data on behalf of End User as a processor in the meaning given in EU data protection law, it will do so in accordance with Sections 4.2-4.9, and the Data Processing Agreement ("DPA") located at luminarity_data_processing_agreement.pdf. In the event of a conflict between the terms of this Agreement and the DPA, the terms of the DPA shall prevail.
a) Default Access. End User hereby authorizes and directs LUMINARITY to store, process, retrieve, and disclose the End User Data for the purpose of providing the Product to End User or otherwise meeting its obligations hereunder and as otherwise required by law. LUMINARITY may monitor and access: (i) System stability data, including uptime statistics for various processes; software error indicators; backtrace and call stack data; (ii) connectivity data; and (iii) product descriptive data, including: (I) geometrical part properties, (II) manufacturing part properties (III) purchase part properties.
b) User Experience Data Access. As set forth in the Order or as End User otherwise elects during the installation, configuration or use of the Products, LUMINARITY may (in addition to the End User Data set forth in Sections 4.1a) receive anonymized user experience data, including the last login time; the frequency of logins; and user interface clickstream data.
4.2 Data Processor. To the extent LUMINARITY processes personal data on behalf of End User as a processor as defined by EU data protection law, it shall do so only in furtherance of providing the Products to End User pursuant to this Agreement and as permitted by applicable law.
4.3 Confidentiality of Personal Data. LUMINARITY will ensure that personnel it authorizes to process personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
4.4 Sub-Processors. End User authorizes LUMINARITY to engage sub-processors, as described in the applicable Product documentation for the relevant Product, to process personal data. In the event LUMINARITY engages any new sub-processor it will: (i) update the applicable documentation; (ii) notify End Users that have opted in to receive compliance notification of such change to give End User the opportunity to object to such sub-processing; (iii) impose appropriate contractual obligations upon the sub-processor that are no less protective than this Section 4; and (iv) remain responsible for the sub-processor's compliance with this Agreement and for any acts or omissions of the sub-processor that cause LUMINARITY to breach any of its obligations under this Agreement. If End User objects to a new sub-processor, it must do so in writing within fifteen (15) days of such update and LUMINARITY will then endeavor to offer alternate options for the delivery of Products that do not involve the new sub-processor without prejudice to any of End User's termination rights.
4.5 Administrative Data Access Consent. LUMINARITY may use End User Administrative Data for the following purposes: (a) to inform End User about products, seminars and services LUMINARITY believes may be of interest to End User; (b) to contact End User if LUMINARITY needs to obtain or provide additional information; and (c) to verify the accuracy of LUMINARITY's records. LUMINARITY may use web analytics and cookies as set forth in the LUMINARITY Privacy Policy available online at https://luminarity.ai/en/data-protection which LUMINARITY may amend from time to time in compliance with applicable laws and regulations. To the extent that LUMINARITY processes personal data on behalf of End User, it will do so in accordance with Sections 4.2-4.9.
4.6 End User Conduct; Compliance. End User is responsible for use of the Products by its Affiliates and other users and for their compliance with this Agreement. End User is solely responsible for the accuracy, quality, legality, reliability and appropriateness of all End User Data, and for providing any notices and obtaining any consents and authorizations necessary: (i) to allow the Administrator to access, monitor, use and disclose the End User Data; and (ii) to allow LUMINARITY to access the End User Data. End User shall ensure that End User is entitled to make End User Data accessible to LUMINARITY so that LUMINARITY and its service providers may lawfully use, process and transfer the End User Data in accordance with this Agreement on End User's behalf. End User will promptly notify LUMINARITY if it becomes aware of any unauthorized use of or access to End User's account or the Products.
4.7 Data Protection by End User. End User represents and warrants that End User's use of the Products complies with all applicable laws, including those related to data privacy, data security, and international communications and that End User has obtained all consents necessary for LUMINARITY to engage in data processing under this Agreement. Submission or provision of End User Data to LUMINARITY shall be at End User's own risk, and LUMINARITY assumes no responsibility or liability for receipt of such End User Data.
5. Fees and Payments
5.1 Fees. End User will pay the fees for Products to LUMINARITY as set forth in the applicable Order. Subscription fees may be modified by LUMINARITY for each renewal period by written notice to End User at least thirty (30) days prior to the end of the then-current period.
5.2 Invoicing. All Subscription fees and maintenance fees invoiced by LUMINARITY shall be payable by End User prior to the start of the applicable Subscription and maintenance period. All other amounts will be invoiced as set forth in the Order, or if not specified, prior to commencement of the applicable licenses, services or renewals.
5.3 Payments. Any payments to LUMINARITY shall be due and payable within thirty (30) days after the date of invoice by LUMINARITY. Without limiting any other remedies, past due amounts shall be subject to a monthly charge of one and one-half percent (1½%) per month of the unpaid balance or the maximum rate allowable by law, whichever is less.
5.4 Taxes. Amounts payable to LUMINARITY under this Agreement are payable in full to LUMINARITY without reduction for taxes (including any withholding tax) or customs duties. In addition, End User shall be responsible for all taxes (including, without limitation, consumption sales, use, value-added and similar taxes) and customs duties paid or payable, however designated, levied, or based on amounts payable to LUMINARITY hereunder and any associated penalties, fines and attorneys' fees and local taxes based solely on LUMINARITY's net income.
5.5 Usage Based Billing. Fees which are paid for by usage (e.g., number of items, users, etc.) may be reconciled with actual usage at LUMINARITY's discretion. LUMINARITY reserves the right to perform true-up reconciliation and charge for any usage above the volume purchased.
5.6 Future Functionality. End User agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by LUMINARITY regarding future functionality or features.
5.7 Suspension of Account for Failure to Pay. LUMINARITY reserves the right to suspend End User's account, in addition to all its other rights and remedies, in the event that End User's account becomes overdue and is not brought current within ten (10) business days following notice of past due account from LUMINARITY. Such notice may be sent by email.
6. Term and Termination This Agreement shall commence as of the Effective Date and shall continue with respect to each Order until the end of the applicable Order term, unless earlier terminated. Either party may terminate this Agreement (or an applicable Order) in the event of breach by the other party that is not cured within thirty (30) days after notice (or ten (10) days for breach of payment or license restrictions). LUMINARITY may terminate this Agreement immediately upon End User becoming insolvent or generally failing to pay its debts as they become due, or commencing or becoming subject to reorganization, insolvency or liquidation proceedings or ceasing to conduct business in the ordinary course. Upon termination, all licenses and Subscriptions shall terminate, and End User shall return and cease all use of the Software and Subscriptions. Sections 3, 4.10, 4.11, 5, 7, 8, 9, 10, 11, 12, 13, and 15, Schedule 6 (Sections 3-6) and all payment obligations accruing prior to termination, will survive.
7. Warranty
7.1 Mutual Warranty. Each party represents and warrants that: (i) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (ii) it shall comply with all laws, rules, and regulations applicable to the exercise of its rights and performance of its obligations hereunder.
7.2 Limited Warranty a) As End User's sole remedy and LUMINARITY's exclusive liability with respect to breach of warranty, LUMINARITY shall, at LUMINARITY's sole option, (i) correct the Software; or (ii) correct the Subscriptions, as applicable. All warranty claims must be made in writing to LUMINARITY on or before the expiration of the applicable warranty period and LUMINARITY shall have a reasonable amount of time to remedy the defect.
8. Limitation of Liability
IN NO EVENT SHALL LUMINARITY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING COSTS OF PROCUREMENT OF SUBSTITUTE GOODS) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCTS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LUMINARITY'S TOTAL LIABILITY ARISING OUT OR RELATING TO THIS AGREEMENT OR ANY PRODUCTS WILL NOT EXCEED THE AMOUNT PAID FOR THE RESPECTIVE PRODUCTS TO WHICH THE CLAIM RELATES, REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE
9. Disclaimer EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, TO THE FULLEST EXTENT PERMITTED BY LAW, THE PRODUCTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND LUMINARITY AND ITS AFFILIATES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. END USER ACKNOWLEDGES THAT LUMINARITY DOES NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING SERVICE PROVIDERS.
10. Indemnity
10.1 LUMINARITY's Obligation. End User agrees that LUMINARITY has the right to defend, or at its option to settle, and LUMINARITY agrees, at its own expense, to defend or at its option settle, any third-party claim, suit or proceeding (collectively, "Action") brought against End User alleging the Products infringe any patent in existence as of the Effective Date, subject to the limitations set forth herein. LUMINARITY will have sole control of any such Action or settlement negotiations, and LUMINARITY agrees to pay, subject to the limitations set forth herein, any final judgment entered against End User on such issue in any such Action defended by LUMINARITY. End User agrees that LUMINARITY will be relieved of the foregoing obligations unless End User notifies LUMINARITY promptly in writing of such Action, gives LUMINARITY authority to proceed as contemplated herein, and gives LUMINARITY proper and full information and assistance to settle and/or defend any such Action.
10.2 End User Indemnity. End User will defend any action brought against LUMINARITY, its Affiliates, and its and their respective employees, contractors, agents, officers and directors to the extent based upon a third-party claim arising from or otherwise related to: (i) the End User Data; or (ii) any use of the Product by End User not authorized under this Agreement or in violation of law and will pay any costs, damages and reasonable attorneys' fees attributable to such Action that are finally awarded against LUMINARITY or agreed upon by End User in settlement.
10.3 Remedies. If it is adjudicatively determined, or if LUMINARITY believes, that the Products or any part thereof, infringe any patent, copyright or trademark, or if the sale or use of the Products, or any part thereof, is, as a result, enjoined, then LUMINARITY may, at its election, option and expense: (i) procure for End User the right under such patent, copyright or trademark to sell or use, as appropriate, the Products or such part thereof; (ii) replace the Products, or part thereof, with other noninfringing suitable Products or parts; (iii) suitably modify the Products or part thereof; or (iv) remove the Products, or part thereof, terminate distribution or sale thereof and refund the payments paid by End User for such Products less a reasonable amount for use and damage. LUMINARITY will not be liable for any costs or expenses incurred without its prior written authorization, or for any installation costs of any replaced Products.
10.4 Exclusions. LUMINARITY shall have no obligations under this Section 10 if the Action is based upon or arises out of: (i) any modification to the Product not made by LUMINARITY; (ii) any combination or use of the Product with or in any third-party software, process, firmware, or data, to the extent that such claim is based on such combination or use; (iii) End User's continued use of the allegedly infringing Product after being notified of the infringement claim or after being provided a modified version of the Product by LUMINARITY at no additional cost that is intended to address such alleged infringement; (iv) End User's failure to use the Product in accordance with the applicable Product specifications; and/or (v) End User's use of the Product outside the scope of the rights granted under this Agreement.
10.5 Exclusive Remedy. THE REMEDIES SPECIFIED IN THIS SECTION CONSTITUTE END USER'S SOLE AND EXCLUSIVE REMEDIES, AND LUMINARITY'S ENTIRE LIABILITY, WITH RESPECT TO ANY INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
11. Confidentiality
11.1 Confidential Information. The term "Confidential Information" includes all information, software and data furnished by either party and with respect to the either party includes information furnished by the disclosing party (the "Discloser") to the other party (the "Recipient"), whether in oral, written, graphic or machine-readable form, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation materials, documentation, designs, improvements, formulae, discoveries, inventions, networks, concepts, ideas, technical information and procedures, legal, financial or business affairs, markets, products, key personnel, suppliers, policies or operational methods, plans for future developments for the business of the Discloser, and all other information disclosed to the Recipient by the Discloser that is not readily available to the public, and all copies of the foregoing. In addition to the foregoing, Confidential Information of LUMINARITY will also include (i) all information relating to the Products, including but not limited to information relating to the performance, reliability, and stability of the Products (including availability, uptime, and performance benchmarks), operation of the Products, knowhow, techniques, processes, ideas, algorithms, and Product design and architectures, and all documentation related to the Products.
11.2 Non-Confidential Information. Notwithstanding the foregoing, Confidential Information will not include information that: (i) has entered the public domain through no action or failure to act of the Recipient; (ii) prior to disclosure hereunder was already lawfully in Recipient's possession without any obligation of confidentiality; (iii) subsequent to disclosure hereunder is obtained by the Recipient on a non-confidential basis from a third party who has the right to disclose such information to the Recipient; (iv) is approved in writing by the Discloser for disclosure by the Recipient; (v) is provided by the Discloser to a third party without a confidentiality restriction; or (iv) is independently developed by the Recipient without reference to the Discloser's Confidential Information.
11.3 Obligations of Non-Disclosure. The Recipient will safeguard the Confidential Information of the Discloser with at least the same degree of care that it utilizes to safeguard its own Confidential Information of like kind, but in any event not less than a reasonable degree of care. The Recipient agrees (a) not to disclose the Confidential Information of the Discloser to any third parties (except for its employees, Affiliates, subcontractors, or professional advisors who are bound by an obligation of confidentiality no less restrictive than this provision) in the breach of the foregoing sentence, and (b) to use the Confidential Information solely for the purpose of performing its obligations and exercising its rights under this Agreement. The Recipient will not remove or alter any copyright, trademark, service mark or other proprietary rights notice attached to or included in any Confidential Information furnished by Discloser.
11.4 Return of Confidential Information. Each Recipient will destroy or return to Discloser all Confidential Information of the Discloser that the Recipient possesses upon the expiration or termination of this Agreement; provided, however, that to the extent that copies of Confidential Information are contained in the Recipient's off-site backup data storage archives and are not readily accessible for deletion, the Recipient will not be obligated to delete such copies so long as it does not willfully attempt to access such Confidential Information and continues to comply with the confidentiality restrictions set forth herein.
11.5 Compelled Disclosure. If the Recipient is compelled by law, regulation or a court of competent jurisdiction to disclose any of the Discloser's Confidential Information then, to the extent permitted by law, the Recipient will promptly notify the Discloser so that it may seek a protective order or other appropriate remedy. The Recipient will provide reasonable cooperation at the Discloser's expense in seeking such order or other remedy. If disclosure is ultimately required, the Recipient will furnish only that portion of the Confidential Information that is legally required, exercise reasonable efforts to obtain assurance that it will receive confidential treatment and will continue to treat such Confidential Information in accordance with its obligations under this provision.
11.6 Injunctive Relief. Each party acknowledges that the Discloser may be irreparably harmed if Recipient's obligations hereunder are not specifically enforced, and that Discloser may not have an adequate remedy at law in the event of an actual or threatened violation hereof. The Recipient agrees that Discloser, in addition to any of its other available rights and remedies, will be entitled to seek equitable relief, including injunction (with no requirement to post a bond or other security or to prove actual damages) to prevent breaches or threatened breaches of this Section 6 by the Recipient or any of its representatives and to seek specific performance of the terms of this of this provision.
12. Governing Law; Disputes
This Agreement is governed by Swiss law, excluding its choice of laws rule. Any dispute or claim arising out of or related to this Agreement, or breach or termination thereof, shall be subject to exclusive jurisdiction, forum and venue of the federal courts in Zurich - Switzerland, and the parties agree and submit to the personal and exclusive jurisdiction of these courts. This Agreement and all proceedings shall be in German language only.
13. Export
Products may not be exported without prior written consent of LUMINARITY. End User warrants and hereby gives written assurance to LUMINARITY that End User will comply with export and re-export restrictions applicable to the Products, documentation and technical information provided hereunder. End User warrants that it shall comply in all dealings with, by, for or on behalf of LUMINARITY, and shall not offer, promise, give, demand, seek or accept, directly or indirectly, any gift or payment, consideration or benefit in kind that would or could be construed as an illegal or corrupt practice.
14. Force Majeure
LUMINARITY shall not be responsible for any cessation, interruption or delay in the performance of its obligations hereunder due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, boycott or other similar events beyond its reasonable control.
15. Miscellaneous
This Agreement and the rights hereunder may not be assigned or otherwise transferred, either directly or indirectly, by End User without the prior written consent of LUMINARITY. This is the entire agreement between the parties relating to the subject matter hereof and no waiver or modification of this Agreement shall be valid unless in writing signed by each party. The waiver of a breach of any term herein shall in no way be construed as a waiver of any other term or breach. This Agreement supersedes all pre-printed terms and conditions in any purchase order or other business forms submitted by End User and any terms which are inconsistent with the terms of this Agreement are explicitly rejected. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect. This Agreement may be executed counterparts, each of which will be considered an original, including by facsimile or other electronic form. In the event of a conflict or inconsistency among the documents governing the Products, the order of precedence shall be the applicable: (i) SOW; (ii) Order; (iii) any exhibit, schedule or addendum to this Agreement; and (iv) body of this Agreement.
SPECIAL TERMS AND CONDITIONS
- Schedule 1 – Professional Services
- Schedule 2 – Support
SCHEDULE 1 - PROFESSIONAL SERVICES
In addition to the Terms of Service, which govern this Schedule 1, the following terms apply to Professional Services:
1. Special Definitions. For the purpose of this Schedule 1 only, the following terms shall have the following meanings:
"Change Order" means any change to a SOW as described in the "Change Orders" section below. Change Orders will be deemed incorporated by reference into the applicable SOW.
"Content" means any report documentation, software, program, script, content, audio or visual material, images, digital media, or other materials of any type.
"Deliverable" means any Content to the extent expressly identified as a deliverable in an applicable SOW (in any medium and in any stage of development or completion) provided or created by LUMINARITY (including by any of its employees, agents or subcontractors) alone or jointly with others.
"Services" means work performed by LUMINARITY, its Affiliates, or their respective permitted subcontractors under a SOW, including but not limited to the provision of any Deliverables specified in an applicable SOW.
"Statement of Work" or "SOW" means a document describing Services to be provided hereunder that is entered into between End User and LUMINARITY. SOWs will be deemed incorporated herein by reference.
2. Delivery of Services. LUMINARITY will provide the Services, including any Deliverables listed in the applicable SOW, in accordance with the Agreement and the applicable SOW.
3. Acceptance of Deliverables. To the extent the Services include any Deliverables under an applicable SOW, upon completion of each Deliverable, LUMINARITY will submit a complete copy to End User. End User will review and test all Deliverables in accordance with such SOW pursuant to any acceptance criteria or test plans mutually agreed upon in writing by the parties for such Deliverable within ten (10) business days after LUMINARITY's submission of the Deliverable or such other time period as may be defined in the applicable SOW (the "Acceptance Period"). End User will provide LUMINARITY with written notification of acceptance for each Deliverable before the end of the Acceptance Period; however, failure to reject a Deliverable, as set forth below, will be deemed acceptance. If End User, in its reasonable and good faith judgment, determines that any submitted Deliverable does not satisfy the agreed-upon acceptance criteria as specified in the applicable SOW or as mutually agreed upon in writing by the parties for such Deliverable, End User must so notify LUMINARITY in writing during the Acceptance Period, specifying the deficiencies in detail. LUMINARITY will use commercially reasonable efforts to correct such deficiencies and resubmit the Deliverable to End User as soon as practicable. End User will again review and test the Deliverable against the agreed-upon acceptance criteria and detail any deficiencies to LUMINARITY in writing within 10 business days after resubmission of the Deliverable. If a Deliverable fails to meet the functional requirements specified in the applicable SOW after its second resubmission to End User, End User may either, as its sole and exclusive remedy: (i) again reject the Deliverable and return it to LUMINARITY for further correction and resubmission in accordance with the process described above (if the Deliverable is not accepted after two resubmissions, the matter will be escalated to End User's executive sponsor for the project associated with the SOW and the LUMINARITY CEO); or (ii) terminate the relevant SOW immediately upon written notice and recover all Services fees paid under such SOW for such deficient Deliverable. If the parties determine that a Deliverable's functional requirements specified in a SOW require modification (for example, due to incorrect assumptions or changed requirements), they will cooperate in good faith to execute a Change Order for such revised requirements.
4. Change Orders. Changes to a SOW will require a written Change Order signed by the parties prior to implementation of the changes. Such changes may include, for example, changes to the scope of work and any corresponding changes to the estimated fees and schedule.
5. Fees. End User will pay LUMINARITY for the Services at the rates specified in the applicable SOW, or if no rate is specified in the SOW, LUMINARITY's standard rates in effect at the time the SOW is executed.
6. Expenses. End User will reimburse LUMINARITY for reasonable travel and out-of-pocket expenses incurred in connection with the Services.
7. End User Intellectual Property. End User hereby grants LUMINARITY such licenses as may be required for LUMINARITY to perform its obligations hereunder, and End User does not grant to LUMINARITY any other rights in or to End User's intellectual property except as set forth in an applicable SOW or as otherwise agreed to in writing.
8. Warranty. LUMINARITY warrants that the Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. For any breach of the above warranty, End User's exclusive remedy and LUMINARITY's entire liability will be the re-performance of the applicable Services. If LUMINARITY is unable to re-perform the Services as warranted, End User will be entitled to recover the Services fees paid to LUMINARITY for the deficient Services. End User must make any claim under the foregoing warranty to LUMINARITY in writing within ninety (90) days of performance of such Services in order to receive warranty remedies.
9. Disclaimer. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10. Scheduling of Services. If End User does not schedule Services purchased pursuant to an Order within one (1) year of the date of the Order, the Parties agree that such Services may be deemed performed and completed, in LUMINARITY's sole discretion.
SCHEDULE 2 – SUPPORT
In addition to the Terms of Service, which govern this Schedule 2, the following terms apply to Support:
1. Special Definitions. For this Schedule 2 only, the following terms shall have the following meanings:
"Error" means a reproducible programming error in the Software which significantly degrades the Software as compared to LUMINARITY's published performance specifications. Correction may be provided by patch, correction in the next Update, work-around or avoidance procedure, or other resolution to remedy the Error.
"Support" means technical support telephone or email assistance provided by LUMINARITY to a designated End User support contact during normal business hours concerning the installation and use of the Products.
"Update" means a maintenance release of the Software designated as such by LUMINARITY and released on a general, regularly scheduled basis as part of standard maintenance to LUMINARITY's other End Users for the same version of the Software without additional charge.
2. Support Term. Support service as set forth in this Schedule 2 ("Support") commence on the Effective Date (or other applicable start date specified in the Order) and will continue until the end of the applicable Subscription Term. If End User elects not to renew Support or fees are not kept current, End User may re-enroll only upon prior written consent of LUMINARITY and payment of the applicable Subscription fee for the coming period and all fees that would have been paid had End User not discontinued Support. Support requests may be submitted online 24/7 at
3. Support
3.1 Software and Subscription Support. So long as End User is current in the payment of all Subscription fees, the following Support will be made available during the applicable Subscription Term: (i) Updates released during the Subscription Term, and (ii) Error resolution assistance for Errors in the Software reported by End User during the Subscription Term, as further described below. Support will be provided only with respect to the then current version of the Software and only for active Subscriptions. LUMINARITY shall have no obligation to provide Support for: (i) altered or damaged Software or any portion of the Software incorporated with or into other software; (ii) Software or Subscriptions problems caused by End User's negligence, abuse or misapplication or (iii) Software or Subscriptions installed or used on any hardware that is not supported by LUMINARITY. For Error resolution assistance, LUMINARITY will use commercially reasonable efforts to correct any Error reported by End User in the Software attributable to LUMINARITY, employing a level of effort commensurate with the severity of the Error, provided, however, that LUMINARITY shall have no obligation to correct all errors in the Software.
4. End User Responsibilities. End User is responsible for providing sufficient information and data to allow LUMINARITY to readily reproduce all reported Errors. If LUMINARITY believes that a problem reported by End User may not be due to an Error in the Software or cannot be readily reproduced LUMINARITY will so notify End User. End User shall document and promptly report all Errors to LUMINARITY and take all steps necessary to carry out procedures for the rectification of Errors or malfunctions within a reasonable time after such procedures have been received from LUMINARITY.