LUX VORTEX VOF

GENERAL TERMS AND CONDITIONS OF SALE

(“T&C”)

 

1.    Product Use Terms and Conditions

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(i)    PLEASE READ THE FOLLOWING TERMS CAREFULLY AS PURCHASING, LICENSING AND/OR USING THE RELATED PRODUCTS, ADDITIONAL FEATURES OR PARTS SOFTWARE OR SERVICES INDICATES AGREEMENT WIT, AND ACCEPTANCE OF THESE TERMS.

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(ii)    THESE ARE THE CURRENT TERMS AND CONDITIONS OF USE (" AGREEMENT ") OF LUX VORTEX DIGITAL NORTH AMERICA ("LUX VORTEX"), WHICH APPLY TO ANY PURCHASE OF LUX VORTEX PRODUCTS, ADDITIONAL FEATURES OR PARTS, LICENSES OF ACCOMPANYING SOFTWARE AND/OR PROVISION OF SERVICES INCLUDING ANY DOCUMENTATION THEREIN OR ATTACHED THERETO (“PRODUCTS”) AND GOVERN YOUR, ON BEHALF OF YOURSELF AS AN INDIVIDUAL, YOUR EMPLOYER, OR ANYONE YOUR ACTING ON BEHALF OF INCLUDING ANY COMPANY OR OTHER LEGAL ENTITY ("PURCHASER") RIGHTS OF USE OF ANY SUCH PRODUCTS, WHETHER PURCHASED DIRECTLY FROM LUX VORTEX IN AN ORDER FORM OR PURCHASE AGREEMENT OR THROUGH AN APPROVED THIRD PARTY REPRESENTATIVE OF LUX VORTEX (THE "PRODUCTS").

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(iii)     BY EXECUTING AN ORDER FORM (EITHER DIRECTLY FROM LUX VORTEX OR THROUGH ONE OF LUX VORTEX'S REPRESENTATIVES), PURCHASER AGREES TO THE TERMS OF THIS AGREEMENT. IF PURCHASER IS ENTERING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, PURCHASER REPRESENT THAT PURCHASER HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IF PURCHASER DOES NOT HAVE SUCH AUTHORITY, OR IF PURCHASER DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, PURCHASER MUST NOT MAKE ANY USE OF ANY OF THE PRODUCTS.

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(iv)     This Agreement is effective between Purchaser and LUX VORTEX as of the date of Purchaser purchasing any such LUX VORTEX Products and is an integral part of any purchase agreement or Order Form.

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2.     DEFINITIONS

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(i)     "Order Form" means the ordering documents for purchase of Products, including addenda thereto, that are entered between Purchaser, either directly with LUX VORTEX or with any of LUX VORTEX's approved representatives. Order Forms shall be deemed as incorporating the terms of this Agreement as an integral part of such Order Form. In case an Order Form is signed with a representative of LUX VORTEX, LUX VORTEX's sole liability and obligation to Purchaser shall be as set forth in this Agreement or any other specific agreement signed directly with LUX VORTEX and it shall have no other liability or obligation to Purchaser under such Order Form not signed with LUX VORTEX.

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(ii)     "Services" means Services that Purchaser purchases or is entitled to receive as part of the Product purchase. Such Services can be received from either LUX VORTEX or LUX VORTEX's approved representative, as agreed between the Parties. In case Purchaser Services are to be received from a representative of LUX VORTEX, LUX VORTEX's sole liability and obligation to Purchaser shall be as set forth in this Agreement or any other specific agreement signed directly with LUX VORTEX and it shall have no other liability or obligation to Purchaser for such Services not signed with LUX VORTEX.

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(iii)     "General Use Data" means operational and technical information only that is received through a remote support system. Such operational and technical information is required for monitoring and improving performance and efficiency, as well as for solving operational issues and maintenance. It will include productivity, utilization, ink consumption, maintenance profiles, errors and malfunctions. The system will not pull sensitive or private information and will not share with any other third party company.

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3.     THIRD-PARTY PROVIDERS AND AUTHORIZED REPRESENTATIVES

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(i)     We may offer Products and/or Services for such Products under Order Forms or other purchase or service agreements signed directly with LUX VORTEX or through any of our approved representatives. Any acquisition by Purchaser of third-party products or services, including but not limited to Products, transportation, insurance, training, maintenance services, implementation, installation, support, customization, and other Services, and any exchange of data between Purchaser and any third-party provider/approved representative , is solely between Purchaser and the applicable third-party provider/approved representative , according to the specific terms signed between Purchaser and third-party provider/approved representative . LUX VORTEX does not warrant or support third-party products or services, including Products purchased through LUX VORTEX approved representatives, whether they are designated by LUX VORTEX as “certified” or otherwise, except as specified herein or in an Order Form, purchase agreement or service agreement signed directly with LUX VORTEX. In those cases, all such warranties, support and services not specifically detailed in this Agreement will be received directly from such third-party provider/approved representative.

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4.     GENERAL USE DATA

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(i)     Purchaser hereby confirms that it is aware that the Software within the Products shall include the ability to collect and store General Use Data. Unless un-enabled by Purchaser, Purchaser acknowledges that LUX VORTEX may directly or through its allowed representatives access and retrieve General Use Data from such Products through wireless connections or direct access to the Products. The Products shall allow Purchaser to restrict such access by restricting the enabling of access to such General Use Data.

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(ii)     Ownership of General Use Data. As between LUX VORTEX and Purchaser, Purchaser exclusively owns all rights, title and interest in and to all General Use Data.

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(iii)     LUX VORTEX shall have a royalty-free, worldwide, transferable, sublicense able, irrevocable, perpetual license to use the General Use Data including to incorporate any outcomes learned from such General Use Data or incorporate into the Products, Services of Representative’s business any suggestions, enhancement requests, recommendations or other feedback provided by Purchaser or resulting from the General Use Data. All such enhancements, modification, improvements and/or new inventions or ideas, other than the General Use Data itself, shall be fully owned by LUX VORTEX and Purchaser hereby waive any rights to such matters. Should LUX VORTEX develop any Product of Service enhancements based on the studying of such General Use Data or otherwise, such Product and/or Service enhancements may be offered to Purchaser in the future to enhance and expand the use ability and features of the Products.

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5.     RISK, TITLE AND PROPRIETARY RIGHTS

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(i)     The Products shall remain the property of LUX VORTEX unless and until LUX VORTEX receives all payments due for the goods; provided, however, that the Purchaser shall be entitled to use the Products in Purchaser's ordinary course of business before such full payment. Before LUX VORTEX has received full payment, Purchaser shall not sell, lease or otherwise dispose of the Products, shall take proper care of the Products, and shall keep them at the initial installation site free and clear of liens, pledges, security interests and rights of others whatsoever. Purchaser shall keep the Products in good working order and insured against all risks of loss or damage for LUX VORTEX and shall inform the landlords of the site that LUX VORTEX is the owner of the Products. LUX VORTEX shall have the right to repossess, access, reclaim possession and/or re-sell the Products until LUX VORTEX has received all payments therefor. Purchaser agrees to comply with any local formality which may be required to register or enforce LUX VORTEX’s retention of property as provided herein. Even upon transfer of title in the Products, Purchaser shall undertake to comply with all restrictions set forth herein with regards to the Products, including specifically in section 5.4 hereafter.

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(ii)     Notwithstanding the above, LUX VORTEX owns and/or reserves all rights, title and interest to all intellectual property including the ideas, concepts, techniques, inventions, technologies, processes, methodologies, patents, and rights in and to the Products and to any software, programs (and all images, photographs, animations, video, audio, music and text incorporated into the Products) (the "Software"), trademarks, copyrights and trade names relating to and in the Products and their creation and all modifications, improvements or changes therein or thereto (all jointly, including the Software, " LUX VORTEX Intellectual Property Rights "). In addition, and without derogating from anything to the contrary, Purchaser acknowledge and agree that the program code, technical documentation, specifications, instructions, structure, sequence and organization of the Software, including the Software itself are a valuable proprietary right of LUX VORTEX. Purchaser acknowledge and agree that the Software is licensed and not sold to Purchaser and that all ownership of, and title to, the Software and documentation and all subsequent copies thereof regardless of the form or media are held by LUX VORTEX. Purchaser never acquire title to LUX VORTEX’s Intellectual Property Rights or Software.

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6.     SOFTWARE LICENSE

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(i)     LUX VORTEX grants Purchaser a nonexclusive, nontransferable, revocable and limited license to use the accompanying Software program(s) in executable form and accompanying documentation (the “Documentation”), subject to the terms and restrictions set forth in this Agreement for its own internal purposes and solely in conjunction with the use of the Products to which it relates. Purchaser acknowledges that the Software may also be subject to additional terms and conditions set forth in executable or electronic license agreements, which shall control and govern all such licensed Software. All rights not expressly granted herein or therein are reserved to LUX VORTEX. Purchaser is not permitted to directly or indirectly, modify, enhance, adapt, translate, make improvements, create derivative works of, disassemble, decompile, reverse engineer, reduce to any human or machine perceivable form, or circumvent any technological measures that control access to or permit derivation of the source code of the Software or any part thereof; copy, sell, assign, lease, rent, transfer, assign, distribute or sublicense the Software or Documentation or to use the Software or Documentation in a time-sharing arrangement or in any other unauthorized manner nor permit any other party to do any of the foregoing, or make use of the Software as a standalone, including in any way which is not an integral built in part of the Products. Further, no license is granted to Purchaser in the human readable code of the Software (source code). This Agreement does not grant Purchaser any rights to patents, copyrights, trade secrets, trademarks, LUX VORTEX's Intellectual Property Rights or any other rights with respect to the Software or Documentation other than those specifically stated herein.

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(ii)     Until the Products are paid for in full, Purchaser shall be providing the Software code required to operate the Products, provided, Purchaser is not in default of its obligations hereunder. LUX VORTEX or anyone on its behalf is not obligated to provide Purchaser with the Software code if Purchaser is in default of any of Purchaser obligations, including payment obligations. Upon full payment, Purchaser shall be provided with a permanent Software code.

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(iii)     Subject to the restrictions set forth herein, the Software is licensed to be used on one Product purchased by Purchaser or leased to Purchaser, for Purchaser internal use.

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7.     USE RESTRICTIONS.

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(i)     Notwithstanding anything to the contrary, Purchaser shall not (I) permit any third party to access the Software except as permitted herein; (ii) create derivate works based on the Products and/or the Software; (iii) copy, frame or mirror any part or content of the Products and/or Software, other than copying or framing on Purchaser own intranets or otherwise for Purchaser own internal business purposes; (iv) reverse engineer the Products and/or Software, or any compositions made using the Products ;(v) access the Software and/or Products in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Products and/or Software; (vi) change, distort or delete any patent, copyright or other proprietary notice which appear on or in the Product (or in the Software); or (vii) operate or make use of the Products in any way that may violate any applicable law or regulation or take or permit any other action that may impair LUX VORTEX's rights or damage the image or reputation of quality inherent in the Products, LUX VORTEX's business, reputation, LUX VORTEX's Intellectual Property or other valuable assets or rights. In the event Purchaser rents, leases, sells or otherwise transfers the Products to a third party, Purchaser agrees that it will require such third party to be bound by the General Data Use Section, the Title and Proprietary Rights Section, the Software Section and the Use Restrictions Section hereof as a condition of such sale, rental, lease or other transfer.

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8.     CONFIDENTIALITY

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(i)     Purchaser shall keep confidential the terms and conditions, including the commercial terms, at which Products, Services or consumables are sold, any information, drawings, designs or manual received from LUX VORTEX or anyone on its behalf in connection with the Products and either marked as “confidential” or “proprietary” or which should reasonably be deemed as such, and shall not disclose such information to a third-party, except as required by law, provided, that Purchaser give LUX VORTEX prompt notice thereof so that LUX VORTEX may seek a protective order or other appropriate remedy, and further provided, that if the same is not obtained, Purchaser shall furnish only that portion of the information which is legally required.

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9.     WARRANTIES AND DISCLAIMERS

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(i)     LUX VORTEX Warranties. LUX VORTEX warrants that for a period of twelve (12) months from the actual date of installation of the Products (unless otherwise defined in the Order Form when purchased directly from LUX VORTEX) (the “Warranty Period”), each component thereof shall substantially meet the LUX VORTEX specifications, although LUX VORTEX does not warrant uninterrupted or error-free operation. During the Warranty Period, LUX VORTEX shall repair or replace, at LUX VORTEX’s option, any component found to contain defects in materials or workmanship with new or refurbished parts. Repairs or replacements of parts under warranty shall be at LUX VORTEX’s expense, except that LUX VORTEX shall charge the Purchaser for any expenses and travel costs incurred in connection therewith. The Purchaser undertakes to return to LUX VORTEX any replaced component, within thirty (30) days from the replacement thereof, and LUX VORTEX will be entitled to invoice the Purchaser for components not returned pursuant to the foregoing terms.

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(ii)     LUX VORTEX's obligations hereunder shall not apply to maintenance, repair or replacement necessitated in whole or in part by: (I) catastrophe, fault or negligence of the Purchaser; (ii) improper or unauthorized use such as without limitation, use of improper or non-conforming thinner, solvents, inks or other consumables, alteration, modification; (iii) installation, modification or repair other than by LUX VORTEX or its authorized technical representatives; or (iv) deviation from recommended maintenance procedures, removal of the Products from the original installation site, unusual stress, power failure or failure to maintain the prescribed environmental conditions at the installation site.

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(iii)     All warranties applicable to the Software are as stated in the product manual or in the Software itself, whether in paper or electronic form, accompanying the Software. Except as expressly stated therein, the Software is licensed to Purchaser “as is, “without warranty of any kind and LUX VORTEX disclaim all warranties, express or implied, including without limitation the warranties of merchantability, fitness for a purpose, title, and noninfringement of third-party rights.

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(iv)     Following the Warranty Period, Purchaser shall be entitled to purchase additional service and support per terms to be agreed on between Purchaser and Lux Vortex in a separate agreement.

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(v)     Specifications. LUX VORTEX reserves the right to modify the specifications of the Products and Software, provided, that any such modification shall not adversely affect the performance thereof.

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(vi)     Mutual Warranties. Each party represents and warrants that (I) it has the legal power to enter this Agreement, and (ii) it will not transmit to the other party any Malicious Code.

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(vii)     Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, LUX VORTEX MAKES NO WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE PRODUCTS, SOFTWARE AND/OR SERVICES, AND EXPRESSLY DISCLAIMS ANY SUCH WARRANTIES INCLUDING WITHOUT LIMITATION ANY EXPRESS, STATUTORY OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PURPOSE. PURCHASER UNDERSTAND AND AGREE THAT ALL WARRANTIES IMPLIED BY APPLICABLE LAWS ARE EXCLUDED FROM THIS SALE AND LICENSE. PURCHASER ASSUME ALL RISKS, IF ANY, INCLUDING RISKS OF INJURY, LOSS OR DAMAGE, WHETHER DIRECT, CONSEQUENTIAL, OR INDIRECT, ARISING OUT OF THE USE, MISUSE, OR INABILITY TO USE THE PRODUCTS AND/OR SOFTWARE. LUX VORTEX SHALL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR RELIANCE DAMAGES, LOSSES OR EXPENSES (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR LOSS OF USE) RELATING TO OR ARISING HEREUNDER, HOWEVER CAUSED, AND WHETHER BASED ON CONTRACT, TORT, EQUITY OR ANY OTHER THEORY OF LIABILITY WHATSOEVER, EVEN IF LUX VORTEX WAS NOTIFIED OR OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES OR EXPENSES. THE REMEDIES PROVIDED HEREIN, IF ANY, ARE PURCHASERR SOLE AND EXCLUSIVE REMEDIES. LUX VORTEX'S MAXIMUM LIABILITY FOR DAMAGES HEREUNDER SHALL BE LIMITED TO THE CONSIDERATION PAID TO LUX VORTEX FOR THE SPECIFIC PRODUCT(S) GIVING RISE TO A CLAIM AGAINST LUX VORTEX.

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10.     MUTUAL INDEMNIFICATION

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(i)     Indemnification by LUX VORTEX. LUX VORTEX shall defend Purchaser against any claim, demand, suit, or proceeding ("Claim") made or brought against Purchaser by a third party alleging that the use of the Products as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify Purchaser for any damages finally awarded against, and for reasonable attorney’s fees incurred by Purchaser in connection with any such Claim; provided, that Purchaser (a) promptly gives LUX VORTEX written notice of the Claim; (b) gives LUX VORTEX sole control of the defense and settlement of the Claim; and (c) provides to Lux Vortex all reasonable assistance, at LUX VORTEX expense. LUX VORTEX may, at its sole option and expense, procure for Purchaser the right to continue using the Products and/or Software; replace or modify any component so that the Products and/or Software are rendered non-infringing; or refund the price paid by Purchaser after deducting therefrom twenty percent (20%) for each year or portion thereof that shall have elapsed from the date of the purchase. Notwithstanding the above, LUX VORTEX shall have no obligation or liability hereunder with respect to a suit or claim based on the use of the Products in a manner for which it was not designed, for any changes, modification or amendments made by anyone other than Lux Vortex itself or for any Claim arising due to the use of the Products in combination with any other software, product or means, where without such use, the Product itself would not be regarded to as infringing.

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(ii)     Indemnification by Purchaser. Purchaser shall defend LUX VORTEX against any Claim made or brought against LUX VORTEX by a third party alleging that Purchaser's use of the Products (and not the Products themselves as covered by this agreement), including in violation of this Agreement , infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify LUX VORTEX for any damages finally awarded against, and for reasonable attorney’s fees incurred by, LUX VORTEX in connection with any such Claim; provided, that LUX VORTEX (a) promptly gives Purchaser written notice of the Claim; (b) gives Purchaser sole control of the defense and settlement of the Claim (provided that Purchaser may not settle any Claim before receipt of prior written approval form LUX VORTEX to such settlement); and (c) provide to Purchaser all reasonable assistance, at Purchaser expense.

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(iii)     Exclusive Remedy. This Section (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.

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11.     LIMITATION OF LIABILITY

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(i)     IN NO EVENT, SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY PURCHASER HEREUNDER.

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(ii)     Exclusion of Consequential and Related Damages. IN NO EVENT, SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

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12.     TERMINATION

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(i)     Termination of Agreement. The rights granted hereunder are perpetual unless terminated earlier as specified hereafter LUX VORTEX reserves the right to terminate and revoke this Agreement and terminate its relationship with Purchaser at any time following Purchaser's breach of any of the terms herein, and such termination shall be effective immediately upon such written notice to Purchaser. Upon such termination, Purchaser shall immediately cease any use of the Software, including that embedded within the Products, delete or destroy all copies in its possession.

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(ii)     Surviving Provisions. Third Party Providers, General Use of Data,  Risk, Title and Proprietary Rights, Use Restrictions, Confidentiality, Disclaimer,  Mutual Indemnification, Limitation of Liability, General Provisions and any other clauses which by their nature should survive termination, shall survive any termination or expiration of this Agreement.

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13.     GENERAL PROVISIONS

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(i)     Force Majeure. LUX VORTEX shall not be liable for any delay or failure in the performance of its obligations, when such delay or failure results in whole or in part from shortages or disruption in the supply of materials from LUX VORTEX’s usual sources, shortage of LUX VORTEX’s usual means of transport, floods, fire, other acts of God or due to criminal intention, war, riot, civil insurrection, strikes, lock-outs, industrial unrest, accident, inclement weather, acts of civil or military authorities, or circumstances beyond LUX VORTEX’s reasonable control, preventing, delaying or hindering performance.

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(ii)     Notices. Any notice shall be in writing and shall be deemed to have been duly given five (5) business days after being mailed by prepaid registered air mail, or one (1) business day after being transmitted by fax or email as confirmed by an electronically printed confirmation of date and time, or manually delivered, addressed to the respectively applicable addresses of the Customer and LUX VORTEX.

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(iii)     Governing Law; Jurisdiction. This Agreement shall be governed, construed and enforced in accordance with the laws of the Kingdom of the Netherlands, without regard to the conflict of laws rules. The Customer agrees that the United Nations Convention for the Sale of Goods shall not apply to this Agreement and the goods sold under the Order. Any controversy or claim arising under, out of, or about the terms hereunder are hereby submitted to the sole and exclusive jurisdiction of the competent courts located in Den Haag, Netherlands.

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(iv)     Provisions Separable. If one or more provisions of this Agreement shall be held invalid, this shall not affect the validity of the other provisions. In such an event, the invalid provisions shall be replaced by provisions that deviate therefrom as little as possible.

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(v)     Waiver and Amendment. This Agreement may be amended, modified, superseded, canceled, renewed, extended or waived only in written instrument signed by LUX VORTEX’s Managing Director. The waiver by LUX VORTEX of a breach of any provision of this Agreement shall not operate as a waiver of any subsequent breach.

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(vi)     Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (I) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Purchaser shall not permit Users to access or use Products in violation of any U.S. export embargo, prohibition or restriction.

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(vii)     Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

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(viii)     No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

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(ix)     Assignment. Purchaser may not assign any of Purchaser's rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of LUX VORTEX.

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(x)     Entire Agreement. This Agreement, including all exhibits and addenda hereto, and purchase agreement or all Order Forms it is an integral part of, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any purchase agreement, exhibit or addendum hereto or any Order Form, the terms of this Agreement shall prevail.