General terms and conditions of purchase

These general terms and conditions of purchase (“Terms”) shall govern the purchase of Goods and Services by LumApps to its suppliers (“Supplier(s)”) and shall supersede and take precedence over any other agreement, in particular Supplier’s terms and conditions. These Terms shall come into effect when Supplier either communicates its acceptance of these Terms or commences performing the Services, whichever is earlier.

1. DEFINITIONS

In these Terms, the following terms shall have the meanings set out below:

• “Agreement” means these Terms and the applicable PO;
• “Confidential Information” means any information, knowledge, document (including the Agreement), communicated by LumApps to Supplier, of any nature whatsoever, including of intellectual nature (software, products, studies, analyses, projects, systems, methods, technics, technologies, strategies, process, know-how, developed by one the Parties or other information covered or not by an intellectual property right), technological, scientific, contractual, financial, economic and/or commercial nature;
• “Data Protection Legislation” means all applicable data protection laws and regulations in connection with either party’s role, as described in the PO, including, but not limited to, the requirements of the Regulation EU 2016/679 (the “GDPR”), the UK Data Protection Act 2018, the California Consumer Privacy Act (the “CCPA”);
• “Deliverables” means all Goods including all results of the Services developed by Supplier for LumApps in the performance of the Services;
• “Fees” means the total sum to be paid by LumApps as stated in the PO;
• “Goods” means any goods to be provided by Supplier under the  Agreement;
• “Intellectual Property” means copyright, rights in software, trademarks, design rights, patents, know-how, confidential information, rights in inventions, processes and formulae, and all and any other intellectual property rights subsisting anywhere in the world, including all applications for the same;
• “LumApps” refers to the entity identified in the PO;
• “Personal Data” has the definition set forth in applicable Data Protection Legislation;
• “PO” means a purchase order attached to these Terms or/and other form of written communication which references the PO and to which these Terms shall apply;
• “Services” means the services and/or goods to be provided by Supplier under the Agreement.

2. SUPPLY OF GOODS AND SERVICES

2.1 The Supplier shall provide the Services from the date specified in the PO. The Supplier shall provide the Services to LumApps in accordance with LumApps’ requests from time to time, best industry practices and the terms of this Agreement. Time is of the essence for the purpose of Supplier’s obligations under the Agreement.

2.2 The Supplier warrants that its personnel are (i) suitably qualified and trained in order to provide the Services, (ii) are entitled to work in the territory in which the Services are being provided.

2.3 Supplier warrants, undertakes and represents that (i) it has full capacity and authority to enter into and perform its obligations under this Agreement, (ii) it is in compliance with all applicable laws, including applicable anti-corruption laws, regulations and codes of practice, (iii) it will not do any act or make any omission in relation to the performance of its obligations under this Agreement which does or may adversely affect the reputation of LumApps or its clients, and (iv) the Deliverables are complete, accurate, non-infringing and compliant in all respects with this Agreement.

3. DELIVERY

3.1 Supplier’s delay. In the event, Supplier for any reason anticipates any difficulty in complying with any agreed delivery date or otherwise in accordance with any requirement of the Agreement, Supplier shall promptly notify LumApps.

3.2 Delivery. The Deliverables shall be delivered to the place of business indicated on the PO. LumApps reserves the right to refuse the delivery in the event that (i) the delivery deadline is not respected, (ii) the delivery is incomplete, or (iii) the delivery contains the wrong Deliverables and/or does not meet the specifications of the PO. Any Deliverables that LumApps refuses in accordance with the above reasons, are returned at Supplier’s own costs. LumApps may accept such part of the Deliverables as LumApps may decide, (i) if applicable, pay prorated Fees in respect of it or such other charge as may be agreed between the parties; (ii) require Supplier to correct the fault identified at no extra cost to LumApps by such date agreed by the parties, in which case the revised Deliverables shall be subject to all the provisions of these Terms; (iii) suspend the Services and only pay a pro rata amount of the Fee incurred before such suspension; and/or (iv) terminate the Agreement pursuant to Clause 9 in which case Supplier shall refund all Fees paid by LumApps in respect of such defective Deliverables.
Where such Deliverables is an event, and (i) the event is canceled for any reason whatsoever through no fault of LumApps, (ii) the event has less attendees that the number defined on the PO and/or (iii) Supplier does not provide the attendees list (name, e-mail), the event shall be either rescheduled without incurring any additional charge or refunded at the discretion of LumApps.

4. FEES, INVOICING AND PAYMENT

4.1 Fees. The Fees are firm, fixed and non-revisable.

4.2 Payment. Subject to acceptance of the Services by LumApps, LumApps shall pay to Supplier the Fees specified in the PO.

4.3 Invoice. Supplier shall invoice LumApps on the date set out on the PO and LumApps shall pay such invoice within thirty (30) days of the last day of the calendar month, in the currency specified in the PO. All invoices shall be accompanied by supporting documentation reasonably requested by LumApps. If LumApps has a dispute in relation to an invoice it may give notice to Supplier before the due date of payment, and pay the undisputed portion of the invoice. LumApps may suspend payment of the disputed part of the Fees and the parties shall discuss in good faith the disputed Fee and endeavor to agree on a solution as quickly as possible.

5. SECURITY AND PRIVACY

5.1 The terms "controller," "data subject," and "processing" have the meaning given to them under GDPR.

5.2 Supplier has and shall continue to implement, monitor, and maintain information security policies and safeguards and will use industry-standard safeguards and security technologies to protect against the disclosure, destruction, loss, or alteration of LumApps’ Confidential Information and shall provide evidence of such safeguards upon request.

5.3 If Supplier is processing or transferring Personal Data on behalf of LumApps, Supplier will: (i) comply with all Data Protection Legislation; and (ii) if required by LumApps, execute additional supplemental data protection terms (such as a data protection agreement).

5.4 To the extent Supplier provides any Personal Data or other information for the purpose of identifying a potential customer of LumApps’ services (“Lead Information”), the parties intend, in relation to such Personal Data, that both parties act as independent controllers (as defined in the GDPR).
LumApps may use and process the Lead Information received from Supplier for its own business purposes. LumApps shall comply with all applicable Data Protection Legislation when processing such Lead Information.  
Supplier alone shall decide how to manage the processing of such Personal Data in relation to the provision of Lead Information. As the main point of contact for the data subject, Supplier is liable for providing the data subjects with proper information in accordance with Data Protection Legislation and, where applicable, obtain their consent for the communication and use of their Personal Data by LumApps. The Supplier shall also be responsible for managing data subject requests to exercise their rights and immediately inform LumApps in case of potential non-compliance of the Legal Information with the Data Protection Legislation.

5.5 Supplier shall provide LumApps, upon request, with any document and information necessary for LumApps to comply with Data Protection Legislation related to the Services.  
If either party receives any request or claim related to Personal Data collected and processed in relation to the Services, such party shall inform the other party without undue delay and provide all reasonable assistance to answer such request or claim.

6. INDEMNITY, INSURANCE & LIABILITY

6.1 Supplier shall be liable for and shall indemnify LumApps against any and all losses incurred by LumApps which are caused by Supplier.

6.2 Supplier shall take out and maintain with a reputable third party insurer insurance to cover the Supplier’s obligations and liabilities under this Agreement. Supplier shall provide written evidence of such insurance to LumApps on request.

6.3  In no event will either party be liable to the other party under any theory of liability, however arising, for indirect, special, punitive, incidental or consequential damages of any kind arising out of these Terms including, without limitation, damages for loss of business, business interruption.

EACH  AGGREGATE LIABILITY PARTY UNDER THESE TERMS WILL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID OR PAYABLE BY LUMAPPS UNDER THESE TERMS FOR THE LAST 24 MONTHS.

EACH PARTY SHALL, UNDER NO CIRCUMSTANCES, BE ABLE TO CLAIM A LIMIT ON ITS LIABILITY FOR :

• FAILURE TO COMPLY WITH ITS SECURITY AND PRIVACY OBLIGATIONS UNDER SECTION 5;
• FAILURE TO COMPLY WITH ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 7;
• FRAUD OR GROSS NEGLIGENCE.

7. CONFIDENTIALITY

7.1 Each Party undertakes to ensure the confidentiality of the Confidential Information, including:

a. To retain and handle the Confidential Information in a strictly confidential manner, with the same level of protection and caution than the receiving party grants to its Confidential Information of same nature;
b. Not to reproduce, communicate, in total or in part, the Confidential Information to any third party;
c. To use the Confidential Information for the sole purpose of performing the Terms and for the duration defined hereinafter;
d. To only forward the Confidential Information to the members of its personnel, its consultants, subcontractors and representatives who have an absolute need to know the Confidential Information throughout the performance of the Agreement. Within the framework of this communication, the receiving party undertakes to take all necessary measure to ensure the enforcement of this confidentiality agreement by the above mentioned persons, which the receiving partyshall procure;
e. To immediately cease, on prior, express and written request of the disclosing party, any use of the Confidential Information and to return or to destroy on the request of the disclosing party the documents or supports containing the Confidential Information as well as any reproduction of the Confidential Information without being released of its confidentiality and non-disclosure undertaking.

7.2 Receiving party shall treat as confidential all information obtained from LumApps in the course of the relationship governed by these Terms and shall not share such information to any person without the disclosing party’s written consent provided that this clause shall not extend to information which (i) was rightfully in the possession of Supplier prior to the commencement of the negotiations leading to these Terms; (ii) is already public knowledge or becomes so at a future date; or (iii) is required to be disclosed by law.

8. CONFIDENTIALITY

8.1 Supplier acknowledges and agrees that:
(i) any and all Intellectual Property right owned by LumApps is the sole and exclusive property of LumApps; (ii) it shall not acquire any ownership interest in any of LumApps’ Intellectual Property right under these Terms.

8.2 Subject to Section 8.3, to the extent that any Supplier’s Intellectual Property rights are incorporated into Deliverables, Supplier assigns, as and when they are made, to LumApps:

• the full and entire tangible property of the Deliverables;
• all the intellectual property rights on the Deliverables and the results of the Services, for any exploitation, and on any type of media, whether existing or future. These rights consist of the reproduction rights, use rights, performing rights, publication rights, publishing rights, adaptation rights, modification rights, correction rights, development rights, incorporation rights, transcription rights, translation rights, digitization rights and marketing rights in any manner and in any form whatsoever.  

This assignment is royalty-free, worldwide, perpetual, irrevocable.

8.3 Nothing in the Agreement is intended to affect the Supplier’s ownership of materials used or developed by it independently of the Services or the Supplier’s generic methodologies, tools, technology or processes which are used by it (but not developed by it) in the performance of the Services (together the “Supplier’s Pre-Existing Materials”). If the Supplier’s Pre-Existing Materials (or part thereof) are incorporated in the Deliverables, or required to use or exploit the Services, the Supplier hereby grants to the Customer a perpetual, worldwide, irrevocable, nonexclusive, royalty-free license to use the Supplier’s Pre-Existing Materials to enable LumApps to obtain the full benefit of the Services.

The Supplier warrants and represents that it has the right to assign or license all Intellectual Property rights granted or assigned pursuant to this Agreement and that the grant and terms of its respective assignment or license shall not infringe the Intellectual Property Rights of any third party.

8.4 If Supplier becomes aware of any threatened or actual unauthorized use of LumApps Intellectual Property rights, Supplier shall immediately notify LumApps in writing, setting out the facts in reasonable details. Supplier will at LumApps request give all reasonable co-operation to LumApps in any action, claim or proceedings brought or threatened  in respect of LumApps Intellectual Property rights.

9. TERMINATION

9.1 Termination. Either party may terminate the Agreement immediately upon written notice to the other (i) in the event of a breach of the Agreement by the other party which breach is not remediable or, if remediable, is not remedied within thirty (30) days’ prior notice; (ii) the other party becoming insolvent, entering into liquidation, whether voluntary or compulsory, having a receiver or administrator appointed over the whole or any part of its assets, making any composition or arrangement with its creditors or taking or suffering any similar action in consequence of its debt.

9.2 Effect of termination. Upon termination of the Agreement for any reason: (i) Supplier shall cease using any LumApps materials; (ii) each party shall immediately deliver to, or dispose of as directed by, the other party any and all materials and property belonging or relating to the other party then in its possession, custody or control, and shall certify upon request in writing to the other party that the same has been done; (iii) Supplier shall deliver to LumApps all Deliverables then in Supplier’s possession or control; (iv) provisions of the Agreement which either are expressed to survive its termination or from their nature or context it is contemplated that they are to survive such termination, shall remain in full force and effect notwithstanding such termination.

10. GOVERNING LAW AND JURISDICTION

These Terms and any disputes or claims relating to or in connection with these Terms  are governed by the:
(i) laws of Delaware and state and federal courts sitting in the State of Delaware will have exclusive jurisdiction if the PO is with LumApps, Inc.; (ii) laws of Singapore and state and federal courts sitting in the State of Singapore will have exclusive jurisdiction if the PO is with LumApps K.K.; (iii) laws of England and courts sitting in England will have exclusive jurisdiction if the PO is with LumApps Limited; (iv) laws of France and courts sitting in Lyon will have exclusive jurisdiction if the PO is with LumApps SAS.

11. MISCELLANEOUS

11.1 The relationship of the parties is that of independent contractors. Except as otherwise stated in these Terms, nothing in the Agreement shall constitute the parties as partners, joint venturers or co-owners, or constitute either party as the agent, employee or representative of the other, or empower either party to act for, bind or otherwise create or assume any obligation on behalf of the other, and neither party shall hold itself out as having authority to do the same.

11.2 Supplier may not assign, transfer, charge, sub-contract or otherwise dispose of these Terms or any of its rights or obligations arising hereunder without the prior written consent of  LumApps. LumApps may assign the Agreement to its affiliates or to any third party in connection with any merger, acquisition, re-structuring, disposal, change of control, or sale or other transaction in relation to all or part of Lumapps’ business and/or assets.

11.3 To the extent that LumApps has authorized Supplier to subcontract, Supplier acknowledges that any such sub-contracting shall not release Supplier from any of its contractual obligations hereunder and Supplier shall remain fully responsible to LumApps for the proper and complete discharge of all such obligations.

11.4 Any valid alteration to or variation of these Terms must be in writing and signed on behalf of each of the parties by a duly authorized officer.

11.5 Notice: written notice under this Agreement may be given by email to Supplier’s contact email specified in the PO.

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