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Term and Conditions of Sale and Services

These Terms and Conditions of Sale and Services (“Terms”) govern the purchase of products and/or services from LuminUltra. These Terms together with the quote generated for the purchaser of goods and/or services (the “Quote”) referencing these Terms (collectively, the “Agreement”) form a binding legal agreement between the purchaser identified in the Quote (the “Customer”) and the applicable LuminUltra entity specified in the Quote, being one of:  (a) LuminUltra Technologies Inc.; (b) LuminUltra Technologies Ltd; and (c) LuminUltra Technologies SAS (the applicable entity is referred to herein as “LuminUltra”).

The first of the following acts constitutes Customer’s acceptance of LuminUltra’s Agreement: (i) the date Customer communicates its acceptance of the Quote; (ii) the date the Customer issues a purchase order; or (iii) the Customer’s receipt of Products, Services and/or Training from LuminUltra (as defined below).

These Terms, as may be amended by LuminUltra from time to time and made available to Customer or posted on LuminUltra’s website, will apply to each subsequent order placed by Customer for Products, Services, and/or Training, whether or not such subsequent order references a new Quote or expressly incorporates these Terms. Where these Terms reference “Quote” they will also be deemed to include “Quote and any subsequent order”, as applicable. 

LuminUltra and the Customer (collectively the “Parties” or individually the “Party” as the case may be) wish to enter into this Agreement pursuant to which the Customer seeks to obtain from LuminUltra (i) any and all goods provided by LuminUltra, such as test kits, sample collection devices, analyzers, equipment, instruments and associated components (“Products”); (ii) any and all professional services performed by or on behalf of LuminUltra for the Customer, including data analysis, sample analysis and related services performed in connection with the examination, measurement, verification or evaluation of samples or materials provided by the Customer (the “Services”); and/or (iii) Training (as defined below), as described in the Quote.

These Terms establish the rights, obligations and remedies of LuminUltra and Customer which apply to this offer and any resulting order or contract for the sale of LuminUltra’s goods and/or services.

The Customer and LuminUltra agree as follows:

If purchasing PRODUCTS, the following terms apply:

  1. Purchase of Products. If applicable, LuminUltra shall sell to the Customer, and the Customer shall purchase from LuminUltra, the Products in the quantities and at the Prices (as defined below) set forth in the Quote, and upon the terms and conditions set forth in this Agreement.
  2. Delivery. The Products will be shipped within a reasonable time after the Customer’s acceptance of this Agreement, subject to the availability of finished Products. LuminUltra shall not be liable for any delays, loss or damage in transit.

    LuminUltra shall ship the Products to the address of the Customer specified in the Quote (the “Customer’s Address”) using LuminUltra’s standard methods for packaging and shipping such Products and at the Customer’s sole expense. LuminUltra shall give notice to the Customer in writing that the Products have been shipped.

    LuminUltra may, in its sole discretion, without liability or penalty, make partial shipments of the Products to the Customer, as such units become available, to fulfill the Quote in multiple batches. Each shipment will constitute a separate sale, and the Customer shall pay for the units shipped whether such shipment is in whole or partial fulfilment of the quantity purchased under this Agreement.
  3. Non-Delivery. The quantity of any instalment of Products as recorded by LuminUltra on dispatch from LuminUltra’s place of business is conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
  4. Title and Risk of Loss. Title and risk of loss or damage passes to the Customer upon departure from LuminUltra’s facility, provided that LuminUltra shall bear risk of loss for non-delivery or mis-delivery of Products to the extent caused by LuminUltra’s error, such as mislabeling the Customer’s shipping address. Where LuminUltra has extended a credit to the Customer, title to the Products shall remain with LuminUltra and shall not pass to the Customer until LuminUltra has received payment in full for all amounts owing in respect of those Products and all other amounts then due and owing by the Customer to LuminUltra under this Agreement. Until title passes, the Customer holds the Products as bailee for LuminUltra.
  5. Inspection and Rejection of Non-Conforming Products. The Customer shall inspect the Products upon receipt thereof. The Customer will be deemed to have accepted the Products unless Customer notifies LuminUltra in writing of any Non-Conforming Products within ten (10) days of delivery and furnishes such written evidence or other documentation as reasonably required by LuminUltra. “Non-Conforming Products” means only the following: (i) Product shipped is different than Product identified in the Quote; or (ii) Product’s label or packaging incorrectly identifies its contents.

    If the Customer notifies LuminUltra of any Non-Conforming Products within the ten- (10-) day period, LuminUltra shall, in its sole discretion, (i) replace such Non-Conforming Products with conforming Products, or (ii) credit or refund the Price for such Non-Conforming Products. The Customer shall ship the Non-Conforming Products using the shipping label provided by LuminUltra to LuminUltra’s facility located at the address specified in the Quote within ten (10) days of LuminUltra’s written request. If LuminUltra exercises its option to replace Non-Conforming Products, LuminUltra shall, after receiving the Customer’s shipment of Non-Conforming Products, ship to the Customer the replaced Products to the Customer’s requested address.

    The Customer acknowledges and agrees that THE REMEDIES SET FORTH IN THIS SECTION ARE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR THE DELIVERY OF NON-CONFORMING PRODUCTS. All sales of Products to the Customer are made on a one-way basis and, unless otherwise specifically provided herein, the Customer has no right to return Products purchased under this Agreement to LuminUltra.
  6. Warranties on Products. LuminUltra warrants to Customer that for a period of one (1) year from the purchase date or for such period required by applicable law (in the European Union, the required period being two (2) years) (“Warranty Period”), the Products shall (i) perform substantially in accordance with LuminUltra’s user manual and instructions accompanying the specific Product; and (ii) shall be free of defects in material and workmanship (the “Warranty”).

    If the Product does not comply with the Warranty within the Warranty Period (the “Defective Product”), LuminUltra’s sole obligation and Customer’s sole and exclusive remedy will be: (a)  to repair or replace, as determined in LuminUltra’s sole discretion, the defective parts without charge, or (b) to refund the Price paid for the Defective Product (“Warranty Remedy”). THE WARRANTY REMEDY IS THE CUSTOMER’S SOLE REMEDY AND LUMINULTRA’S ENTIRE LIABILITY FOR DEFECTIVE PRODUCTS. The Warranty does not apply where the Defective Product:
  1. has been subject to abuse, misuse, mishandling, improper storage, neglect, improper handling, improper testing, improper care, maintenance, abnormal environmental conditions, abnormal physical stress, or use contrary to LuminUltra’s instructions, such as the user manual;
  2. is the result of accidents such as natural or man-made disasters;
  3. has been dropped;
  4. has been reconstructed, repaired, or modified by persons other than LuminUltra or its authorized representatives;
  5. is the result of Customer’s failure to follow LuminUltra’s instructions, such as following recommended sample chamber replacement intervals; 
  6. been used with any third party product or software that has not been previously approved in writing by LuminUltra; or
  7. the Defective Product is the result of the use of an incorrect adapter or battery.

The Warranty does not cover any damage to a Defective Product incurred during shipment to LuminUltra for repair where such damage arises from Customer’s failure to properly package the Defective Product. For the avoidance of doubt, the Warranty does not cover incidental or consequential costs, expenses, or damages resulting from the breach of any express or implied warranty including any costs of programs, data stored, damages to property, and damages for personal injury.

Warranty Return Procedure. In order to make a Warranty claim, the Customer must contact LuminUltra through the means provided at my.luminultra.com or through its account manager and describe in writing any problem, defect, or failure in reasonable detail. LuminUltra will determine whether the issue qualifies as a Warranty claim. For valid Warranty returns, LuminUltra will provide return waybills for the Defective Product; however, it is the Customer’s responsibility to schedule and arrange pick-up of the Defective Product. The Customer must return any Defective Product packaged in the original box or packaging, including all components supplied with the Defective Product.

Replacement Product Warranty. The Warranty for any replacement of the Defective Product shall commence upon receipt by the Customer and shall continue for the remainder of the original Warranty Period or for thirty (30) days from receipt of the replacement, whichever is longer, unless otherwise required by applicable law. After the Warranty Period has expired, repair and/or replacement costs required to recover the original functions of a Defective Product will be charged to the Customer.

  1. Extended Warranty. The Customer may, at its election, obtain an extended warranty for Products acquired from LuminUltra (the “Extended Warranty”) for an additional fee. If purchased, as indicated in the applicable Quote, LuminUltra agrees to provide the Extended Warranty for the period and at the price indicated in the applicable Quote. With the exception of the Warranty Period, the Extended Warranty shall be subject to the same conditions as the Warranty as set out in Section 6 of these Terms. For clarity, any refund issued will exclude the price of the Extended Warranty.
  2. End of Life Product Management. The Customer acknowledges that the Products may be subject to electronic waste, recycling, extended producer responsibility, and similar environmental laws and regulations applicable in the Customer’s jurisdiction (collectively, “Applicable E-Waste Laws”). The Customer shall not disassemble the Products for safety reasons. At end of life, the Customer shall dispose of the Products in accordance with all Applicable E-Waste Laws and LuminUltra’s recycling instructions available at luminultra.com/export-environmental-compliance. To return a used Product for recycling, the Customer shall contact LuminUltra at my.luminultra.com with the unit’s serial number and purchase date, and a LuminUltra representative will provide instructions on next steps. The Customer shall not ship any Products for recycling or disposal without LuminUltra’s prior written authorization. LuminUltra shall comply with its obligations as a producer or manufacturer under Applicable E-Waste Laws, including any applicable registration, collection, or funding requirements in the jurisdictions in which it places Products on the market.

If obtaining SERVICES from LuminUltra, the following terms and conditions shall apply:

  1. Performance of Services. If applicable, LuminUltra shall perform the Services described in the Quote in a manner consistent with that degree of care, skill and diligence as is ordinarily exercised by a professional contractor under similar conditions and circumstances and performing similar services. Each individual whom LuminUltra engages to perform the Services will possess the qualifications, licences, skills and experience needed to perform such services.

    LuminUltra shall use commercially reasonable efforts to meet any performance dates specified in the Quote, however, any such dates shall be estimates only.

    LuminUltra will comply with all federal, state/provincial and local laws, rules and regulations applicable to the performance of its obligations under this Agreement.

    Upon completion of the Services, LuminUltra shall provide the Customer with a report, as applicable, of the findings from the Services (the “Report”) in a form and manner prescribed by LuminUltra.
  2. Customer’s Obligations. The Customer shall cooperate with LuminUltra in all matters relating to the Services and provide such accommodation as may be reasonably requested by LuminUltra for the purposes of performing the Services, and shall provide such Customer Materials (as defined below) as LuminUltra may request to carry out the Services in a timely manner and ensure that such Customer Materials are complete and accurate in all material respects.
  3. Sample/Data Submission. The Customer may, from time to time and at the Customer’s sole expense, provide data, samples or other materials (“Materials”) to LuminUltra to be tested or otherwise used in connection with the performance of the Services. The Customer represents, warrants and covenants that the Customer has all right, licenses, consents, permissions, title and interest in and to any Materials provided to LuminUltra, or that it has the right to provide such Materials to LuminUltra in connection with the Services.
  4. Retesting and Correction of Report and Liability Limitation. The Customer may request that LuminUltra re-perform any Services completed, and/or review the substance and accuracy of any related Report produced, by or on behalf of LuminUltra hereunder; or correct any inaccuracies or errors in any such Report. If, upon completing the retesting reanalysis, LuminUltra confirms its original Report results, then the Customer will be charged for the retesting or reanalysis performed by LuminUltra in accordance with this Agreement. However, the Customer will not be charged for any retesting or reanalysis performed by LuminUltra to correct any inaccuracies, or errors made by LuminUltra, in the Services and/or Report originally performed or produced by LuminUltra. Retesting or reanalysis performed by LuminUltra shall be Customer’s SOLE AND EXCLUSIVE REMEDY FOR ANY ERRORS AND INACCURACIES IDENTIFIED DURING THE RETESTING OR REANALYSIS. 

If obtaining TRAINING from LuminUltra, the following terms and conditions shall apply:

  1. Training. If applicable, LuminUltra shall provide Customer with access to its online learning centre (MyLuminUltra) and shall make available reasonable onboarding support to assist Customer in the initial deployment and use of the Software and purchased Products. Additional training services, including scheduled virtual sessions or in-person instruction, are offered on a request basis and shall be provided pursuant to a separate statement of work or order form at LuminUltra’s then-current rates (“Training”). LuminUltra shall use reasonable efforts to meet preferred Training dates, however, any specified dates shall be estimates only.  The Customer acknowledges that LuminUltra makes no warranty regarding the results to be attained by using the Training. LuminUltra shall provide all Training at LuminUltra’s facilities or an otherwise mutually agreed location, or remotely by means of a videoconference or online portal. LuminUltra shall provide all equipment, including software, necessary to provide the Training.
  2. LuminUltra’s Covenants. Subject to any other part of this Agreement, LuminUltra covenants (i) to designate a primary point contact with authority to act on behalf of LuminUltra in connection with the Training, and (ii) to provide LuminUltra personnel who shall be suitably skilled, experienced and qualified to perform the Training.
  3. Customer Covenants. The Customer shall not without LuminUltra’s prior written consent copy, distribute or (other than during the applicable Training session) use any Training session material, including slide decks or use recording equipment in Training sessions.
  4. Safe Use. Customer shall ensure that all personnel operating LuminUltra Products wear appropriate personal protective equipment (“PPE”) in accordance with applicable safety data sheets, Product documentation, and all applicable workplace health and safety laws and regulations. Without limiting the foregoing, Customer acknowledges that (a) certain Products are electrical equipment and present risks including, but not limited to, electrical shock and physical injury due to improper handling, and (b) certain Products, such as test kits, contain hazardous chemical reagents that must not be ingested or permitted to come into contact with skin or eyes. LuminUltra shall not be liable for any injury, loss, or damage arising from Customer’s failure to comply with this Section. Customer shall be solely responsible for providing its personnel with adequate PPE and for enforcing compliance with all safe-use protocols communicated by LuminUltra from time to time. The Customer shall also cause each of its personnel who are receiving Training to execute a release of liability and assumption of risk in form and substance satisfactory to LuminUltra.
  5. Trainer Compensation. LuminUltra is responsible for compensating LuminUltra personnel in connection with the Training, including, if applicable, the withholding of income taxes, and the payment and withholding of Canada Pension Plan contributions, employment insurance premiums and other payroll taxes, workers’ compensation insurance payments and disability benefits.

The following additional terms SHALL APPLY to any and all Products, Services and Training provided by LuminUltra to the Customer:

  1. Customer’s Acts or Omissions. If LuminUltra’s performance of any of its obligations under this Agreement is prevented or delayed by any act or omission of the Customer or its agents, subcontractors, consultants or employees, LuminUltra shall not be deemed to be in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by the Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
  2. Subcontracting. LuminUltra may subcontract the performance of its obligations and any Services or Training under the Agreement provided LuminUltra shall remain responsible for ensuring all subcontractors’ compliance with the terms of the Agreement.
  3. Use of Software. If the Products and/or Services the Customer is purchasing includes any accompanying Software or access to Software provided by LuminUltra (the “Software”) such as LuminUltra’s Relay™LuminUltra, the use of said Software shall be subject to LuminUltra’s End User Licence Agreement (“EULA”), a copy of which shall be available with the Software or the use thereof and upon request to LuminUltra.
  4. Payment. The Customer shall purchase any Products, Services and/or Training from LuminUltra at the prices (the “Prices”) set forth in the Quote. Prices set forth in the Quote are valid for the period specified therein. All Prices are exclusive of all harmonized sales tax, goods and services tax, sales tax, valued added tax, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by the Customer. The Customer shall be responsible for all such charges, costs and taxes. Freight is not included in any Prices and Customer is responsible for all freight costs if shipping is not separately purchased from LuminUltra.

    The Customer shall pay all invoiced amounts due to LuminUltra at the earlier of the time specified in the Quote or within thirty (30) days from the date of LuminUltra’s invoice. The Customer shall make all payments hereunder by wire transfer or credit card and in the currency contemplated in the Quote. The Customer shall pay interest on all late payments at the lesser of the rate of 1% per month (12% per annum), calculated daily and compounded monthly. The Customer shall reimburse LuminUltra for all costs incurred in collecting any late payments, including, without limitation, legal fees on a substantial indemnity basis.
  5. Set-Off. The Customer shall pay all amounts due under this Agreement in full without any deduction, withholding, or set-off, except as otherwise required by applicable law. LuminUltra may, without limiting its other rights or remedies, set off any amount owed to it by the Customer against any amount payable by LuminUltra to the Customer under this Agreement or any other agreement between the Parties.
  6. Amendments and Other Agreements. This Agreement may be amended or modified by written agreement executed by the authorized representatives of both Parties. NOTWITHSTANDING THE PRECEDING SENTENCE, LUMINULTRA MAY UNILATERALLY AMEND THESE TERMS, IN WHOLE OR IN PART BY: (i) giving Customer notice of such amendments; or (ii) posting notice of such amendments on LuminUltra’s website. Unless otherwise indicated by LuminUltra, any such amendment will become effective as of the date of the notice of such amendment is provided to Customer or posted on LuminUltra’s website, whichever is earlier. In the event of any inconsistencies between any prior agreement between the Parties and this Agreement, the provisions of this Agreement shall prevail.
  7. Confidential Information. In connection with this Agreement, each Party may have access to or be exposed to information of the other Party that is not generally known to the public, such as information pertaining to software, data, reporting, pricing, marketing, know-how and trade secrets, which may be designated as confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential (collectively, “Confidential Information”). “Confidential Information” shall not include information that the receiving party can show through written records (1) was already known or independently developed by the receiving party without access to the disclosing party’s Confidential Information; (2) is or becomes public knowledge through no fault of the receiving party; or (3) is rightfully received by the receiving party from a third party without a duty of confidentiality.

    The recipient party hereby agrees that during the term of this Agreement and at all times thereafter, it will not, except to exercise its license rights or perform its obligations under the Agreement: (i) disclose Confidential Information of the disclosing party to any person, except to its own personnel or affiliates having a “need to know” and are bound by confidentiality obligations no less protective of the Confidential Information than the terms contained herein; (ii) use Confidential Information of the disclosing party; or (iii) alter or remove from any Confidential Information of the disclosing party any proprietary legend.

    Notwithstanding the foregoing, the receiving party may disclose the disclosing party’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the receiving party promptly notifies the disclosing party in writing of such required disclosure and cooperates with the disclosing party to seek an appropriate protective order; or (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business.

    The recipient party shall protect the Confidential Information from unauthorized use, access or disclosure using no less than a commercially reasonable degree of care.
  8. Representations & Warranties. LuminUltra hereby represents and warrants that it has the power and authority to enter into this Agreement, and is duly licenced, authorized and qualified to perform its obligations under this Agreement.

    The Customer hereby represents and warrants that it has the power and authority to enter into this Agreement.

    EXCEPT TO THE EXTENT OF THE LIMITED WARRANTIES SET FORTH IN THESE TERMS, AND NOTWITHSTANDING ANY PROVISION TO THE CONTRARY CONTAINED HEREIN OR IN ANY PURCHASE ORDER, REPORT, USER MANUAL OR OTHER STATEMENT OR INSTRUMENT, LUMINULTRA MAKES NO OTHER WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED, OR STATUTORY, WITH RESPECT TO THE PRODUCTS, SERVICES OR TRAINING INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE AND USAGE. NOTHING IN THIS SECTION SHALL EXCLUDE OR LIMIT ANY WARRANTY OR LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, INCLUDING ANY MANDATORY RIGHTS THAT MAY APPLY TO CUSTOMERS UNDER THE LAWS OF THEIR COUNTRY OF ESTABLISHMENT.

    FOR THE AVOIDANCE OF DOUBT, TO THE EXTENT PROHIBITED BY LAW, NOTHING IN THIS SECTION LIMITS OR EXCLUDES ANY LIABILITY OF LUMINULTRA FOR DEATH OR PERSONAL INJURY CAUSED BY A DEFECTIVE PRODUCT OR FOR ANY OTHER LOSSES OR DAMAGE THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE MANDATORY PRODUCT-LIABILITY OR SAFETY LAW.

    THE PARTIES ACKNOWLEDGE THAT ANY AND ALL PRODUCTS SUPPLIED UNDER THIS AGREEMENT ARE NOT “CONSUMER PRODUCTS” UNDER ANY APPLICABLE LEGISLATION.
  9. International Sale of Goods Matters. The Customer and LuminUltra agree to expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement.
  10. Trade Compliance. Customer represents and warrants that it is not listed on or directly or indirectly majority owned or otherwise controlled by, and shall not engage with, any party listed on an applicable government restricted party lists including but not limited to those maintained by the United States Government (e.g. Specially Designated List, the Entity List, Denied Persons List), the Canadian government (Consolidated Canadian Autonomous Sanctions List), or the European Union (Consolidated List Of Persons, Groups And Entities Subject To EU Financial Sanctions), or the United Nations (the UN Security Council Consolidated List).

    Customer also represents and warrants that it will not transfer or reexport any of LuminUltra’s goods, technology, technical data or services to comprehensively sanctioned or otherwise prohibited countries and territories, currently including but not limited to Iran, North Korea, Syria, Crimea, Donetsk, Luhansk, or other Russian controlled territory in Ukraine, Cuba (if Customer is a U.S. person) and Venezuela.

    Customer acknowledges and accepts that LuminUltra’s products, technologies, technical data and services (“Items”) may be subject to export control, sanctions laws and regulations, including but not limited to those of Canada and the United States of America (e.g. Canadian Export Control List, U.S. Export Administration Regulations).

    The Customer agrees that it shall not export, re-export, transfer, disclose, or use any Items subject to this Agreement in any manner contrary to applicable export control and sanctions laws. This includes, but is not limited to, directly or indirectly:
  1. exporting or re-exporting Items to any country, entity, or individual subject to export restrictions and/or sanctions without first obtaining all necessary government authorizations, licenses, or approvals;
  2. distributing or using Items in support of end-uses related to weapons of mass destruction, including nuclear, chemical, or biological weapons, or missile technology, or any other prohibited end-uses or end-users;
  3. transferring Items to military or defense end-users or for military or dual-use end-uses unless such transfers are authorized under applicable export control laws and regulations.

Where the end user may be a military or defense related entity, the Customer shall ensure that all required export licenses, permits, or other regulatory approvals have been obtained prior to any transfer.

Customer shall also maintain accurate and complete records for a minimum of ten (10) years from time of purchase documenting the end user, end use, destination, and all associated licenses or authorizations. Such records shall be made available to LuminUltra upon reasonable request, and to regulatory authorities as required by law.

Please review the requirements by government authorities in relation to same, as may be updated from time to time. A breach of this provision by the Customer shall be considered a material breach of this Agreement.

  1. LuminUltra Not Liable. Any sample Report will relate only to those specific samples tested by LuminUltra in the provision of the Services, and in no way can be taken or relied upon as being representative of any other portion of the lot or batch from which such samples were taken. LuminUltra assumes no responsibility for the purposes for which the Customer or any third party uses any Report, and the Customer may not and will not, under any circumstances, hold out or represent to any third party that LuminUltra has in any way whatsoever certified, guaranteed or otherwise passed judgment on the efficacy of any results derived from the performance of LuminUltra’s services, except to the extent LuminUltra has certified it has performed the services in accordance with this Agreement.
  2. Maximum Liability of LuminUltra. IN NO EVENT WILL LUMINULTRA BE LIABLE FOR ANY SPECIAL, TREBLE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGE TO OR LOSS OF PROPERTY; DAMAGES INCURRED IN INSTALLATION, REPAIR OR REPLACEMENT; LOST PROFITS, REVENUE OR OPPORTUNITY; LOSS OF USE, OR CLAIMS OF ANY CUSTOMERS OR OTHER THIRD PARTIES OF CUSTOMER FOR SUCH DAMAGES, HOWSOEVER CAUSED, AND WHETHER BASED ON WARRANTY, CONTRACT, AND/OR TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE). IN NO EVENT SHALL LUMINULTRA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO LUMINULTRA PURSUANT TO THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
  3. Indemnification. The Customer shall defend, indemnify, and hold harmless LuminUltra, its affiliates, and their respective directors, shareholders, officers, employees, agents, contractors, successors, and assigns from and against any third-party claims, damages, losses, penalties, fines, liabilities, costs, and expenses (including reasonable legal fees) arising out of or relating to: (a) the Customer’s misuse of the Products, Software, Services or Training; (b) the Customer’s breach of this Agreement, including governmental penalties and fines imposed from Customer’s breach of Section 19 (Trade Compliance); or (c) any Materials provided by the Customer to LuminUltra in connection with the Services, including any claim that such Materials infringe the intellectual property rights of a third party.

    LuminUltra shall defend, indemnify, and hold harmless the Customer from and against any third-party claim alleging that the Products or Software, as provided by LuminUltra and used in accordance with this Agreement, infringe any Canadian, U.S., or European Union patent, copyright, or trade secret of a third party, provided that: (a) the Customer promptly notifies LuminUltra in writing of such claim; (b) LuminUltra has sole control of the defense and settlement of such claim; and (c) the Customer provides reasonable cooperation at LuminUltra’s expense. LuminUltra’s obligations under this Section shall not apply to the extent any claim arises from: (i) modification of the Products or Software by any party other than LuminUltra; (ii) combination of the Products or Software with products, services, or technology not provided by LuminUltra; or (iii) the Customer’s use of the Products or Software other than in accordance with this Agreement.

    If any Product or Software becomes, or in LuminUltra’s reasonable opinion is likely to become, the subject of an infringement claim, LuminUltra may, at its sole option and expense: (a) procure for the Customer the right to continue using the affected Product or Software; (b) modify the affected Product or Software so that it becomes non-infringing, provided that such modification does not materially diminish the functionality of the Product or Software; (c) replace the affected Product or Software with a non-infringing equivalent that is functionally comparable; or (d) if none of the foregoing alternatives is commercially practicable, terminate the Customer’s right to use the affected Product or Software.

    THIS SECTION 22 STATES THE ENTIRE LIABILITY OF LUMINULTRA AND THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE PRODUCTS OR SOFTWARE. LUMINULTRA’S AGGREGATE LIABILITY UNDER THIS SECTION 22 SHALL BE SUBJECT TO THE LIMITS OF LIABILITY UNDER SECTION 21.
  4. Term. Unless terminated earlier in accordance with the Agreement, the Agreement is effective until: (i) with respect to Products, expiration of applicable warranty periods; and (ii) with respect to any Services and Training, upon the completion of such services.
  5. Notice. Shall mean all notices, requests, consents, claims, demands, waivers and other communications under this Agreement. All notices shall be delivered in writing (including without limitation by personal delivery, courier, regular mail, email, or facsimile) and addressed to the other Party at the addresses set forth in the Quote. Except as otherwise provided in this Agreement, a notice is effective only upon receipt by the receiving party and if the party giving the notice has complied with the requirements of this Section.
  6. Independent Contractor. LuminUltra is and shall remain at all times an independent contractor and not an employee nor dependent contractor of the Customer. Nothing in this Agreement shall be construed to create any association, partnership, joint venture, agency, fiduciary, or employment relationship between LuminUltra and the Customer, for any purpose, and neither party has the authority to contract for or bind the other party in any manner whatsoever.
  7. Force Majeure. No party shall be liable or responsible to the other party, nor deemed to be in default or in breach of this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from a Force Majeure Event. “Force Majeure Event” means (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labour stoppages or slowdowns or other industrial disturbances; (i) shortage of adequate power or transportation facilities; and (j) other similar events beyond the reasonable control of the party impacted by the Force Majeure Event. The impacted party shall give notice within 30 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue.
  8. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trade-marks, service marks, trade secrets, know- how and other confidential information, trade dress, trade names, logos, corporation names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product or other materials that are delivered to the Customer under this Agreement or prepared by or on behalf of LuminUltra in  the course of performing its obligations under this Agreement, including Products, Reports, Software, user manual, training materials, Training and Services, shall be owned at all times by LuminUltra. Subject to Customer’s payment of the Price and compliance with the terms of this Agreement, LuminUltra hereby grants the Customer a licence to use the Reports, user manual and any training material on a non-exclusive, worldwide, non-transferable (except in accordance with the assignment clause), non-sublicenceable, royalty-free and perpetual basis to the extent necessary to enable the Customer to make reasonable use of any Products, and Services contemplated under this Agreement.

    The Customer hereby grants to LuminUltra a non-exclusive, worldwide, fully-paid up, non-transferable (except in accordance with the assignment clause), royalty-free license to access, use, copy, process, store, transmit, and display Customer Materials: (i) to perform the Services contemplated under this Agreement; (ii) to host, operate, and provide the Software (including Relay™LuminUltra) to the Customer; (iii) to generate Reports to the Customer under this Agreement; and (iv) to provide technical support and maintenance in connection with the Products and Software.

    LuminUltra may: (i) use feedback, suggestions, or recommendations provided by Customer or its personnel in connection with its products or services (“Feedback”); and (ii) collect, use, create, and disclose aggregated data (“Aggregated Data”), including benchmarking, analytics, product improvement, and industry reporting, provided that such aggregated data does not identify Customer or any individual, for any purpose, including to improve, develop, or enhance LuminUltra’s products and services, without restriction or obligation to Customer. Customer waives all rights it or its representatives have or may have, including all Intellectual Property Rights, in and to Feedback and Aggregated Data, and hereby assigns to LuminUltra all of Customer’s rights in and to Feedback and Aggregated Data and will cause its representatives to assign all of such persons’ rights to LuminUltra and to waive all moral or similar rights that its representatives have to LuminUltra.
  9. No Exclusivity. LuminUltra shall provide the Products, Services and/or Training (as applicable) to the Customer on a non-exclusive basis and shall be free to provide its goods and/or services to third parties.
  10. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable, such deficiency shall not affect any other term of this Agreement, or invalidate or render unenforceable such term or provision in any other jurisdiction.
  11. Assignment. This Agreement may not be assigned by either party or by operation of law without the prior written consent of the other party. This Agreement will enure to the benefit of and be binding upon the Parties their successors and permitted assigns.
  12. Currency. All monetary amounts quoted herein are in the currency used in the Quote.
  13. Interpretation. When the context so requires, the singular will be read as the plural, and vice versa.
  14. Conflict. In the event of any conflict between the provisions of the Quote and any other terms of this Agreement, the provisions of the Quote shall prevail.
  15. Entire Agreement. This Agreement, including the Quote and any documents expressly incorporated by reference herein, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, warranties, and communications, whether written or oral, relating to the subject matter. Nothing in this Section shall exclude or limit any liability for fraud or fraudulent misrepresentation.
  16. Governing Law. If the LuminUtra entity specified in the Quote is based in: (i)  the United States, then the Agreement and any action related thereto will be governed by and construed in accordance with the laws of the State of Delaware; (ii) Canada, then the Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Province of New Brunswick; or (iii) Europe, then the Agreement and any action related thereto will be governed by and construed in accordance with the laws of the United Kingdom; and the  Parties submit to the exclusive jurisdiction of the courts of same.
  17. Survival. The following Sections, together with any other provision of the Agreement which expressly or by its nature survives termination or expiration or which contemplates performance or observance subsequent to termination or expiration of the Agreement, will survive expiration or termination of the Agreement for any reason: Section 8 (End of Life Product Management), 13 (Payment), 14 (Set-Off), 15-22, and 27 (Intellectual Property), and 28-35.