Software-as-a-Service ("SaaS") Terms ORTEC Load Optimization March 2019 Contents 1 Preamble 2 Definitions 3 These Terms 4 Type and Scope of Software 5 Account and Access Credentials 6 Subscriptions; Production and Testing Environment 7 Licenses Grant 8 Use with Third-Party Software 9 Use of Software Results 10 Term and Termination Term Termination by the Customer Termination by the Supplier Effects of Termination 11 Fees and Payment Terms 12 Service Levels 13 Support 14 Intellectual Property Rights No Transfer of Ownership No Implied Grants Covenant Not to Sue 15 Error Reporting and Feedback 16 Representations and Warranties EXCLUSION OF WARRANTIES 17 Indemnity 18 Limitation of Liability 19 Confidentiality 20 Governing Law and Dispute Resolution 1 Preamble ORTEC is one of the world's leading supply chain optimization software and services companies. With ORTEC Load Optimization – a cloud-based packing, loading optimization and collaboration product - ORTEC is bringing best-in-class packing and loading software algorithms for a broad range of industries. ORTEC Load Optimization is easy consumable or can be integrated by independent software vendors (ISV) in their own supply chain business software. ORTEC Load Optimization is provided as a Software-as-a-Service (SaaS) application and is constantly improved and further developed by ORTEC. This document is meant to define the general terms and conditions for Customers to use the web services and web applications provided by ORTEC with the ORTEC Load Optimization. 2 Definitions The following definitions are used in these terms and conditions. "Supplier" : The commercial party providing the Software, namely Click or tap here to enter text. "Customer" : The commercial party using the Software, namely Click or tap here to enter text. "Software" : All web services and web applications within ORTEC Load Optimization, including all related materials, such as product documentation, which are provided by the Supplier defined in the current product description of the Software. "Terms" : The following terms and conditions provided in this document for the usage of the Software. "Subscription" : A defined set of functionality of the Software related to one or multiple usage scenarios, defined in the current product description. "Availability" : The possibility to use a web service or a web application provided by the Supplier with the Software. "Non-Availability" : The impossibility to use a web service or a web application provided by the Supplier with the Software. "Third-Party Software" : Any other software in use by a Customer which is using the Software according to one or multiple subscriptions. "Content": Defines all data or other content of the software such as API, Services, Applications, 3D graphics, Hyperlinks, Documentation, Trademarks, Logos and commercial content of third-parties and all data and information provided in the context of using the software. "End-User" : means any kind of user type, such as a system user or a personal user. "Software-as-a-Service" : means the Software being provided by the Supplier for use by the Customer through the Internet on a subscription basis instead of buying a software license for on-premise installation and use. 3 These Terms 1. These Terms govern the use of the Software including the following documents: 1. the privacy policy available at https://ortec.com/en-gb/legal/privacy/; 2. the security policy available at https://ortec.com/en-gb/legal/ 3. the disclaimer available at https://ortec.com/en-gb/legal/gdpr/ 4. the product description available as Schedule 1, “ORTEC Load Optimization Product Description” October 2018; 5. the subscription defined in a separate offering from the Supplier or through an authorized distributor available as Schedule 2, “ORTEC Load Optimization Prize list” October 2018 2. In the event there is a conflict between these documents, the documents must be read as the top document having priority. These Terms are the highest in this hierarchy. 3. Upon accepting these Terms, they create a binding agreement between the Customer and the Supplier. 1. These Terms are accepted by: 1. signing of a separate offering that refers to these Terms; 2. clicking "accept" or "agree" or similar, where this option is made available; 3. using the Software; 2. By accepting these Terms, in any form thereof, the Customer or the person actually accepting and/or signing for the applicability of these Terms warrants to Supplier that it is authorized to do so and legally bind the Customer. Acceptance of these Terms by an unauthorized representative will lead to personal liability. 4. The Supplier reserves the right to change these Terms and conditions at any time. The Supplier shall provide the amended terms to the Customer via e-mail or make them available in its web portal. In order to continue using the Software, these changed terms must be accepted. If the changed terms are not accepted within the announced timeframe, access to the Software will be terminated by the Supplier. Any further use of the Software is deemed as full acceptance of the changed Terms. 4 Scope of Software 1. The Customer may determine the scope of use of the Software by selecting one or more Subscriptions according to the applicable product description and the applicable price list. The Customer also agrees to the terms and conditions of the Subscription, in particular the intended use, the further licensing conditions and the type of use. 2. The Supplier is striving to improve the Software continuously. Therefore the Supplier reserves the right to change the Software at any time. The Software will endeavor to inform all Customers about major changes as early as possible via e-mail or web portal. If such a change has such a disadvantageous effect on the Subscription used by the Customer, the sole and exclusive remedy may be termination of the Subscription by a formal, written termination to the Supplier. 5 Account and access credentials 1. The Customer shall receive for the period of an active Subscription, an exclusive, unique user account with exclusive, unique access credentials per Subscription. 2. The Customer is obliged to ensure that these access credentials cannot be used by third-parties or for purposes other than the agreed upon use of the Software according to the Subscription. In the event that the Customer is aware of the possibility of misuse or loss of access credentials, he shall inform the Supplier immediately. 3. In the event that the Customer violates an existing security measure set up by the Supplier or violates a condition defined by the Supplier for the use of the Subscription, the Supplier reserves the right to immediately terminate the use of the Software by the Customer and to block access and, if necessary and to its sole discretion, terminate the Subscription. 6 Subscriptions; production and testing environment 1. The Supplier provides Subscriptions for the use of the Software in various application cases. These Subscriptions are defined in the product description or have been offered to the Customer exclusively by the Supplier or an authorized distributor of the Supplier. 2. The Customer must comply with the application, license and usage conditions described in the Subscription. In the event that the Customer wishes a use other than that described in the Subscription, this can be done by changing the Subscription. A change is made in consultation with the Supplier and usually takes effect with the effect of the next billing period for the Subscription. Differences for an increase / decrease in the Subscription are calculated on a pro rata basis. Differences for a reduction of the Subscription are not refundable or redeemable. 3. Depending on the type of Subscription chosen, the Customer has access to the test and/or productive environment. The use of the Software in the test environment is expressly permitted only for test purposes. The Customer must set up an integration or the use of the productive environment for a productive use of the Software and have an active Subscription corresponding to the usage. 4. For each Customer and Subscription, there is a maximum of one (1) access authorization to a test environment at no additional charge. 5. Paid commercial Subscriptions and any charges for all plans will be charged against all environments. 7 Licenses grant 1. Subject to compliance with these Terms by the Customer, the Supplier grants Customer one of the following licenses: If the Customer has opted for a commercial Subscription (whether free or paid), distribute a non-exclusive, non-transferable, non-sublicensable, revocable, limited license to use the applicable functions and components defined in the Subscription and / or make it accessible to the End-Users through one (1) specified Customer's third-party application per Subscription. If the Customer has chosen to subscribe for a test (whether free or paid), a non-exclusive, non-transferable, non-sublicensable, revocable, limited license to use and evaluate the applicable features and components specified in the Subscription for test purposes only and / or development of applications in the Third-Party Software for an integration of the Software, which is then used by the Customer's employees for internal evaluation. These applications are not to be used for commercial (including internal business purposes) or productive use. 2. No right, title or claim to the Contents of the Customer is transferred to the Supplier on the basis of these Terms. 3. However, the Supplier reserves the right to delete Contents of the Customer from the Software if the Supplier has reason to believe that the content is illegal, infringing or in any way abusive or otherwise inappropriate. 4. During the period of an active Subscription, the Customer grants to the Supplier and its subsidiaries a worldwide, royalty - free, non - transferable, non - exclusive, sublicensable license to use the trademarks, trade marks and logos including the names and descriptions of third-party software for the purpose of referencing as a Customer and to promote similar offers offered by the Supplier. Upon expiration or termination of the Subscription, the Supplier and its subsidiaries will terminate their use in a reasonable, practicable period. 5. The current system requirements for using the Software are described in the current product description in relation to the respective Subscription. 6. Under these licenses it is not allowed: To make the Software available to a third-party in whole or in part outside of the scope of the Subscription; To manipulate or remove the branding, copyrights or other communications of the Supplier; To create mash-ups, extended services, or similar if this leads to (I) the creation of a product or service competing for the software used, or (ii) it results in a deterioration of the perceived quality of the software used or (iii) this is an incorrect assignment of the results or contents of the Software used. To execute a query that (i) does not respond to End-User actions; Or (ii) the subsequent or automatic follow-up queries are related to an initial query or End-User action (eg, triggering the automatic request based on the search result of a End User); Or otherwise queries to the Software changes. To use the Software in connection with any unlawful, offensive, offensive, pornographic, harassing, defamatory or otherwise inappropriate content or materials. To use any data, content or services of the Supplier that are not defined in these Terms. To reconstruct, decompile, disassemble, or otherwise attempt to learn the source code of the Software or parts of the Software. Use the Software to perform load tests, performance tests, system tests, or any other tests that adversely affect the use of the Software. 7. In the case of an unauthorized transfer of use, the Customer shall promptly provide the Supplier with all information regarding the assertion of the claims against the user, in particular his name and address. 8. The use of the Software may be subject to restrictions defined in the Subscription. These restrictions may concern, for example, the number of transactions or the maximum permitted requests per second. The Supplier may, but is not obliged, to remind the Customer of the restrictions by e-mail or via the user account if the limits have been met or exceeded. If the usage restrictions are exceeded, fees for such additional use may arise and can be automatically incurred. These fees can be found in the respective Subscription. 9. The definition of the scope of a transaction and the relevant metrics for limitation of use and billing are described in the respective Subscription. 10. For each Third-Party Software, the "Queries per second" means the number of queries per second to the Software calculated as the average (number of requests for a period of 5 minutes) for each API in order to function on the Software as per the Subscription described function list. Restrictions to "Requests per second" are defined in the terms of the respective Subscription of the Customer. 11. The Software may not be available in or for all countries or territories and will only be available in selected languages. The Supplier expressly disclaims any representation or warranty that certain data, features or abilities are available. 8 Use with Third-Party Software 1. The Customer may connect and use the Software with one (1) Third-Party Software per Subscription via the API defined by the Supplier of the Software. The Customer ensures that the connection and use only takes place under these Terms and / or the terms of the Subscription. 2. The Supplier reserves the right to prohibit the integration and / or use with Third-Party Software for a Customer in individual cases. 3. A commercial or non-commercial exploitation of the integration of the Software or the provision of the functions in Third-Party Software is not permitted, unless this is expressly defined in the terms of the Subscription and / or the Customer and the Supplier have an exclusive agreement in writing to that effect. 4. Third-Party Software and use with the Supplier's Software shall meet the following requirements: 1. Each End-User must be informed of all legally required and otherwise appropriate instructions, warnings, notes, and safety information regarding the use of the Software and its use in accordance with the applicable laws. 2. the Software may not be used in combination with Third-Party Software or parts of the Third-Party Software that are designed or marketed for use in or with high-risk systems, devices, services or products that are critical to the health or safety of persons and property. 3. If the screen size of an application or other constraints prevents or limits results, End-Users must be provided with a noticeable notification that notifies the End-Users that the results cannot be displayed. 4. The results must be used according to the intended process according to the links provided in the result, and these links are accessible only by deliberate and specific user interaction. No links or automatic means can be implemented to access the links or other information within the results. All results must be used in accordance with the documentation and other instructions provided by the Supplier. 5. As far as reasonably practicable (taking into account confidentiality and business secrets), Customer will provide the Supplier with a copy or limited access to the prototype and commercial versions (if applicable) of the Third-Party Software upon request. The Supplier is authorized to use this Third-Party Software for public demonstration purposes in connection with the promotion of the Supplier's software and services, subject to appropriate instructions from the Customer (taking into account confidentiality and business secrets). 9 Use of Software Results 1. The Customer undertakes not to apply any results of the Software in connection with advertising, products or services of third parties. 2. Caching or storing content or results for the purposes of building a repository of content or results or scaling a request to serve third parties is prohibited. Content or results may not be used in a way that they are stored or stored (prefetch and / or caching) or stored, with the exception of: 1. The explicit permission by 'caching headers' (HTTP / 1.1 standard) in the return of the Software; 2. No more than thirty (30) days, as long as it is necessary for the use of the Software. 3. The Customer undertakes not to use or mix the contents of the Software with contents of third parties. It is permissible for the Customer to overlay his own content via the Content of the Software (including 3D graphics), provided that his own content is identifiable as independent and provided with appropriate sources. 4. Notwithstanding anything to the contrary in these Terms, Customer may not use or combine the Software (or any part thereof) with any other content, services or code that may subject the Software (or any part thereof) to any open source or open data licenses (e.g., OSM) or public domain where such licenses or terms would 1. cause the disclosure or distribution of the Software (or any part thereof); 2. result in licensing of the Software (or any part thereof) for making derivative works; 3. cause redistribution of the Software (or any part thereof) at no charge, as a condition for use, modification or distribution of such other content, services or code; or 4. otherwise restrict or impact the licensing or other use of the Software (or any part thereof). 5. Depending on the Software used, the Content and results of the Software may contain content from third parties. The Customer accepts this content and that the Supplier is not obligated or able to monitor, validate or check it. 10 Term and Termination Term These Terms continue to apply until the Subscription is terminated or until the Subscription expires. The Subscription may be automatically renewed depending on the Subscription chosen. Termination by the Customer 1. The Customer may terminate the Subscription at any time by notice to the Supplier so that the Subscription terminates at the end of the current subscription period. Subscription fees are not refundable. 2. The Customer may terminate the Subscription by notice to the Supplier if the Customer does not agree to changes in these Terms or the Software that the Supplier may make in accordance with these Terms or if the Customer does not agree to the billing and fee changes that the Supplier may make in accordance with these Terms. 3. Together with the termination notice to the Supplier the Customer must request the Supplier to stop any automatic renewal of its Subscription. 4. The termination notice requires the text form to be effective. Compliance with this form is a prerequisite for the effectiveness of the termination. Termination by the Supplier 1. The Supplier will be entitled to terminate or (temporarily) suspend access to the Software if Customer is in violation with these Terms. If the violation of the Terms is a minor breach (to the sole discretion of Supplier) it will be awarded a fourteen (14) days term to remedy such violation. If, in a sole opinion of Supplier, the breach is deemed as a major breach then the termination or access suspension will be immediate, and Supplier will then notify Customer of such actions and grounds immediately. 2. If any usage limits applicable to the Subscription are exceeded the Supplier may suspend Customer’s access to the Software or terminate the Subscription or both, to Supplier’s discretion. 3. The Supplier may terminate the Subscription for convenience at any time without liability to the Customer. If the Customer have opted for a paid Subscription, the Supplier will return monies the Customer has paid up-front for any unused part of the Subscription only if the Supplier terminates the subscription for convenience. Effects of Termination 1. Immediately upon expiry or termination of the Subscription, the license to the Software automatically terminates and the Customer must cease all use and distribution of the application that uses or includes the Software or parts thereof and the Customer must no longer make use of the Software; the Customer will no longer have access to the Software. The Customer must uninstall and destroy all related software, backup copies, and all other related materials received from the Supplier whether directly or through an authorized distributor within 30 days from expiry or termination. 2. Fees paid for a Subscription are not refundable and the Supplier has no obligation to return any fees due to termination of the Subscription for any reason unless otherwise explicitly stated in these Terms or provided by applicable mandatory law. 3. The Supplier has no obligation to return the Customer's Content, but the Supplier will delete the Customer's Content after the termination of the Subscription. 11 Fees and Payment Terms 1. The payment period and the amount of the remuneration shall be the same as the method of payment according to the respective Subscription of the Customer according to the order or the order confirmation. 2. The Customer agrees that the Supplier shall charge the applicable fees (including any additional charges) according to the payment period and the method of payment, including the applicable taxes and other charges arising from the use of the Software in accordance with the Subscription conditions. 3. The Supplier can change the billing cycle and charges. The Supplier shall notify such changes in advance to the Customer. Such changes will be effective only if the Subscription is renewed. If the Customer does not agree to the changes, the Customer may terminate the subscription as a single and exclusive remedy by terminating the use of the Software and accessing the Software and notifying the Supplier in writing and requesting to terminate an automatic renewal of the Subscription. Subscription fees and other costs will not be refunded, unless this is mandatory by applicable law or expressly in these Terms. 4. If the Customer delays the payment of a due remuneration by more than four weeks, the Supplier is entitled after prior warning with setting deadline and expiration of the deadline for the blocking of the access to the Software. The right of remuneration of the Supplier remains unaffected by the blocking. Access to the Software is immediately released after the residues have been cleared. 5. Upon the expiry of the initial subscription period, the Supplier may adjust the prices as well as the rates for an agreed remuneration according to the general price development. If the raise for an existing Subscription of a Customer exceeds 5%, the Customer can terminate the contractual relationship with a notice period of three months. 6. The remuneration for other services depends on the respective valid price list of the Supplier. 12 Service Levels 1. The Supplier advises the Customer that restrictions or impairments of the Software may arise outside the sphere of influence of the Supplier. This includes acts by third parties which are not acting on behalf of the Supplier, technical conditions of the Internet that cannot be influenced by the Supplier as well as force majeure. The hard- and software and technical infrastructure used by the Customer can also have an influence on the services of the Supplier. Insofar as such circumstances have an influence on the availability or functionality of the service provided by the Supplier, this has no effect on the contractual nature of the services rendered. 2. The monthly availability of the Software for use by the Customer shall be calculated as the maximum availability time in minutes minus downtime in minutes divided by the maximum availability time in a billing month. The monthly availability in percent is represented by the formula: Monthly availability (%) = Maximum availability time (minutes) - Downtime (minutes) / Maximum availability time (minutes) 3. The Supplier shall take appropriate technical and organizational measures to provide a monthly availability of the Software of %3E= 99.5%. For a lower availability, the following maximum reimbursement rules apply to the billing month: 1. Monthly availability(%)%3C99.5% = 10% Credit 2. Monthly availability(%)%3C98.5% = 25% Credit 4. The Supplier will monitor the performance of its obligations under the service levels using automated tools or utilities developed or configured by the Supplier or contracted with external third-parties to validate Availability. 5. The Customer may conclude a separate support agreement with the Supplier or with an authorized support service partner to receive support in case of support incidents for the use of the Software. 6. A support case in the sense of the availability of the Software within the framework of these Terms is defined as the use of the Software by the Customer is limited or not possible by the availability of the Software. To be excluded as support in the sense of these conditions: 1. Hardware and software related problems of the Customer; 2. Connection problems of the Customer to the Internet or to the cloud platform used by the Supplier; 3. Use of the Software by the Customer in an incorrect or inconsistent manner, or inconsistent with the use recommended by the Supplier in the product documentation and the usage guidelines recommended by the Supplier 4. Results from erroneous inputs, instructions or calls 5. Use of the Software contrary to the instructions of the Supplier 6. Other IT organizational areas within the Customer's area of responsibility (application management, database management, etc.) 7. Interfaces or Third-Party Software 7. The Customer is obligated to notify the Non-Availability of the Software for use at the latest one (1) month after the Customer has recognized or recognized it, and if a failure has occurred provide to the Supplier in writing with all necessary information on a support case. If this is not done, the Customer's claim to the Supplier expires by law. 8. In the event of Non-Availability, the Customer is entitled to a credit of 5% for the affected Subscriptions for every half hour (or pro rata) of the unscheduled Non-Availability, up to a maximum of 100% of the affected Subscription for the billing month. Credits are calculated on the percentage basis of the price model based on the Subscription in the billing month, in which the Non-Availability occurred for the first time. If this case of Non-availability would entitle a Customer to a credit according to this article, and the latter is also entitled to credit or this case by another provision, the Customer shall not be credited to this credit article. 9. To receive a credit note, the Customer must report the support case in the sense of the availability of the Software by telephone or email, stating all necessary information on a support case, in any case within thirty (30) days after the end of the Non-Availability. Within the framework of the contract and the Subscription, the Supplier provides the Customer with information on how to contact the service provider of the Supplier. 10. The Supplier may change and suspend its obligations under the Service Levels if Customer exceeds any usage limits (such as transaction limits or requests per second) specified in these Terms or the underlying Subscription. 11. To determine the claim for a credit note, the Supplier shall measure the period between the time of receipt of the notification of the Support Claim and the time of the end of the Non-Availability. Any claim for a credit in connection with a breach of this Agreement shall be the sole remedy for such breach. 12. Notwithstanding these special terms of business, the maximum amount of a total credit for each clearing month shall be set to the total remuneration of a maximum of 100% of the respective Subscription for the clearing month. 13. As a result, credits due are deducted from the remuneration of the following month. Credit notes are not refundable or redeemable in cash or otherwise. 13 Intellectual Property Rights No Transfer of Ownership No ownership of any intellectual property rights relating to the Software or any other information or material provided by the Supplier is assigned or transferred to the Customer. All such intellectual property rights are protected by provisions of international treaties and applicable laws. The structure, organization and code of the Software are the valuable trade secrets and confidential information of the Supplier, its licensors and affiliates. No Implied Grants Except as explicitly granted by the Supplier in these Terms, no other rights, licenses, releases, covenants not to sue or other rights or immunities, express or implied, by estoppels or otherwise are granted by the Supplier to the Customer. Notwithstanding anything to the contrary in these Terms, no rights or licenses, whether express or implied, are granted by the Supplier to the Customer to any technologies that may be necessary for the use of the Software (e.g., operating systems, communication protocols or cellular technologies) but that are not included in the Software provided by the Supplier. 14 Error Reporting and Feedback 1. The Customer may provide the Supplier either directly or via third-party sites and tools with information and feedback concerning errors, suggestions for improvements, ideas, problems, complaints, and other matters related to the Software (together "Feedback"). 2. The Customer acknowledges and agrees that: 1. to not retain, acquire or assert any intellectual property right or other right, title or interest in or to the Feedback; 2. the Supplier may have development ideas like the Feedback; 3. Feedback does not contain confidential information or proprietary information from the Customer or any third-party; and 4. the Customer is not under any obligation of confidentiality with respect to the Feedback. In the event the transfer of the ownership to the Feedback is not possible due to applicable mandatory laws, the Customer grants the Supplier and the Supplier's affiliates an exclusive, transferable, irrevocable, free-of-charge, sub-licensable, unlimited and perpetual right to use (including copy, modify, create derivative works, publish, distribute and commercialize) Feedback in any manner and for any purpose. 15 Representations and Warranties The Customer and the Supplier represents and warrants to the other that: they have all requisite power and authority to execute these Terms and to perform its obligations hereunder; The execution and delivery of these Terms will not conflict with or violate any other agreement to which it is a party; and It is not a party identified on any governmental export exclusion or denied party lists. The Customer represents and warrants: to comply with all applicable laws, these Terms, any documentation, technical guidelines and other requirements as the Supplier may provide from time to time with respect to the Customer's use of any of the Software, Results and Content; to implement and comply with appropriate data privacy and security measures in connection with the Customer's collection, processing, transfer and use of personal data, if any, and that the Customer has all necessary consents required for processing of such personal data in accordance with these Terms; to not violate, misappropriate, or infringe any intellectual property rights, rights of privacy, or rights of personality or any other right of any third-party or of the Supplier; The Application and the Customer's Content do not contain or distribute any viruses, spam, files, code malware or any other malicious software programs, technology or content that may harm or disrupt the operation of the Software; and to exercise all legally required care and diligence in connection with the design, manufacture, workmanship, testing, distribution and operation of the Application. EXCLUSION OF WARRANTIES EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS, THE SOFTWARE, RESULTS AND THE CONTENT ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS. THE CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT THE USE OF THE SOFTWARE, RESULTS AND THE CONTENT IS AT THE CUSTOMER'S SOLE RISK. THE SUPPLIER, ITS AFFILIATES, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT THE SOFTWARE, RESULTS OR THE CONTENT WILL BE UNINTERRUPTED, SECURE, OR ERROR FREE, OR THAT DEFECTS IN THE SOFTWARE, RESULTS OR THE CONTENT WILL BE CORRECTED. THE SUPPLIER, ITS AFFILIATES, SUPPLIERS AND THEIR LICENSORS SPECIFICALLY DISCLAIM, TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING THE SOFTWARE, RESULTS AND THE CONTENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE OR ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. 16 Indemnity The Customer agrees to defend, indemnify and hold harmless the Supplier and its affiliates, contractors, suppliers and licensors from and against all third-party claims and all liabilities, assessments, losses, costs and damages resulting from or arising out of (i) the Customer's breach of these Terms, (ii) any use of the Software, the Content or any information or Results derived therefrom by the Customer or any third-party; and (iii) the Customer's infringement or violation of any intellectual property rights or other rights of a third-party. The Customer hereby agrees to fully cooperate as reasonably requested in the defense of any claim. The Supplier reserves the right to alone assume the defense and control of any claim that is subject to your above indemnification. 17 Limitation of Liability TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL THE SUPPLIER, ITS AFFILIATES, THEIR EMPLOYEES, DIRECTORS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY LOST PROFITS, REVENUE, SALES, DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SOFTWARE OR SERVICES, PROPERTY DAMAGE, PERSONAL INJURY, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS INFORMATION, OR FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, ECONOMIC, COVER, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL LOSSES OR DAMAGES, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, OR OTHER THEORY OF LIABILITY ARISING OUT OF OR RELATED TO (i) THESE TERMS; OR (ii) THE USE OF OR INABILITY TO USE THE SOFTWARE, THE RESULTS OR THE CONTENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIABILITY, BUT MAY ALLOW LIABILITY TO BE LIMITED, IN SUCH CASES THE LIABILITY OF THE SUPPLIER, ITS AFFILIATES, THEIR EMPLOYEES, DIRECTORS SUPPLIERS AND LICENSORS SHALL BE LIMITED TO THE SUSCRIPTION FEE OF ONE MONTH. 18 Confidentiality 1. Confidential information includes all materials and information concerning the business of one of the parties (either the Customer or the Supplier ) received by the other party, including product and pricing offers, products, designs, business plans, business opportunities, finances, research, development, know-how, personnel, third-party confidential information and trade secrets. Confidential information does not include: 1. information that the party who owns the information makes generally available to the public; 2. information that either party can demonstrate had rightfully in possession prior to disclosure by the other party; 3. information that is independently developed by one party without the use of any confidential information of the other party; or 4. information that one party rightfully obtains from a third-party who has been given the right by the other party to disclose it without confidentiality obligation. 2. Each party receiving confidential information from the other party may disclose such confidential information to the receiving party's affiliates and its and their contractors, provided that those in receipt of such confidential information have a need to know such confidential information and are bound by confidentiality obligations at least as restrictive as those herein. 3. The Customer and the Supplier both shall keep confidential and not to disclose, publish, or disseminate any confidential information of the other party to any other third-party without prior written consent. 4. The Customer and the Supplier both shall take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of confidential information of the other party. 19 Governing Law and Dispute Resolution 1. This agreement shall be construed and governed by the substantive laws of Germany 2. The United Nations Convention of Contracts for the International Sale of Goods shall not apply to this agreement. 3. If there is a dispute between the Customer and the Supplier as to matters arising out of or related to this agreement, or the validity, enforceability or interpretation of these Terms, then the Customer and the Supplier irrevocably submit to the exclusive jurisdiction of the courts in Hamburg.