Terms And Conditions 6 March 2019

Terms of Use for Trial Version of Clay Paky’s “Connectivity Box” Service

between Clay Paky, … (“CLAY PAKY”) and … (“PARTNER”) (individually a “Party” or collectively “Parties”)

CLAY PAKY offers …, a software as a service application for Maintenance. as a trial version for a pilot project with PARTNER. PARTNER’s use of Software shall be governed exclusively by the terms or Use agreed to between the Parties in the following (“Terms of Use”).

PARTNER's terms and conditions shall not apply, even if CLAY PAKY does not separately object to their validity. Deviating or contradictory terms and conditions shall therefore only apply if they have been accepted by CLAY PAKY in writing.

1. Provision of Services
   1. CLAY PAKY offers a trial version of an application by way of software as a service providing the functionalities set out in Annex 1 (“Trial-Services”) to PARTNER. Access to and use of the Trial-Services are governed by these Terms of Use and its Annexes.
   2. PARTNER may use the Trial-Services, on a non-exclusive basis, solely in strict compliance with these Terms of Use. The Trial-Services may be unilaterally changed or discontinued by CLAY PAKY at any time and CLAY PAKY may never make Trial-Services available for commercial use.
   3. Unless specifically agreed otherwise, the Trial-Services will be provided to PARTNER free of charge. Each of the Parties will be responsible for their own fees and expenses in relation to Terms of Use, including any expenses of experts, advisors, lawyers or travel expenses.
   4. CLAY PAKY will provide PARTNER with support as indicated in the context of the offered packages.
   5. To provide the Trial-Services, CLAY PAKY may at its sole discretion and at any time involve subcontractors.
   6. PARTNER is aware and hereby accepts, that Trial-Services may not be fully functional, may contain errors, data may be lost, and/or their performance may be limited due to downtime or maintenance. Patches, bug fixes, updates, upgrades and other modifications to maintain or improve the Trial-Services (“Updates”) may be installed from time to time. As far as reasonable, CLAY PAKY will inform PARTNER of such Updates prior to their installation. Updates will be installed automatically without providing any additional notice or requiring any additional consent by PARTNER after PARTNER has received a respective notice. When CLAY PAKY provides or makes Updates available, the provisions of these Terms of Use shall also apply thereto and any Updates shall be part of the Trial-Services.

2. Registration and Access to the Trial-Services

PARTNER can access the Trial-Services via a web-interface https://live.cloudiobox.tech using a company account created and provided by CLAY PAKY. PARTNER must keep the account login and password secure and will be responsible for all activity occurring under PARTNER’s account. PARTNER shall immediately notify CLAY PAKY of any unauthorized use of its account or any other known or suspected breach of security.

3. Changes
   1. As far as commercially reasonable, CLAY PAKY may at any time change these Terms of Use or a Service. CLAY PAKY shall notify PARTNER of changes by e-mail no later than thirty (30) calendar days before the planned effective date of the changes insofar as the modification involves a restriction on the use of the Trial-Services, additional fees or other disadvantages. If PARTNER does not object within thirty (30) calendar days of receipt of the notification and continues to use the Service thereafter, the changes shall be deemed to have been agreed. If PARTNER objects to the changes, the contractual relationship shall continue unchanged and CLAY PAKY shall have the right to terminate these Terms of Use with three (3) weeks prior notice to the end of a billing month. CLAY PAKY’s change notification to PARTNER shall include a notice regarding PARTNER’s right to object and the consequences as set out in this paragraph.
   2. CLAY PAKY may, in particular, modify or terminate a Service or these Terms of Use if a government regulation, obligation or other requirement causes CLAY PAKY to believe that these Terms of Use may conflict with any such requirement or obligation. By way of example, a government requirement that would result in CLAY PAKY being regulated as a telecommunications provider constituted a regulatory requirement that would entitle CLAY PAKY to modify or terminate a Service or these Terms of Use. CLAY PAKY shall notify PARTNER of changes by e-mail no later than thirty (30) calendar days before the planned effective date of the change insofar as the modification involves a restriction on the usability or other disadvantages.
4. PARTNER’s Duties
   1. PARTNER undertakes to reasonably cooperate with CLAY PAKY and to implement updates provided by CLAY PAKY without undue delay.
   2. PARTNER must comply with the current technical documentation applicable to the Trial-Services as referenced in Section a and as updated by CLAY PAKY from time to time.
   3. PARTNER shall not: (i) pass on Trial-Services to third parties; (ii) transmit or distribute any code intended to harm or change a network, computer, mobile device, the Trial-Services, devices or the software embedded in devices; (iii) use the Trial-Services to violate the rights of others or to distribute spam; (iv) interfere with, disrupt, or attempt to gain unauthorized access to the servers and networks connected to the Trial-Services, or violate the policies of those networks; (v) attempt to access the Trial-Services other than through the applicable interface provided by CLAY PAKY; (vi) decompile, reverse engineer, disassemble, or decrypt the Trial-Services or the underlying software except as allowed by applicable law; (vii) make any modification to or derivative work from the Trial-Services or the underlying software; (viii) violate any policies, laws or regulations governing the use of the Trial-Services, including export controls and international trade laws; (ix) remove, disable, circumvent or workaround any copy protection, rights management, security features or proprietary notice in the Trial-Services or the underlying software; or (x) install or use non-CLAY PAKY software or technology in any way that would subject CLAY PAKY IPR or technology to any other license terms.
   4. The Trial-Services are not intended for use in any application or situation where failure of the Trial-Services could lead to the death or serious bodily injury of any person, or to severe physical or environmental damage or in other critical or security-related applications.
   5. PARTNER shall ensure that (i) the Trial-Services are used in accordance with all applicable laws and third party rights as well as with the terms of these Terms of Use; (ii) state of the art security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity are maintained to ensure that the access to the Trial-Services granted under these Terms of Use is limited as set out under these Terms of Use, and, in the event of any unauthorized access or use, promptly notify CLAY PAKY; and (iii) CLAY PAKY is promptly notified in case of any third-party claim alleging infringement of a third-party Intellectual Property Right, of any other law or alleging a violation of other rights of a third party.

5. Rights to Use Trial-Services
   1. Trial-Services and the software used to provide the Trial-Services are protected by Intellectual Property Rights of CLAY PAKY and/or of third parties. CLAY PAKY reserves all rights not expressly granted in these Terms of Use. No rights shall be granted or implied by waiver or estoppel.
   2. Solely in accordance with the terms of these Terms of Use, CLAY PAKY grants PARTNER a non-exclusive, non-transferable, revocable and limited license to CLAY PAKY IPR to access and use the Trial-Services during the term of these Terms of Use.
   3. Limitations
      1. PARTNER shall not pass on Trial-Services to third parties or duplicate Trial-Services. PARTNER is not granted a right to modify, adapt, or translate the Trial-Services or create derivative works from the Trial-Services except as allowed by applicable law.
      2. Nothing in these Terms of Use shall be construed to mean, by inference or otherwise, that the PARTNER has any right to obtain source code for the software comprised within the Trial-Services.

• PARTNER shall not remove notices in the Trial-Services or the underlying software that refer to confidentiality or Intellectual Property Rights.

1. The Trial-Services may be provided involving third party software components. Unless expressly agreed otherwise, these Terms of Use apply to these third-party software components as well.

• Certain components of the Trial-Services and the underlying software are subject to open source license terms. They are identified, together with their respective copyright notices and applicable license text, on the website https://live.cloudiobox.tech/licenses.

6. Non-CLAY PAKY software or technology

PARTNER is solely responsible for any non-CLAY PAKY software or technology that it installs or uses with the Trial-Services. CLAY PAKY is not a party to and shall not be bound by any terms governing the use of any non-CLAY PAKY software or Trial-Services.

7. Notices

All notices to CLAY PAKY shall be sent in electronic form to connectivity@claypaky.it All notices to PARTNER shall be sent in electronic form to the email address provided as part of the Registration Information.

8. Feedback

CLAY PAKY welcomes feedback, suggestions, ideas, proposals or recommendations from PARTNER or its PARTNER(s) regarding the Trial-Services (“Feedback”). PARTNER hereby grants CLAY PAKY an irrevocable, non-exclusive, worldwide, free-of-charge and transferable (sub-)license, including the right to sub-license, to use Feedback in any way, to commercialize and to disclose and will confirm this license grant in writing and provide all assistance necessary for CLAY PAKY to secure its rights upon request.

9. Warranties
   1. CLAY PAKY intends to achieve, but does not warrant, an overall availability of the Trial-Services during working days of 85 %.
   2. Since these are Trial-Services, neither Party shall, except in cases of malice, assume any warranty for the defect-free functioning of the Trial-Services provided or operated under these Terms of Use. The Trial-Services are not generally available and may contain bugs, errors, defect or harmful components. Accordingly, CLAY PAKY is providing the Trial-Services “as is”. CLAY PAKY makes no warranties of any kind with respect to the Trial-Services, whether express, implied, statutory or otherwise including any warranties of quality, title, merchantability, fitness for a particular purpose or non-infringement. CLAY PAKY does not warrant that the Trial-Services will be error-free, that they will meet any specified service level or will operate without interruption or downtime, or that no data may be lost.

1. Each Party has endeavored and will endeavor to provide the other Party with the proper information for the purposes set forth in these terms and conditions. The disclosing Party, however, makes no representations or warranties that the information disclosed to the other Party is (i) complete, exact, accurate, fit or sufficient for any particular purpose or for any use of the results based on the information, or (ii) will not infringe on proprietary rights of third parties.

1. For the avoidance of doubt, both Parties agree that the Pilot Project will be conducted in a way which complies with all the regulations and legal requirements applicable.

10. Liability
    1. The Party’s shall only be liable in the event of intent or gross negligence. Liability for slight negligence shall be excluded. In the event of gross negligence, each Party’s liability shall be limited to typical foreseeable damages. This shall apply to any damages claim irrespective of their legal basis.
    2. Notwithstanding the foregoing, both Parties shall be fully liable for claims for damages (i) to life, body or health, (ii) in the case of fraudulently suppressed defects (arglistiges Verschweigen), (iii) in the event of the assumption of a guarantee and (iv) for violations of the Product Liability Act.
    3. In any case, CLAY PAKY shall not be liable for a loss of PARTNER Data to the extent that the damage is due to the fact that the PARTNER has failed to carry out data backups and thereby ensure that lost data can be restored with reasonable effort.
    4. Any Damages Claim resulting from defects will expire within one year. Any other Damages Claim against CLAY PAKY will expire within two years from the date the cause of action arises.
    5. The Trial-Services are protected by passwords and other security measures. The PARTNER is responsible for setting security guidelines to prevent unauthorized access to PARTNER Data and devices. In particular, CLAY PAKY cannot be held responsible for data breaches or machine misuse resulting from the use of unsafe passwords or lack of security implementation on the PARTNER or PARTNER side or on the equipment and devices used by the PARTNER or PARTNER.
11. Indemnification by CLAY PAKY
    1. If a third party raises a finally adjudicated claim against PARTNER for infringement of third party Intellectual Property Rights (“Third Party IPR”) by the Trial-Services, CLAY PAKY shall at its cost acquire for PARTNER a right to use the Trial-Services. In case this is not possible at economically reasonable conditions, CLAY PAKY’s liability shall be limited as follows:

1. CLAY PAKY shall indemnify and hold harmless PARTNER against reasonable legal costs and damages of PARTNER caused by Third Party IPR infringement by the Trial-Services as such up to the amount of an appropriate license fee, which the owner of the Third Party IPR could claim directly from CLAY PAKY for the Trial-Services.
2. For the future, CLAY PAKY shall, if economically reasonable, at its option develop a non-infringing service, which substantially complies with the specifications of the infringing Trial-Service, modify the Trial-Service to become non-infringing or deliver an equivalent non-infringing service.

1. The obligations of CLAY PAKY mentioned in this Section above apply under the precondition that PARTNER informs CLAY PAKY without undue delay in writing of any claims for infringement of Third Party IPR, does not accept on his own any such claims and conducts any disputes, including settlements out of court, only in agreement with CLAY PAKY.

1. CLAY PAKY shall not be obliged pursuant to this Section to the extent that the claim or judgment is based on
   1. any combination of Trial-Services with other products or Services if the infringement resulted from the combination;
   2. any specifications or materials PARTNER provides or makes available;

• the unauthorized modification or use of the Trial-Services;

1. the failure to prevent or mitigate losses, damages, costs and expenses;
2. any data or non-CLAY PAKY software originating from PARTNER;
3. PARTNER’s use of a Service after CLAY PAKY notifies PARTNER to discontinue that use due to a third-party claim.

PARTNER will reimburse CLAY PAKY for any costs or damages resulting from any of the above actions.

1. This Section 11 constitutes the exclusive remedy for such a claim.

12. Indemnification by PARTNER
    4. PARTNER will defend CLAY PAKY against any claims made by an unaffiliated third party that (i) any data or any PARTNER or PARTNER software infringes its IPR; or (ii) arises from a violation of Sections c, 4.d and 4.e.
    5. PARTNER will indemnify and hold harmless CLAY PAKY against reasonable legal costs and damages of CLAY PAKY caused by Third Party IPR infringement by data or PARTNER or PARTNER software. PARTNER will also indemnify and hold harmless CLAY PAKY for the amount of any resulting adverse final judgment (or settlement PARTNER consents to).
    6. Subject to Section 14, this Section 12 constitutes the exclusive remedy for such a claim.
13. Public Statements and Trademarks
    1. Any publication or press release shall require the other Party’s prior written consent.
    2. CLAY PAKY does not grant any rights to use CLAY PAKY’s trademarks or similar rights without CLAY PAKY’s prior written consent.
14. Term, Termination and Suspension
    1. These Terms of Use shall be effective as of the first login to the Trial-Services (hereinafter "Effective Date"). At the latest, these Terms of Use shall automatically terminate two (2) months from its Effective Date (“Term”).
    2. These Terms of Use may be terminated by CLAY PAKY upon three (3) weeks prior notice.
    3. The right of each Party to terminate these Terms of Use for good cause (aus wichtigem Grund) shall remain unaffected.
    4. In the event of any material breach of these Terms of Use, the non-breaching Party shall give written notice of default to the breaching Party. The notice shall summarize the default and the corrective action, which must be undertaken to cure the default. In the event the default is not corrected within thirty (30) days from the date of notice, the non-breaching Party may terminate these Terms of Use without liability with effect on the end of a billing month.
    5. If PARTNER violates any of the provisions of Sections 4 or 5 CLAY PAKY shall be entitled to immediately (partially or entirely) suspend PARTNER’s or PARTNER’s access to the Trial-Services as far as reasonably necessary. Other rights under these Terms of Use shall remain unaffected.
    6. Upon the effective date of a termination or expiration of these Terms of Use for any reason:
       1. the rights of use granted by CLAY PAKY under these Terms of Use shall immediately terminate and PARTNER shall immediately cease all use of the Trial-Services;
       2. PARTNER shall promptly return (or destroy, at CLAY PAKY’s instruction) and make no further use of any Confidential Information disclosed by CLAY PAKY;

• CLAY PAKY may destroy or otherwise dispose of any of the PARTNER Data, unless CLAY PAKY receives, no later than ten days after the effective date of the termination of these Terms of Use, a written request for the delivery to PARTNER of the then most recent back-up of the PARTNER Data. CLAY PAKY shall use reasonable commercial endeavors to deliver the back-up to PARTNER within 30 days of CLAY PAKY’s receipt of such a written request. PARTNER shall pay all reasonable expenses incurred by CLAY PAKY in returning or disposing of PARTNER Data; and

1. any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination shall not be affected or prejudiced.

14. All obligations other than those that require performance only during the term of these Terms of Use shall survive the termination or expiration of these Terms of Use, in particular Sections 11 (for one year), 12 (for one year), f, 15, 17 (for one year), and 20.

15. Confidentiality
    1. Each Party agrees that any Confidential Information will be maintained in confidence by the receiving Party and shall be used solely for the purposes of these Terms of Use. Each receiving Party agrees to apply the same degree of care as is used with respect to the receiving Party’s own confidential information to avoid disclosure to any third party, but at least with reasonable care.
    2. Each Party agrees that Confidential Information shall not be distributed or disclosed in any way or form by the receiving Party to anyone except its own and its Affiliates’ employees as well as employees of its consulting firms (including a Party’s subcontractors) who each reasonably need to know such Confidential Information for the performance of the obligations or purposes set forth in these Terms of Use and who are bound, either by their employment agreement or otherwise in writing, to confidentiality provisions not less stringent than the obligations imposed on the receiving Party under these Terms of Use.
    3. The receiving Party’s obligations hereunder shall not apply insofar as the receiving Party can demonstrate that such Confidential Information: (i) is in, or becomes part of, the public domain other than through a breach of these Terms of Use by the receiving Party; (ii) is already known to the receiving Party at or before the time it receives the same from the disclosing Party or is disclosed to the receiving Party by a third party; (iii) is independently developed by the receiving Party without the benefit of information received from the disclosing Party; (iv) is approved for release and/or use by written agreement of the disclosing Party; or (v) is required to be disclosed and/or used by any judicial order or decree or by any governmental law or regulation, provided that written notice of such ruling is given without undue delay to the disclosing Party as to give the disclosing Party an opportunity to intervene and provided further that the receiving Party uses reasonable efforts to obtain assurance that the Confidential Information will be treated confidentially. Confidential Information which is disclosed in such way must be marked “confidential” before disclosure.
    4. The obligations of this Section shall survive the expiration or termination of these Terms of Use, for any reason whatsoever, for five (5) years.

16. Data Protection, PARTNER Data and compliance
    1. CLAY PAKY shall be entitled to use PARTNER’s data, as needed to provide the Trial-Services and for any other purpose, including in particular, (i) analyzing such data to improve CLAY PAKY’s Trial-Services or offer additional Trial-Services (to the extent permitted by applicable data protection laws), (ii) complying with any applicable law, regulation, legal process or government request, (iii) enforcing CLAY PAKY’s agreements and policies, (iv) protecting the security or integrity of CLAY PAKY’s Trial-Services, its IT system and products, or (v) protecting CLAY PAKY, CLAY PAKY’s customers or partners, or the public from harm or illegal activities.
17. Audit Right

PARTNER must keep records relating to all uses and measures implemented to comply with these Terms of Use. CLAY PAKY may, at its sole discretion and at its expense, verify compliance with the terms of these Terms of Use. CLAY PAKY shall provide PARTNER with at least twenty (20) days prior notice if it intends to conduct an audit. Such audit shall be conducted by an independent third-party auditor, chosen by CLAY PAKY, who shall be bound by a standard confidentiality obligation. PARTNER shall provide the independent third-party auditor with any information that the auditor reasonably requests. If the audit reveals any unlicensed use of the Trial-Services, PARTNER shall reimburse CLAY PAKY for the costs CLAY PAKY incurred in the audit process and for further costs or damages CLAY PAKY incurred or incurs as a consequence of any unlicensed use.

18. Force Majeure
    1. In addition to the limitations on liability set out above, neither Party shall be in default or shall be liable for any loss or damage resulting from delays in performance or from failure to perform or to comply with the terms of these Terms of Use due to any causes beyond its reasonable control, which include, but shall not be limited to, acts of God, riots and insurrections, war, embargoes, judicial actions, acts of civil or military authorities (“Force Majeure”). Each Party shall notify the other Party as soon as reasonably practicable upon occurrence of Force Majeure.
    2. This Section will, however, not relieve a Party from its obligation to use reasonable efforts to remove or avoid any disturbance or hindrance by Force Majeure, and the Party so affected will continue performance as soon as reasonably practicable. Notwithstanding the above, if such Force Majeure continues more than six (6) months, either Party is entitled to terminate these Terms of Use, without any prejudice to the rights and obligations already accrued under these Terms of Use.
19. Export Control
    1. For all Trial-Services, including any software CLAY PAKY may provide in connection with those Trial-Services, PARTNER shall comply with all applicable national and international (re-) export control regulations (“Export Regulations”). In any event, Purchaser shall comply with the (re-) export control regulations of Italy, of Germany, of the European Union and of the United States of America.
    2. PARTNER represents that PARTNER, its employees or End Customers are not listed in relevant sanctions lists based on Export Regulations issued, without limitation, by the European Union and its member states, and of the United States of America.
    3. CLAY PAKY shall not be obliged to fulfill this agreement if such fulfillment is prevented by any impediments arising out of national or international foreign trade or customs requirements or any embargoes or other sanctions.
20. Governing Law and Arbitration
    1980. The validity, interpretation and performance of these Terms of Use including any amendments and modifications shall be controlled by and construed in accordance with the substantive law of Germany, without reference to its conflicts of laws provisions. The Parties specifically disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980.

1. All disputes arising out of or in connection with these Terms of Use or its validity shall be finally settled in accordance with the Arbitration Rules of the German Arbitration Institute (DIS) without recourse to the ordinary courts of law. The arbitral tribunal shall be comprised of three members. The seat of the arbitration is Munich, Germany. The procedural law of this place shall apply where the rules are silent. The language to be used in the arbitration proceeding shall be German.

1. Each Party may seek provisional measures from any court of competent jurisdiction, including without limitation provisional injunctive relief, provided that the final resolution of the dispute is through the arbitral tribunal appointed in accordance with this Section.

21. Definitions
    1. “Affiliate(s)” shall mean in case of CLAY PAKY, OSRAM Licht AG and all entities which are controlled by OSRAM Licht AG, whether directly or through one or more intermediaries, and in case of PARTNER all entities which are controlled by PARTNER, whether directly or through one or more intermediaries. For purpose of this definition “controlled” means ownership of securities representing fifty percent (50 %) or more of the voting capital stock or other interest having voting rights with respect to the election of the board of directors or similar governing authority, or any other power by contract or in any other form which entitles such named entity to the respective voting rights;
    2. "Confidential Information" shall mean any information (other than data and PARTNER Data), including but not limited to business, commercial or technical information, and all record bearing media containing or disclosing such information and techniques of the disclosing Party or its Affiliates, which is marked "Confidential" or similarly labelled or which shall be deemed confidential because its nature or the circumstances surrounding its disclosure show that the information ought to be treated confidential. Confidential Information shall include any copies or abstracts made thereof as well as any apparatus, modules, samples, prototypes or parts thereof;
    3. “PARTNER Data” shall mean the data gathered during and produced by the use of the Trial-Services by the PARTNER;
    4. “Intellectual Property Rights” or “IPR” shall mean all patents, utility patents, design patents, marks, trade names, domain names, copyrights, computer software programs, know-how, trade secrets and other (registered or unregistered) intellectual property rights (and any applications therefor);

1. “CLAY PAKY IPR” shall mean all IPR owned by or licensed to CLAY PAKY, which can be made available to PARTNER without consent of or payment to a third party (as long as such right to make available exists); and
2. “Registration Information” shall mean information provided by PARTNER in the registration process.

22. Miscellaneous
    1. If any portion of these Terms of Use is determined to be or becomes unenforceable or illegal, such portion shall be deemed eliminated and the remainder of these Terms of Use shall remain in effect in accordance with its terms as modified by such deletion. The Parties shall replace the deleted provisions with provisions permissible by law, which are as close as possible in content to the original.
    2. Neither these Terms of Use nor any rights and obligations under these Terms of Use may be assigned or delegated by either Party without the prior written consent of the other Party.
    3. These Terms of Use shall not grant any rights to, and is not intended to operate for, the benefit of third parties unless otherwise explicitly provided for herein (kein “Vertrag zu Gunsten Dritter”).

CLAY PAKY