END USER LICENSE AGREEMENT

You acknowledge that the proprietary rights in the Information are owned by Luminex (or its licensors), and from this point of view, you may not modify, copy, sublicense, lease, sell, publish, transmit, adapt, enhance, (re)distribute, perform, reverse engineer, assign, disassemble, decompile, participate in the transfer or sale, create derivative works of, or in any way exploit, any of the Information, in whole or in part. When Information is downloaded to your device, you do not obtain any ownership interest in such Information. Modification of the Information or use of the Information for any other purpose, including, but not limited to, use of any Information in printed form or on any website, app or networked computer environment is strictly prohibited, unless you receive our prior written consent. You also need our prior written consent to make a hyperlink to our website and/or to the Licensed Product.

You will not perform any action with the intention of damaging the Licensed Product through viruses, ‘worms’, defects, ‘Trojans’, ‘malware’, ‘spyware’ or items of a destructive nature.

You will not use the Licensed Product in a manner that could harm a person or otherwise harm, defame, abuse, harass or threaten a person or encourage third parties to do so.

You will not use the Licensed Product in a manner or for any purpose that is contrary to a law or other regulation (including, but not limited to Anti Money Laundering laws and regulations), or for a transfer of data that is or may be illegal, fraudulent, defamatory, intimidating, invasive or harmful to the privacy of third parties, or contains viruses, or violates or may violate the intellectual property rights or other rights of Luminex, its licensors or other individuals or entities.

You will not attempt to gain access to reserved or protected parts of the Licensed Product, to which you have not obtained explicit access.
End User will indemnify, defend and hold harmless Luminex from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) any breach by End User of this Agreement, (b) any End User data, (c) any End User modifications of or combinations with a Licensed Product, (d) any service or product offered by End User in connection with or related to a Licensed Product or (e) any representations or warranties made by End User regarding a Licensed Product to third parties. This indemnification obligation is subject to End User receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for End User to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defence or settlement of such claim, provided that Luminex may participate in the claim at its own expense and End User may not settle any claim without Luminex’ prior written consent; and (iii) all reasonable necessary cooperation of Luminex at End User’s expense.

Please note the following important limitations of liability and warranties:

The End User represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if End User is an entity, this Agreement and each order is entered into by an employee or agent of the End User with all necessary authority to bind the End User to the terms and conditions of this Agreement.

Licensed Products will perform in all material respect in accordance with the functionalities specified in official, certified and valid documentation of Luminex pertaining to the Licensed Products insofar as available on Luminex’ website on the date of purchase of the Licensed Products, or as otherwise may be communicated by Luminex to the End User. Luminex cannot be held liable for any information included in documentation and/or translations of documentation that is not officially certified by Luminex.

Luminex’ Warranty Document is applicable to and forms an integral part of this Agreement. The Warranty Document shall be the only recourse in regard to warranty conditions. With every order, both this Agreement and the Warranty Document are brought to the attention of the End User, who declares being sufficiently aware of and in agreement with this Agreement and the Warranty Document.

As far as Luminex is aware, its Licensed Products do not infringe on the intellectual property rights of any third party. If a third party alleges that the Licensed Products infringe its rights or if a third party starts legal proceedings against the End User or Luminex due to alleged infringement of its rights, Luminex has the right to decide at its discretion to (i) refute these assertions or claims, (ii) adapt the Licensed Products so that they no longer infringe the rights of this third party or (iii) take back the Licensed Products from the End User subject to a refund of the price paid for it by the End User within thirty (30) days after effectively taking back the Licensed Products from the End User. If none of the above is reasonably possible, Luminex will be liable to the End User in accordance with this article 3 of this Agreement.

In case Luminex delivers Licensed Products to the End User which have been produced by another supplier, Luminex does not provide any other warranties to the End User than the warranties given by that supplier.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT IN CASE OF MALICE, GROSS NEGLIGENCE OR NON-EXECUTION OF THE ESSENTIAL OBLIGATIONS OF THIS AGREEMENT, AND EXCEPT AS EXPRESSLY SET FORTH HEREIN AND IN LUMINEX’ WARRANTY DOCUMENT, LUMINEX AND ITS THIRD PARTY SUPPLIERS/LICENSORS PROVIDED THE LICENSED PRODUCTS AS IS AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES AND GUARANTEES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR ANY PURPOSE. WITHOUT LIMITING THE FOREGOING, LUMINEX AND ITS THIRD PARTY SUPPLIERS/LICENSORS MAKE NO REPRESENTATION, WARRANTY AND GUARANTEE AS TO (i) THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR GENERATED THEREWITH, (ii) THAT (a) THE USE OF ANY PRODUCTS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (b) THE PRODUCTS WILL MEET END USER’S REQUIREMENTS OR EXPECTATIONS, (c) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED, (d) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY END USER THROUGH THE LICENSED PRODUCTS WILL MEET END USER’S REQUIREMENTS OR EXPECTATIONS, (e) ERRORS OR DEFECTS WILL BE CORRECTED, OR (f) THE LICENSED PRODUCTS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WITHOUT LIMITING THE FOREGOING, LUMINEX AND ITS THIRD PARTY SUPPLIERS/LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO, AND ASSUME NO LIABILITY FOR, ANY PRODUCTS PROVIDED ON AN EVALUTATION BASIS. IN ADDITION, LUMINEX AND ITS THIRD PARTY SUPPLIERS/LICENSORS SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF LUMINEX. END USER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMISSIBLE BY THE LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD.

To the extent that this Agreement contains warranties or representations in excess of the warranties or representations provided by Luminex to the distributor, reseller or dealer under this Agreement in terms of scope, duration or otherwise, unless otherwise explicitly agreed by Luminex in writing, the distributor, reseller and dealer shall have no claim against Luminex in the event of a breach of such excess warranties or representations. The Agreement shall contain customary third party intellectual property rights provisions pursuant to which the distributor may elect to modify or replace the Licensed Product as a result of a third party intellectual property rights infringement issue relating to the Licensed Product. To the extent that this Agreement contains warranty breach remedies in excess of the warranty breach
remedies to be provided by Luminex to the distributor, reseller or dealer, they shall have no claim against Luminex for failure to provide such excess warranty breach remedies.

In no case shall Luminex be liable for any damage caused by incorrect installation, configuration, use and/or maintenance of the Licensed Products by the End User or a third party.

In no event will Luminex be liable for any consequential or indirect damages, such as loss of data, loss of expected profit, reduced sales, increased operating expenses, loss of clients or damage to equipment, data or reputation that the End User, its customers, users or third parties might suffer due to any error or negligence on the part of Luminex or an appointee.

The total liability of Luminex shall never exceed 5000,00 EUR, except in case of under or in connection with the Agreement for personal injury or death, or fraud or wilful misconduct.

If the End User turns to other suppliers, Luminex does not accept any liability above or besides the liability accepted by those suppliers for their goods or services.

You understand, agree and accept that Luminex has no obligation to maintain, support, upgrade or update the Licensed Product, or to deliver any or any specific Information pertaining to the Licensed Product. Luminex and / or the owners of any Information may remove such Information from time to time without prior notice, to the extent permitted by applicable law. This component will be enforced to the extent permitted by applicable law.

You shall comply with all laws and regulations applicable to your use of the Licensed Product and any related materials, including without limitation, the General Data Protection Regulation. You shall not use the Licensed Product or any related materials to determine or attempt to determine the identity of individual users who go to a specific website unless, solely to the extent permissible under applicable laws and regulations, for tracking such individual to identify access restricted sites or access to websites for illegal purposes.
You shall not use the Licensed Product or any related materials in a manner that violates the privacy rights of an individual.

You agree to take all appropriate measures to protect your own data and/or software from contamination by possible viruses on the Internet network. You should avoid using computers and mobile phones that are accessible to the public, taking into account the risks inherent in this type of access and, in particular, the possibility of compromising the security of your credentials.

You are solely responsible for the use and implementation of appropriate means of security, protection and safeguard of your equipment and data. We strongly recommended that you:

use cryptographic means to protect your data against unauthorized access;
periodically back up your data;

regularly update your software and at all times maintain an up-to-date anti-virus.

Confidential Information shall mean any and all commercial, technical, financial and other information of whatever nature and in whatever form recorded (including, without limitation, know-how, pricing, business procedures) however disclosed by the disclosing party to the receiving party which include but are not limited to know-how, business and other plans, ideas, inventions, formulae, models, trade and manufacturing secrets, proprietary computer programs, algorithms, techniques, drawings, prototypes, formulae or test data as well as any and all intellectual property rights contained. The receiving party can only use this information for the purpose for which it was provided.

The obligations of confidentiality stipulated in this article 5 do not apply to Confidential Information that:

• is publicly known other than by a breach by the receiving party of its obligations under the Agreement;
• was communicated by a third party to the receiving party as non-confidential, by which it deems to be not unlawful to disclose the information;
• was developed independently by the receiving party, or that the receiving party was already aware of this information before the information was communicated to it;
• was disclosed with the written consent of the disclosing party.

If the receiving party must communicate Confidential Information on the orders of a competent court and/or administrative or government agency or on the basis of a law, regulation or any other administrative or legal proceedings, it will inform and consult with the disclosing party about this in advance.

Notwithstanding the provisions of this article, the receiving party may communicate the Confidential Information of the disclosing party to its employees, consultants and suppliers who are directly involved with and/or must be informed of such Confidential Information for implementation of the Agreement, provided that each party warrants and undertakes to ensure compliance with this article, in particular by imposing similar written confidentiality obligations on them as the obligations contained in this article.

If the receiving party no longer needs the Confidential Information for fulfilment of its obligations under this Agreement or if this Agreement is terminated, the receiving party undertakes to return or destroy the Confidential Information (along with each copy and summary thereof) to the disclosing party, at the discretion of the disclosing party.

The End User will use its best efforts to protect the Software Source Code from unauthorized access, reproduction, disclosure or use. The End User will notify Luminex immediately if the End User becomes aware of any unauthorized use or disclosure of the Software Source Code, and will give full cooperation, at its own expense, to minimize the effects of such unauthorized use or disclosure. END USER’S LICENSE WILL AUTOMATICALLY TERMINATE UPON THE UNAUTHORIZED TRANSFER OF ANY COPY OF THE SOFTWARE AND/OR SOFTWARE SOURCE CODE TO ANOTHER PARTY.

This Agreement, as it may apply from time to time as updated by Luminex and agreed to by the End User, is entered into for an indefinite term and will continue to apply until terminated by Luminex. The (updated version of) Agreement will continue to apply to your use of the Licensed Products for the entire duration of your use thereof.

Luminex may at any time terminate or suspend (at Luminex’ option) this Agreement with immediate effect by giving written notice to End User, if the End User commits a breach of any material term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 (thirty) days after being notified in writing to do so. Upon termination of this Agreement for any reason, End User agrees to: (i) immediately stop using the Licensed Product, return or destroy the Licensed Product at Luminex’ discretion, including all copies in any form, and furnish Luminex with a return or destruction certificate signed by an officer of End User. Articles 3 (Limitation of Liability and Warranties), 5 (Confidential Information) and 6 (Duration and Termination) of this Agreement shall survive termination of this Agreement.

Luminex is entitled to wholly or partially suspend its contractual performance without judicial intervention if the End User compromises, or threatens to compromise, Luminex’ rights and/or the services provided to Luminex’ customers.

Situations out of Luminex’ control, such as fire, flood, strikes, administrative measures, non-delivery of components by external suppliers and other unforeseen circumstances, will release Luminex of its obligations under this Agreement for the duration of the situation of force majeure. In such event, the End User is not entitled to any indemnification by Luminex.

The validity, interpretation, and implementation of this Agreement between Luminex and the End User shall be governed by Belgian law.

All disputes with respect to the Agreement shall be submitted to the competent Court in Hasselt, Belgium.

Before instituting a procedure before the Court, Luminex and the End User will, however, attempt to negotiate in good faith in order to reach an out-of-court settlement.

All disputes with End Users residing outside the EU in connection with this Agreement, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (ICC) by one arbitrator appointed in accordance with the said Rules. Luminex and the End User agree that the arbitration shall be held in Düsseldorf and the language of the arbitration will be English.

Should any provision of this Agreement, or the implementation thereof, be void or unenforceable, the other provisions will not be affected by this and remain in full force and effect. In this case, Luminex and the End User will, within the limits of the applicable law, draft a new stipulation that meets the objectives intended by the void or unenforceable stipulation, and include this in an annex to this Agreement.

The entire agreement between you and Luminex (hereinafter, “Entire Agreement”) shall be comprised of:

• this Agreement;
• Luminex’ General Terms and Conditions or the general terms and
• conditions of the distributor, whichever may apply;
• the specific conditions provided in the order form;
• the specific terms provided in Luminex’ Warranty Document or the
• warranty conditions provided by the distributor, whichever may apply.

The Agreement and any updated version thereof as may be communicated from time to time by Luminex to the End User and as accepted by the End User, replaces and annuls any prior written or oral understanding, agreement, offer, correspondence or proposal made between the End User and Luminex. In case a provision of this Agreement contradicts a provision of the Luminex General Terms and Conditions (or the general conditions of the distributor) or the Warranty Document (or the warranty conditions of the distributor), this Agreement shall prevail. In case a provision of this Agreement contradicts the specific conditions provided in the order form, the specific conditions shall prevail.

Luminex reserves the right to call upon the services of subcontractors to execute the Agreement.

No renunciation or waiver of rights can be understood by the mere fact that a right is not enforced or not used, the fact that a penalty or procedure is not applied, or the failure to bring a claim by Luminex.

All notices and requests in connection with this Agreement will be given or made upon the respective parties in writing.