General Terms and Conditions of Sale Germany

MICROVISION CUSTOMER AGREEMENT (GERMANY)

Last revised: April 6, 2023

This MicroVision Customer Agreement (Germany) applies only to customers incorporated in Germany. For customers incorporated in the United States or other countries, the MicroVision Customer Agreement available at www.microvision.com/general-terms-conditions-of-sale/ applies.

This MicroVision Customer Agreement (Germany) (together with the applicable Order Form (defined below), this “Agreement”) is made and entered into between MicroVision, Inc. (or the applicable MicroVision, Inc. affiliate specified on the applicable Order Form) (“MicroVision”) and Customer (defined below). Each of MicroVision and Customer is a “Party” and together, the “Parties.”

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING AN ORDER FORM OR OTHER DOCUMENT THAT REFERENCES THIS AGREEMENT OR USING (OR MAKING ANY PAYMENT FOR) ANY TECHNOLOGY, YOU AGREE TO THIS AGREEMENT ON BEHALF OF THE ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT (“Customer”) AND REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER AND ITS AFFILIATES (DEFINED BELOW) TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE ANY SOFTWARE OR RECEIVE ANY TECHNOLOGY.

1. STRUCTURE This Agreement sets forth the terms and conditions on which MicroVision may make available to Customer certain Hardware (defined below), Software (defined below) or SDKs (defined below) as expressly identified in a quote, order form, statement of work, or other ordering document that (a) is signed by or otherwise expressly agreed to by the Parties and (b) expressly references and incorporates the Standard Terms (defined below) (each, an “Order Form”). Each Order Form is subject to the terms of, and is deemed incorporated into, this Agreement. Any conflict between an Order Form or Sections 1–8 of this Agreement (the “Standard Terms”) will be resolved according to the following order of precedence: (1) the Order Form and (2) the Standard Terms. “Hardware” means the lidar sensors, gateways or other hardware products provided by MicroVision to Customer as specified in an Order Form. “Firmware” means any firmware installed by or on behalf of MicroVision on the Hardware or otherwise embedded in the Hardware, including any Updates (defined below) to the Firmware. “Technology” refers to Hardware, Software, and Firmware, each if and to the extent ordered under the applicable Order Form.
2. USE AND PROVISION OF MICROVISION TECHNOLOGY
   1. Licenses
      1. Software License Types. MicroVision offers different types of licenses for its downloadable software products (“Software”), and each type of Software is subject to a specific license and license restrictions. Software may be licensed under the following structures (or other structures as specified in the applicable Order Form): (i) on a “perpetual” license basis (“Perpetual Licenses”), (ii) as “regular” non-perpetual licenses (“Subscription Licenses”), (iii) “volume” non-perpetual licenses (“Volume-Based Licenses”), and (iv) software development kit (“SDK”) licenses (each, a “Licensed SDK”). As the same Software may not be offered solely under a single license type, MicroVision’s quotations, order confirmations, and invoices typically clearly mention which license type is linked to the respective Software that Customer is acquiring. If that information is not included on the applicable Order Form, please contact MicroVision to confirm the license type. Not all of the features or functionality of certain Software may be available at Customer’s subscription level or license type, irrespective of whether such feature or functionality is described in the Documentation (defined below), and access to such features or functionality may require payment of additional fees or the purchase of additional licenses.
      2. License Grant for Software. If an Order Form indicates that Customer will receive a license to Software, then, subject to Customer’s compliance with this Agreement and the applicable limitations in this Agreement, MicroVision hereby grants to Customer, during the applicable License Term (defined below), a non-exclusive, non-transferable, non-sublicensable right and license under MicroVision’s rights in such Software to install and operate the object code form of such Software in accordance with all applicable Documentation and the restrictions set forth in this Agreement (including the applicable Order Form). This license grant in this Section 2.1.b is the “Software License”. 
      3. License Grant for SDKs. If an Order Form indicates that Customer will receive a license to an SDK, then, subject to Customer’s compliance with this Agreement and the applicable limitations in this Agreement, MicroVision hereby grants to Customer, during the applicable License Term, a non-exclusive, non-transferable, non-sublicensable right and license under MicroVision’s rights in the Licensed SDK to (i) use the object code libraries, application programming interfaces (each, an “API”), and Documentation specified in the Licensed SDK solely to enable applications and (ii) modify any sample code included within the Licensed SDK in accordance with the Documentation included in the Licensed SDK and subject to any restrictions and limitations specified in that Documentation. 
      4. License Grant for Firmware. If an Order Form indicates that Customer will receive Hardware, and if that Hardware includes any Firmware, then, subject to Customer’s compliance with this Agreement and the applicable limitations in this Agreement, MicroVision hereby grants to Customer, during the Term, a non-exclusive, non-transferable, non-sublicensable right and license under MicroVision’s rights in such Firmware to use the Firmware in connection with Customer’s authorized use of the Hardware (which license is transferable as described in Section 2.2.d). 
      5. Documentation. To the extent Software or Firmware is accompanied by any MicroVision-provided user manuals, help files, specification sheets, or other documentation, in whatever form, relating to that Software or Firmware that are generally provided by MicroVision to its customers in connection with the Software (“Documentation”), MicroVision hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right and license under MicroVision’s rights in the Documentation to use such Documentation solely to enable Customer to exercise its rights under the applicable license(s) as set forth in this Agreement.
      6. Term of Licenses. The term of a license (the “License Term”) for Subscription Licenses and Volume-Based Licenses is, unless otherwise specified on the Order Form, equal to the Order Term (defined below). The License Term of a Perpetual License is perpetual and Perpetual Licenses will remain in effect after the Order Term. 
   2. Hardware
      1. Shipment and Title. MicroVision reserves the right in its sole discretion to allocate inventories and current production of Hardware when it determines such allocation is necessary and to ship a Hardware order in installments. Partial shipments may be invoiced as made. Scheduled shipping dates are approximate only and MicroVision may ship up to two weeks in advance of or after the scheduled shipping date. In the absence of specific shipping instructions, MicroVision will ship by the method it deems most advantageous. Transportation charges will be collected from Customer, or if prepaid by MicroVision, will be subsequently invoiced to Customer. All sales of Hardware are EXW MicroVision’s point of shipment (Incoterms 2020). All risk of ownership and, subject to Customer’s payment of all applicable fees, title to Hardware pass to Customer at the time of shipment. MicroVision’s liability for delivery ceases upon the presentation of the Hardware to the carrier at the shipping point in good condition and Customer is thereafter responsible for and bears the entire risk of loss or damage to the Hardware. Customer is responsible for filing any required claims for loss or damages against the carrier. 
      2. Contingencies. MicroVision shall not be responsible for any liability due to a Force Majeure Event (defined below). Fulfillment of the Hardware order shall be deemed suspended so as long as any such Force Majeure Event delays its execution. Whenever such Force Majeure Event has been remedied, Customer shall accept delivery under the Hardware order.
      3. Rescheduling. Customer may reschedule a Hardware shipping date one time, provided that written notice is provided to MicroVision at least 30 calendar days prior to the originally scheduled shipment date and that the rescheduled shipping date falls within the same calendar quarter. Customer may cancel a binding order for standard Hardware (i.e., any hardware supplied by MicroVision that has not been customized, specialized, or is otherwise unique, as such categories are defined by MicroVision) without penalty, on condition that MicroVision receives written notice of such cancellation at least 90 calendar days prior to the originally scheduled shipment date.
      4. Firmware. Customer may transfer its rights in the Firmware installed on any Hardware that has been fully paid for by Customer to a third party (a “Transferee”) solely in connection with transfer of ownership of that Hardware, and subject to execution of an agreement between the Transferee and Customer binding the Transferee to the applicable terms in this Agreement relating to Firmware.
   3. Additional Terms 
      1. Perpetual Licenses. The following terms apply to Perpetual Licenses: 
         1. Licenses for Firmware are typically sold as Perpetual Licenses. Embedded software will typically be installed on a sensor but may also be pre-installed on other hardware. 
         2. Use of Technology subject to a Perpetual License is limited to use by one of the following (each a “Single User License”): (1) a human person that directly logs into Software on a personal computer (“PC”); (2) a nonhuman device (e.g., Electronic Control Units, sensors, etc.) or software system; or (3) third-party application that indirectly uses or accesses Software (including the exchange of data with Software). For avoidance of doubt, each single direct/indirect access to or direct/indirect use of Software requires a separate Single User License. 
         3. Any qualification system or training system may be used by Customer’s authorized representatives for training, testing, sandbox use, or conflict resolution, provided that such training, testing, sandbox use, or conflict resolution is not used for production purposes. The number of Single User Licenses will be set forth in the Order Form.
      2. Subscription Licenses. The following terms apply to Subscription Licenses: (i) Software licensed pursuant to a Subscription License may require periodic validation via the internet by Customer at a URL specified by MicroVision or through other procedures specified by MicroVision; and (ii) licenses for Software that can only be installed on or accessed by one PC at a time and that will be separately used on such PC are typically granted as Subscription Licenses.
      3. Volume-Based Licenses. The following terms apply to Volume-Based Licenses:
         1. Software offered under Volume-Based Licenses can be installed or accessed in a cloud, on a virtual machine, or PC.
         2. MicroVision provides Customer with usage volume of the respective Software to the extent, to which Customer has ordered credits (the “Hours Package”) for specific Software. Credits may only be applied for Software for which they were ordered and are linked to a specific license key provided to Customer. During the usage of Software, a permanent internet connection is necessary for Software to function.
         3. MicroVision grants Customer a non-exclusive, not sub-licensable right to use Software in object code form in a cloud, on a virtual machine or PC (1) in accordance with this Agreement, and (2) for as long as Customer has credits remaining, and at most for the applicable Order Term. The right to use is limited to the single volume licenses (each a “Single Volume License”) set forth in the respective Order Form. A Single Volume License entitles one human person to install and access Software simultaneously in a cloud, on a virtual machine and PC within the purposes and for as long as Customer has credits remaining, and at most for the applicable Order Term. In case of simultaneous use of Software on different instances (in the cloud, on a virtual machine, or on a PC), the required credits are calculated separately for each instance and are accordingly deducted from the applicable Hours Package.
         4. For an Hours Package, one credit equals the processing of one second of a trip file. A trip file is a dataset recorded by Customer. Every time when Customer uses Software to process a trip file, credits accordingly will be deducted from the Hours Package depending on the trip file duration being processed, irrespective of the actual usage time of Software (e.g., a trip file with a duration of one hour of a recorded dataset requires 3,600 credits. If Software is used to process that trip file, 3,600 credits will be deducted from the Hours Package). The actual usage time of Software is irrelevant (i.e., it does not matter whether Software itself needs two or three hours for processing of the trip file). The credits are only deducted depending on the trip file duration. 
         5. The specific license key which is linked to Software will track the number of consumed credits. Credits will only be deducted once for a specific trip if the same license key is used. Therefore, during the applicable Order Term, the specific license key can be re-used for processing of the specific trip file as often as required without new credits being deducted. Customer is responsible for the quality of its trip files that are being processed via Software and credits will be deducted from the Hours Package if a processed trip file was of unsuitable quality for processing by Software.
         6. Customer can check its unused credits via the internet on https://my.microvision.eu/licenses/user (or at such other URL as may be specified by MicroVision from time to time). When all credits are exhausted, the applicable Software may no longer be used. 
         7. If the Hours Package is not fully consumed at the end of the Order Term, no refunds will be offered for unused credits.
   4. Evaluation Software or SDK. If an Order Form indicates that Customer will receive Software for evaluation or proof-of-concept purposes, then Customer may use that Software or SDK only for the purpose of evaluating the functions and performance of that Software or SDK, solely for the designated time period of the evaluation or trial, and subject to any additional usage restrictions specified on the applicable Order Form. Customer acknowledges that evaluation or proof-of-concept versions of Software or SDKs may be automatically disabled upon expiration of the designated trial period (at the end of which Customer’s right to use that Software or SDK under the applicable Order Form also expires), and any data stored in or in connection with that Software may become unavailable at that time. If an “Evaluation License” granted for free with respect to any Software or SDK, the warranty and liability regime shall be subject to the applicable statutory provisions. 
   5. Download Link; License Keys. MicroVision will make an object code version of the applicable Software available to Customer as a download via the internet at a URL specified by MicroVision and will also provide to Customer license keys needed to install and access the applicable Software. No copy of the source code of the Software or other Technology will be provided to Customer pursuant to this Agreement. Customer is responsible for downloading and installing the applicable Software.
   6. Copies. Customer may make a reasonable number of copies of the Software and Documentation for backup or archival purposes. Customer will not copy the Software and Documentation, except as permitted by this Agreement. All copies of the Software and Documentation will be subject to all terms and conditions of this Agreement. Whenever Customer is permitted to copy or reproduce all or any part of the Software and Documentation, Customer will reproduce and not efface any and all titles, trademark symbols, copyright symbols and legends, and other proprietary markings on the Software and Documentation.
   7. Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties (or other persons not authorized by this Agreement) to: (a) rent, lease, or otherwise use Technology or Documentation; (b) use Technology, which is provided on a non-perpetual basis and is not Hardware, to provide services to third parties (e.g., as a service bureau); (c) circumvent or disable any security or other technological features or measures of Technology or use the product in a manner that MicroVision reasonably believes poses a threat to the security of MicroVision-controlled computer systems; (d) modify, translate, reverse engineer, decompile, disassemble, or otherwise derive the source code or the underlying ideas, algorithms, structure, or organization from Software or Firmware (except that if such a prohibition is not permitted pursuant to applicable law, Customer will provide MicroVision written notice prior to undertaking any such reverse engineering, and shall give MicroVision a reasonable amount of time to provide any interface or other information required by law prior to commencing such activities); or (e) use or access any Technology in a manner that materially impacts or burdens MicroVision or MicroVision’s servers and other computer systems, or that interferes with MicroVision’s ability to make available any products or services to any third party.
   8. Third-Party Software. To the extent that Software or an SDK includes or is accompanied by third-party software or other products (e.g., cloud hosting instances or data analysis tools) that MicroVision provides to Customer or that is otherwise identified in the Documentation as being required to properly use such Software (“Third-Party Software”), the Third-Party Software and their use by Customer are subject to all license and other terms that accompany such Third-Party Software provided or made available by MicroVision or the Third-Party Software provider. Customer will abide by and comply with all such terms. Software may include code and components licensed under an open source license. 
   9. Compliance with Laws. Customer will use Technology, except for Perpetual Licenses or Hardware, SDKs, and Documentation in compliance with all applicable laws and regulations.
   10. Protection against Unauthorized Use. Customer will prevent any unauthorized use of Technology, except for Perpetual Licenses or Hardware, and Documentation and will immediately notify MicroVision in writing of any unauthorized use of which Customer becomes aware. Customer will immediately terminate any unauthorized use by persons having access to Technology, except for Perpetual Licenses or Hardware, or Documentation through Customer.
   11. Feedback. If Customer provides any feedback to MicroVision concerning the functionality and performance of Technology or any Documentation (including identifying potential errors and improvements), Customer hereby assigns to MicroVision all right, title, and interest in and to the feedback, and MicroVision is free to use the feedback without payment or restriction.
3. FEES AND PAYMENT
   1. Payment of Fees. In consideration of the grant of the applicable license(s) pursuant to this Agreement, Customer will pay MicroVision the fees and any other amounts owing under this Agreement as specified in the applicable Order Form, including, where applicable, any early termination fees specified on the Order Form. Unless otherwise specified in such Order Form, Customer will pay all amounts due within 30 calendar days of the date of the applicable invoice. Any amount not paid when due will be subject to the highest rate permitted by applicable usury law, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including reasonable attorneys’ fees) incurred by MicroVision to collect any amount that is not paid when due. Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer, with the exception that Customer may offset counterclaims against MicroVision’s claims to the extent that MicroVision’s counter-claim is undisputed or has been legally established. With respect to Software licensed on a basis other than as a Perpetual License, the license fees due for additional subscription terms, volume usage, or other license fee arrangements are due as specified on the Order Form or, where applicable or if not otherwise specified, MicroVision’s then-current price list for the applicable Software.
   2. Additional Licenses. Customer may, subject to MicroVision’s approval, have the option to expand the applicable license(s) to Software granted pursuant to this Agreement to increase the licensed number of users, volume limits, or otherwise change the scope of the license, upon MicroVision’s receipt of additional license fees for that expanded scope as set forth in MicroVision’s then-current price list.
   3. Taxes. Other than net income taxes imposed on MicroVision, Customer will bear all taxes, duties, and other governmental charges (collectively, “Taxes”) resulting from this Agreement. Customer will pay any additional Taxes as are necessary to ensure that the net amounts received by MicroVision after all such Taxes are paid are equal to the amounts to which MicroVision would have been entitled in accordance with this Agreement if such additional Taxes did not exist.
4. MAINTENANCE AND SUPPORT
   1. Maintenance Duties. For so long as Customer is current in the payment of all applicable fees and is otherwise in compliance with this Agreement, MicroVision will provide Maintenance and Support (defined below) for the Software as specified in this Section 4.
   2. Maintenance and Support Services. “Maintenance and Support” means that MicroVision will provide the following to Customer: (a) Updates, if any, and appropriate Documentation, and (b) telephone assistance with respect to the Software, including (i) clarification of functions and features of the Software; (ii) clarification of Documentation pertaining to the Software; (iii) guidance in the operation of the Software; and (iv) error verification, analysis and correction to the extent possible by telephone. “Update” means a release or version of Software or Firmware, as applicable, containing functional enhancements, extensions, error corrections, or fixes that is generally made available free of charge to MicroVision’s customers that have contracted for Maintenance and Support.
   3. Exclusions. “Maintenance and Support” does not include services requested as a result of, or with respect to, the following, and any services requested as a result thereof will be billed to Customer at MicroVision’s then-current rates: (a) accident; unusual physical, electrical or electromagnetic stress; neglect; misuse; failure of electric power, air conditioning or humidity control; failure of rotation media not furnished by MicroVision; operation of the Software with other media not meeting or not maintained in accordance with the manufacturer’s specifications; or causes other than ordinary use; (b) improper installation by Customer or use of the Software that deviates from any operating procedures established by MicroVision in the applicable Documentation; (c) actual or attempted modification or alteration of or addition to Software undertaken by persons other than MicroVision or its authorized representatives; or (d) software or technology of any party other than MicroVision.
   4. Maintenance and Support Term. (a) The following applies only to Software subject to a Perpetual License: MicroVision’s Maintenance and Support obligations will commence on the Effective Date (defined below) and will continue for an initial term of one year. Maintenance and Support will automatically renew at the end of the initial term and any subsequent term for a renewal term of one year at MicroVision’s then-current rates unless Customer has provided MicroVision with a written termination notice of its intention not to renew Maintenance and Support at least 90 calendar days prior to the termination of the then-current term. Termination of Maintenance and Support upon failure to renew will not affect the term of the license of the Software. (b) For Software subject to a Software License other than a Perpetual License, Maintenance and Support coverage is in effect during the applicable License Term.
   5. Responsibilities of Customer. MicroVision’s Maintenance and Support obligations are subject to Customer doing the following: (a) provide supervision, control, and management of the use of the Software; (b) implement procedures for the protection of information and the implementation of backup facilities if there are errors or malfunction of the Software; (c) document and promptly report all errors or malfunctions of the Software to MicroVision; (d) take all steps necessary to carry out procedures for the rectification of errors or malfunctions within a reasonable time after those procedures have been received from MicroVision; (e) maintain a current backup copy of all programs and data; and (f) properly train its personnel in the use and application of the Software and the equipment on which it is used.
5. TERM AND TERMINATION
   1. Term. This Agreement, with respect to the applicable Order Form, will take effect on the date specified in the Order Form (or, if no date is specified, the date of the second of MicroVision’s and Customer’s respective signatures (or other indication of acceptance) on the Order Form) (the “Effective Date”) and will remain in force until terminated in accordance with this Agreement (the “Term”).
   2. Order Term. Unless earlier terminated in accordance with this Agreement or the applicable Order Form, each Order Form will be in effect for the initial term specified in such Order Form (“Initial Order Term”) and, if such Order Form provides for automatic renewal, then, unless either Party provides the other with notice of non-renewal, upon the date of expiration of the then-current term, such Order Form will automatically renew for successive terms (each, a “Renewal Term”) equal in length to the Initial Order Term or such other length of Renewal Term period as stated on the Order Form (the Initial Order Term and each Renewal Term, if any, are collectively, the “Order Term” of such Order Form). Notice of non-renewal of an Order Form must be provided by a Party at least [30] calendar days prior to the end of the Initial Order Term or then-current Renewal Term, as applicable (or such other period as expressly specified on the applicable Order Form). Renewal of any Order Form may be conditioned on and subject to Customer’s agreement to changes to this Agreement. Termination of this Agreement will terminate all Order Forms then in effect, except for Order Forms regarding Perpetual Licenses or Hardware, unless otherwise specified on the applicable Order Form. Customer acknowledges that its access to Software made available pursuant to Subscription Licenses or Volume-Based Licenses (or certain features thereof) may be automatically disabled upon expiration of the applicable Order Term.
   3. Termination for Material Breach. Either Party may terminate this Agreement or one or more Order Forms, except for Perpetual Licenses or Hardware, if the other Party does not cure its material breach of this Agreement or the applicable Order Form(s) within 30 calendar days of receiving written notice of the material breach from the non-breaching Party. Termination in accordance with this Section 5.3 will take effect when the breaching Party receives written notice of termination from the non-breaching Party, which notice must not be delivered until the breaching Party has failed to cure its material breach during the 30-calendar day cure period. Notwithstanding the foregoing, MicroVision may immediately terminate this Agreement upon notice to Customer if MicroVision reasonably believes that Customer has violated this Agreement or has otherwise taken any action that threatens or challenges MicroVision’s intellectual property rights, including rights in and to any Technology. Without limiting any other provision of this Section, if Customer fails to timely pay any fees, MicroVision may, without limitation to any of its other rights or remedies, suspend access to Software or performance of Maintenance and Support under the relevant Order Forms the Customer’s payment default refers to until it receives all amounts due.
   4. Other Termination Rights. This Agreement may be terminated by Customer upon 30 calendar days’ prior written notice to MicroVision for convenience, provided that no such termination will entitle Customer to a refund of any fees (including any license fee or maintenance fee). A Party may terminate this Agreement for convenience immediately upon notice to the other Party at any time that no Order Form is in effect.
   5. Requirements on Termination. No later than 30 calendar days after the date of termination of this Agreement for any reason whatsoever, Customer will delete all copies of the Software, except for Perpetual Licenses, in its possession or control, all Documentation relating thereto, and any other information or property of MicroVision in its possession that is in tangible form, except for Hardware. If so requested by MicroVision, Customer will furnish MicroVision with a certificate signed by an executive officer of Customer verifying that the same has been done.
   6. Post-Termination Obligations. If this Agreement is terminated for any reason, (a) Customer will pay to MicroVision any fees or other amounts that have accrued prior to the effective date of the termination, (b) any and all liabilities accrued prior to the effective date of the termination will survive, and (c) Customer will provide MicroVision with a written certification signed by an authorized Customer representative certifying that all use of Software and Documentation by Customer has been discontinued and that all Software and confidential information in Customer’s possession or control has been returned or destroyed.
   7. Termination for important reason. Each Party may terminate this Agreement or an Order Form with immediate effect for important reasons. 
   8. Survival. Notwithstanding anything to the contrary herein, Sections 1, 2.7, 2.9, 2.10, 2.11, 3.1, 3.3, 5.5, 5.6, 5.8, 7, 8, and Order Forms for Perpetual Licenses or Hardware will survive termination or expiration of this Agreement.
6. WARRANTIES 
   1. Warranties for Perpetual Licenses. MicroVision hereby warrants, for the benefit of Customer only, that Software provided on a perpetual basis will conform to the applicable Documentation (the “Warranty”) during the Warranty Period (defined below), provided that the Warranty will not apply to failures to conform to the applicable Documentation to the extent such failures arise, in whole or in part, from any modification of the applicable Software by Customer or any third party or any combination of the applicable Software or Firmware with APIs, other software, hardware, or other technology not provided by MicroVision under the applicable Order Form. If notified in writing by Customer during the Warranty Period of a negative deviation from the applicable Documentation, MicroVision will, at its sole option, either (a) remedy the deviations, at no cost to Customer and within a reasonable time, or (b) replace the defective Software. MicroVision is not responsible for any defect or error not reported during the Warranty Period or any defect or error caused by any Software that Customer has modified, misused, or damaged. 
   2. Warranties for non-perpetual licenses. MicroVision warrants that Software provided on a non-perpetual basis will perform in all material respects as set out in MicroVision’s relevant specification throughout the License Term of the applicable Order Form, provided that MicroVision shall not be liable for initial defects (anfängliche Mängel) as contemplated by § 536a (1), variant 1 of the German Civil Code.
   3. Warranty Period. Customer’s warranty claims against MicroVision shall expire after twelve (12) months (the “Warranty Period”), provided that instead statutory limitation period shall apply in the case of intentional or fraudulent conduct, in the case of claims under the Product Liability Act and in the case of personal harm or death.
   4. Mutual Warranties. Each Party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms and (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of this Agreement.
7. LIMITATIONS OF LIABILITY
   1. Limitations. Each Party is liable without any limitation for damages (i) with respect to injury to health, body or life or (ii) that result from willful misconduct or gross negligence of the relevant Party, its representatives or agents in the performance of the contractual obligations. The same applies to damages which result from the absence of a quality which was guaranteed by the relevant Party. Except for cases covered in sentence no. 1 (i) or sentence no. 2, each Party will be liable in the case of slight negligence only if an obligation is violated that is of essential importance for the proper performance of an agreement (“cardinal obligation”) and the other Party may rely on the fulfilment of this obligation. Each Party’s liability according to the German Product Liability Act remains unaffected. Any further liability is excluded. 
   2. Expiration. Damage compensation claims expire within twelve (12) months, provided that statutory limitation period applies to (i) damages caused intentionally or with gross negligence; (ii) in case of a breach of a guarantee or personal harm or death; or (iii) claims according to the Product Liability Act.
8. MISCELLANEOUS
   1. Entire Agreement. This Agreement, including all exhibits, is the final and complete expression of the agreement between these Parties regarding the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the Parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the Parties relating to other products or services of MicroVision that are not described in an Order Form and with respect to which Customer has executed a separate agreement with MicroVision that remains in effect. No employee, agent, or other representative of MicroVision has any authority to bind MicroVision with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the Party against whom enforcement is sought. MicroVision will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Customer in any purchase order, receipt, acceptance, confirmation, correspondence, or otherwise, unless MicroVision specifically provides a written acceptance of such provision signed by an authorized agent of MicroVision.
   2. Nonassignment; Binding Agreement. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Customer, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of MicroVision, which consent will not be unreasonably withheld. Any assignment in violation of this Section is void. MicroVision may assign this Agreement in connection with a change of control or to the direct or indirect acquirer of a majority of MicroVision’s stock or assets relating to the applicable Technology. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns.
   3. Relationship. MicroVision will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of this Agreement.
   4. Written Form. All legal notices (including in particular notifications of termination), approvals, consents and waivers under the terms of this Agreement or any Order Form (each, a “Notice”) shall be in writing or transmitted via an electronic delivery service that complies with the Regulation (EU) No 910/2014 of the European Parliament of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (eIDAS Regulation). 
   5. No Warranties. No employee, agent, representative, or affiliate of MicroVision has authority to bind MicroVision to any oral representations or warranty concerning Technology. Any written representation or warranty not expressly contained in this Agreement will not be enforceable.
   6. Force Majeure. Each Party will be excused from any delay or failure in performance hereunder, other than the failure to make payments when due, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements, any kind of pandemics (statements/recommendations by the Foreign Office/WHO are considered indicative, e.g. such as for COVID-19) or epidemics (each a “Force Majeure Event”), that were not foreseeable at the time of conclusion of the Agreement / Order Form. The obligations and rights of the Party so excused will be extended on a day-to-day basis for the period of time equal to that of the relevant Force Majeure Event; provided however that (i) the affected Party gives prompt written notice to the other Party and takes commercially reasonable steps to mitigate the effects of the applicable Force Majeure Event, and (ii) after a delay of ninety (90) calendar days or more after the affected Party’s notice, either Party may terminate this Agreement or Order Form upon written notice to the other given in accordance with the notice provisions hereof. 
   7. Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, the Parties will endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the Parties fail to agree on such an amendment, such invalid term, condition, or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
   8. Export. Customer acknowledges that Customer’s use of MicroVision’s Technology can be subject to US export laws. 
   9. Counterparts. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and those counterparts together will constitute one and the same agreement.
   10. Governing Law. This Agreement will be interpreted and enforced in all respects in accordance with the local laws of Germany, without reference to its conflicts of law rules and the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Exclusive personal jurisdiction of the courts shall be Hamburg to the permitted extent. 
   11. Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation”; (b) the words “such as”, “for example” “e.g.” and any derivatives of those words will mean by way of example and the items that follow these words will not be deemed an exhaustive list; (c) the word “or” is used in the inclusive sense of “and/or” and the terms “or,” “any,” and “either” are not exclusive; (d) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (e) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (f) whenever the context may require, any pronouns used in this Agreement will include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns will include the plural, and vice versa. The headings set forth in this Agreement are for convenience of reference purposes only and will not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision hereof. References to “$” and “dollars” are to the currency of the United States of America. References to “€” and “euros” are to the currency “EURO”. Any law defined or referred to herein means such law as from time to time amended, modified or supplemented, including (in the case of statutes) by succession of comparable successor laws.