END USER LICENSE AGREEMENT (EULA)
GRAVOTECH MARKING END USER LICENSE AGREEMENT
This End User License Agreement is between GRAVOTECH MARKING SAS, a French Company with its principal place of business at 446 Rue des Mercieres, Z.I. PERICA, 69140 Rillieux La Pape, FRANCE (hereinafter “Company’) and the legal entity that has entered into this Agreement as Licensee (hereinafter ”licensee”).
Company provides Licensed Programs under several different Brands. Licensee may order licenses for any Licensed Programs by accepting these General Terms and the applicable Appendix if any. To the extent the Licensed Programs have been ordered by Licensee under a Quote issued by a Reseller, as defined hereunder, then this Agreement is made by and among Licensee, Company and such Reseller. Each Party acts exclusively in its own name and on its own behalf with respect to the rights and obligations set below.
The parties agree as follows:
1.1. Agreement means the present End User License Agreement, which is comprised in order of precedence, of these General Terms, any eventual Appendices and Quote or order confirmation if any pursuant to which Licensee placed its order with Company or Reseller, as applicable.
1.2. ALC means Annual License Charge as defined in Section 4 of these General Terms which may be compulsory for some Licensed program.
1.3. Anniversary Date of the License is the anniversary date of (i) the date set by Company or Reseller as applicable, pursuant to Section 4 of these General Terms, or, if not existing (ii) the corresponding Effective Date of the License.
1.4. Appendix means an appendix to these General Terms containing additional or different terms and conditions relating to Licensed Program of the identified Brand or product range.
1.5. Brand means a brand, trade name, service mark or trademark under which Company markets a set of Licensed Programs.
1.6. Build (or Release when specifically referring to Catia’s products) means a periodic delivery of a Licensed Program which mainly includes the correction of Error(s) for a given version, if and when generally made available to the market and possibly minor software features enhancements.
1.7. Cloud means any Third Party Cloud system (i.e network access to a shared pool of configurable computing resources and data (servers, storage, network, applications and services) used or provided via Company during or in the view of the execution of the Licensed Program. Customer shall remain the sole owner, and liable, of its own data while using Cloud. When accepting to use the Cloud service, Customer undertakes to comply with Third Party’s applicable terms and conditions including privacy policies.
1.8. Dongle: when associated with a license file or an activation code means a unique hardlock USB key device that can be used to unlock the Licensed Program. This equipment allows the end user, when physically connected to the computer on which the Licensed Program is installed, to activate and use said Licensed Program in accordance with the user license granted. The Dongle contains, in particular, the activation key of the license granted to the Customer. In consequence, the Dongle is essential for using the license and constitutes the physical embodiment thereof. Such a security mechanism may store data relating to the number of use and/or users and Company reserves the right to check appropriate usage of the Licensed Program. Licensee may not take steps to avoid or defeat this security mechanism. Use of the Licensed Program without the security dongle is prohibited.
1.9. Documentation means at any time, the current user documentation in any form or media as made available by Company for use in connection with Licensed Program, including notably hardware and software configuration requirements.
1.10. Effective Date of the License means, for any license for a Licensed Program, the date on which such Licensed Program is shipped or made available electronically to Reseller or Licensee by Company or, if applicable the date on which Licensee or Reseller is informed by Company that the associated license key can be requested or is available.
1.11. Equipment means any Gravotech Group’s engraving, marking and coding, prototyping, traceability machines on which Licensed Program may be embedded or installed provided to Licensee.
1.12. Error means a material malfunction in the performance of a Licensed Program, as per performance described in Documentation, and which malfunction is reported, in accordance with the applicable support policy and reproducible by Company.
1.13. Licensed Program means any data processing program for which a license is ordered by and provided to Licensee pursuant to a Quote, consisting of a series of instructions or databases in machine readable form, associated Documentation, service and Build. Licensed Program do not include new versions of a Licensed Program, including any successor product which significantly differs in architecture, user interface or mode of delivery.
1.14. License: the Licensed program marketed by the Company will only operate with a valid license file, which may be attached or not to a Dongle or a Soft Lock key.
1.15. Machine(s) means computer equipment belonging to Licensee or under its sole control or supervision, located at Licensee’s premises and on which the Licensed Program may be solely executed.
1.16. Master Site means the single site designated by Licensee, and indicated in the Quote, which may be changed by written notification to Company or Reseller as applicable and to which all deliveries and Support Service will be provided. If not specified in the Quote, the Master Site shall mean the headquarter of the ordering entity.
1.17. PLC means Primary License Charge as defined in Section 4 of these General Terms which may be available and compulsory for some Licensed Program.
1.18. Quote means a commercial proposal containing a quote for Licensed Program made to Licensee either by Company, or by Reseller if any, stating its identification, quantities, and scope. Unless stated otherwise, prices quoted are valid for usage in a single Master site / or single Territory. Additional charges may apply if license is to be used in multiple sites, regions or Territories.
1.19. Reseller can be either (i) an appointed reseller within Company’s distribution network or (ii) a Company’ Subsidiary.
1.20. Service Pack means pre-installed computer program not provided by Company. Such Service Pack may be a critical prerequisite for Licensed Program installation and proper functioning.
1.21. Subscription Level Option means some functions packs which may be available for some Licensed Program defined by level which grants to the Licensee a certain level of functions in addition to the standard Licensed Program, all Build, all Version Upgrade available for such Licensed Program, and additional warranty.
1.22. Subsidiary(s) means with respect to any party, any entity which controls, is controlled by, or is under common control with such party. Such entity shall be deemed to be a “Subsidiary” only so long as such control exists. For the purpose of this definition, “control” and/or “controlled by” means (a) in the case of corporate entities, direct or indirect ownership of more than fifty percent (50%) of the stock or shares entitled to vote for the election of the board of directors; or (b) in the case of non-corporate entities, direct or indirect ownership of more than fifty percent (50%) of the equity interest with the power to direct the management and policies of such non-corporate entities.
1.23. Support Service means the maintenance, enhancement and/or other support services referred to in Section 2 of these General Terms.
1.24. Soft Lock Key: for some Programs, and upon Company’s decision based on availability, a Dongle may be replaced by a Soft Lock Key. When associated with a license file or an activation code, the Soft Lock Key will be used to unlock the Licensed Program, and replaces the Dongle. This equipment allows the end user, to activate and use said Licensed Program in accordance with the user license granted, on the computer where the Licensed Program is installed. In consequence, the Soft Lock Key (when replacing the Dongle) is essential for using the license. Such a security mechanism may store data relating to the number of use and/or users and Company reserves the right to check appropriate usage of the Licensed Program. Licensee may not take steps to avoid or defeat this security mechanism. If any, use of the Licensed Program without the Soft Lock Key is prohibited.
1.25. Territory means the Territory where the Licensed Program is granted. Such Territory shall be defined in the quote or order confirmation. If not specified otherwise, the Territory shall mean the Master Site of the purchasing entity who has placed the order.
1.26. Third Party Software Specific Terms means the Terms in force and applicable to Third Party Software which software may be part of the Licensed Program or which may constitute the Licensed Program itself.
1.27. Users mean Licensee’s individual or employees, or individual employees of Licensee’s consultants or subcontractors who have access to the Licensed Program on Machines or Equipment and work for the Licensee’s exclusive internal needs.
1.28. Version Upgrade means a new version released by Company, providing Licensee with new features, as well as bug fixes.
2. LICENSE RIGHTS
2.1. License rights.
Upon the Effective Date of the License and subject to compliance with the terms and conditions of this Agreement,), Company grants Licensee a non-exclusive and non-transferable license to use the Licensed Program only (i) on Equipment and/or (ii) Machines for the duration and/or number of Users, for the Master Site (or Territory if specified) as stated in the quote. Unless otherwise provided by law or any applicable rule, or unless otherwise agreed in writing between the Parties, Licensee is not entitled to sublicense. Licensed Program shall be used in accordance with its Documentation and this Agreement. Dongles or Soft-Lock keys which may be provided by Company do not themselves grant the legal right to use the Licensed Program. Depending of the security mechanism applicable to the granted Licensed Program, use of said Licensed Program either without Dongle, License or Soft Lock key is prohibited.
Certain Licensed Program may either contain third party software components or be per se third party software products submitted to certain Third Party Specific Terms. If this applies, details will be given in eventual Appendices.
Except as expressly set forth herein, no other express or implied right, guarantee or license is provided to Licensee. All other rights not specifically granted are expressly reserved to Company.
2.2.1. Unless expressly stated otherwise, Licensee is not authorized to sublicense, assign or otherwise transfer the License(s) granted under this Agreement to any third party whatsoever. Licensee shall not decompile, reverse engineer, disassemble, remove or circumvent the License or part of it.
Without Company’s express prior consent Licensee shall not use and install the License granted (i) outside the Master Site or Territory defined in the quote if any or (ii) with any third party equipment. Such additional use may entail extra fees to be quoted separately.
Licensee is not authorized to: (i) use the Licensed Program to develop software applications to be used by itself or any third party, or distributed to any third party, whether in whole or part, whether as standalone products or as components, and whatever be the distribution channel (including without limitation through the Internet or as Internet-based services), (ii) or to perform or offer any kind of services relating to the Licensed Program, including but not limited to, consulting, training, assistance, outsourcing, service bureau, customization or development relating to the Licensed Program for any third party, regardless of how such services are offered or performed (including without limitation through the Internet or as Internet-based services) except as expressly otherwise agreed in an Appendix.
2.2.2. Licensee shall not correct bugs, errors, defects and other operating anomalies of the Licensed Program. Specific Restrictions regarding Education licenses:
Licensed Program supplied by Company under an “Educational partnership” agreement or identified as “Education” licenses or granted to educational institutions:
* shall be used within an official established education center, whose main activity is educating students about specific software applications such as Company’s Licensed Program.
* shall not be used for any commercial, manufacturing or production activity or purpose, whether remunerated or not
* shall not be transferred, assigned, given, lent, leased even on a temporary basis to any other person or institution than those designated in the contract
shall be only used in the location designated as the education center mentioned in the Educational partnership agreement.
2.3. Copies. To the extent authorized by law, Licensee may make the required number of copies of the Licensed Program for installation purpose corresponding to the number of ordered Licenses and one copy for back-up per Machine.
2.4. Support Service.
2.4.1. for Licensed Program ordered under a PLC/ALC scheme, and as specified in the quote if applicable: ALC is a compulsory yearly fee, payable by Licensee, and allowing Licensee to receive and use the latest Builds and benefit from support during the period covered by the ALC. Upon payment by Licensee of the applicable ALC, Licensee will receive its License file to use the Licensed Program. The term of these services runs for one year from each Anniversary date of the Licensed Program.
2.4.2. for License Program not ordered under a PLC/ALC scheme: As an option and if available for concerned Licensed Program, Licensee may subscribe to a “maintenance” or “support contract” for the Licensed Program by paying the corresponding fees. Licensee and Reseller shall contract separately for such services.
3. OTHER RIGHTS AND OBLIGATIONS
3.1. Licensee shall ensure technical compatibility and interoperability of its information system with Licensed Program at all times and at its own costs. Licensee shall also ensure that needed hardware and/or software configuration and requested Service Pack are duly installed before Licensed Program’s implementation.
3.2. Relationship with the Reseller: In the event that Reseller is a party to this Agreement it is specifically understood and agreed by Company, Licensee and Reseller respectively that any and all rights and obligations of the concerned Parties herein shall be subject to Reseller’s right, remaining in full force and effect, to distribute the Licensed Program. Should (i)Reseller cease for any reason to be entitled to distribute the Licensed Program, or (ii) Reseller elect to withdraw from the Agreement according to article “Withdrawal of Reseller” or (iii) Reseller breach this Agreement and such breach is not cured within thirty (30) days following notification, Reseller shall automatically cease to be a Party to this Agreement without any right to compensation, indemnity or set off of any kind. Consequently, Company will upon written notification to Licensee either elect to assume directly all of Reseller’s rights and obligations under this Agreement and/or assign or transfer them in whole or in part to any other authorized reseller duly appointed by Company. Reseller hereby undertakes to provide all necessary assistance and to complete all formalities required or advisable, as the case may be, to achieve the purpose of the above.
3.3. Delivery conditions: Within a reasonable time period after quote or order acceptance, Company or Reseller, as applicable, will deliver to Licensee one (1) copy of such Licensed Program, or make the Licensed Program electronically available (only for the first order for the Licensed Program release under each operating system). The delivery may generally occur through the form of a Dongle or Soft-Lock key in addition to a License file, as described in Section 1. If sole License file is available or requested, Licensed Program will be downloadable by Licensee on Company’s site or License distribution server or posted by e-mail. From time to time Company or Reseller may provide Licensee with a user name, password, and specific instructions for accessing and downloading the Licensed Program.
Licensee is responsible for accessing Company’s site or license distribution server to download the Licensed Program. Unless otherwise agreed in writing by the Parties, shall no Reseller be part to this Agreement, and in the event the Licensed Program is not electronically deliverable, Licensed Program ordered by Licensee shall be delivered EXW (incoterms 2010) Company’s premises as identified in the Quote unless agreed otherwise between the Parties.
After a five (5) day period following delivery (physically or electronically), Licensed Program shall be considered as definitely accepted, fit for its intended purpose and conform to the order. Such acceptance does not prevent the Licensee to activate Warranty defined in Section 8.
3.4. Licensee shall do its best efforts to protect the Licensed Program and related, Dongles, Soft-lock keys, from damage, theft or loss, which are not replaced for free.
Licensee hereby acknowledges that Dongle constitutes physical embodiment of the Licensed Program. Licensee also acknowledges that Soft-lock keys, when replacing Dongles, are unique and attached to a specific hardware (Licensee’s Computer or Server). Thus the Licensee shall take out appropriate insurance to cover all risks and loss that may affect said Licensed Program, Dongles or any hardlock keys, or Soft-Lock key, as well as hardware to which it is attached.
Shall a Dongle be broken, stolen or lost, Licensee shall pay full Licensed Program’s price to replace said Dongle unless (i) broken Dongle is returned carriage paid to Company or Reseller or (ii) Licensee provides Company or Reseller with official police report in case of theft. Subject to (i) and (ii), and solely for current version of the Licensed Program specific tariff policy shall apply to replace broken or stolen Dongle. Company doesn’t undertake to provide or exchange old version Dongle.
In case of Soft-Lock keys to be replaced because of a License hardware change, upon Company’s request, Licensee undertakes to delete the former Licensed Program and the related License from replaced hardware, and not to use the initial License anymore. Company may require destruction proof from Licensee.
3.5. Licensee undertakes to comply with all terms and conditions applicable to the Cloud system used with the Licensed Program including if such Cloud is supplied by a third party provided that it has been duly informed about the existence of such Cloud and its related terms and conditions.
4. PRICE AND PAYMENT TERMS
4.1. General provisions
4.1.1. Prices of each License, PLC, ALC, or Subscription Level Option, or Support Service/maintenance contract may vary and are specific to each country or region as the case may be.
4.1.2. In consideration for the rights granted related to Licensed Program and/or Support Service, in accordance with these Terms, and unless otherwise agreed between the Parties, Licensee shall pay Companyor Reseller the applicable license fees or price within thirty (30) days invoice date at the price identified in the corresponding Quote or accepted order.
4.1.3. Depending of the Licensed Program or Support Service concerned, such price or fees may be invoiced on a periodic basis or on a fixed lump sum basis.
4.1.4. All prices are exclusive of any applicable taxes. Licensee shall be responsible for payment of any and all taxes, duties, excises, import VAT or similar charges of any nature whatsoever, in force or enacted in the future, that are levied, assessed, charged, withheld, or collected for or in connection with Licensed Program and Support Service provided herein or otherwise arising in connection with this Agreement, but excluding domestic taxes of Company or Reseller based on Company’s or Reseller’s net income. Licensee shall provide Company or Reseller with all requested tax or import/export documentation.
4.1.5. In case of failure to comply with the due date of payment, all debt towards Company, will carry out interest at the rate used by the European Central Bank at its last refinancing operation plus ten (10) points, such interest being at least equivalent to three times the French legal interest rate. Late penalties shall be due without need of a reminder. Any delay in payment will lead, without prejudice of any other damages or late penalties, to the allowance of a lump sum of forty (40) Euros (sum fixed by decree) as compensation for recovery costs. The failure by the Licensee to pay an invoice on due time also enables Company, or Reseller to require the immediate payment of any other debt owned on Licensee, even if not due yet. Should Licensee fail to pay due invoices, Company or Reseller shall also be entitled to charge, on the sums recovered pursuant to legal proceedings, an additional indemnification as a penalty clause amounting twenty percent (20%) of the said sums plus reasonable attorneys’ fees and costs incurred by Company and/or Reseller, as applicable, in collecting unpaid amounts.
4.1.6. Shall Licensed Program be provided by Reseller, Reseller’s payment terms and conditions shall apply.
4.1.7. Company or Reseller shall be entitled to require the communication of accountable, financial or legal documents before creating any account receivable and if needed, constituting prior guarantees.
4.1.8. Company or Reseller reserves the right to submit the execution of the contract, at any time and even after part delivery, to the immediate payment or to the constitution of securities whatever payment terms agreed on.
4.1.9. Company or Reseller, as applicable, shall have the right to set a common Anniversary Date for the payment of ALC (as described in 2.4) as the case may be, with respect to any license with different Effective Dates (subject to prorated calculation of any charges due for any period not covered as a result thereof).
4.1.10. Unless otherwise agreed in writing by Company or Reseller, as applicable, all recurring charges such as ALC, fees, or subscription fees, will be invoiced on a yearly basis and paid by wire transfer within thirty (30) days from the invoice date. Unless agreed otherwise, Subscription Level Option shall be invoiced on a quarterly basis.
4.2. Specific terms
4.2.1. Primary License Charge or “PLC” (when applicable): The Primary License Charge is applicable for each License of each Licensed Program ordered under the PLC/ALC pricing structure. The PLC is a one time, non-refundable charge. Payment of the PLC for a Licensed Program provides Licensee with a perpetual license (subject to the conditions set forth in Section 2 of these Terms) to use the Release of such Licensed Program made available by Company on the initial purchase date.
Annual License Charge or “ALC” (when applicable): Payment of the ALC is due upon first purchase of Licensed Program and entitles Licensee to benefit from (a) a Support Service for the Licensed Program for one year and (b) a license (subject to the conditions set forth in Section 2 of these General Terms) to use the Release and/or Build of such Licensed Program made available by Company during such year. The Annual License Charge is a yearly fee, payable in advance. For the first year of each license of each Licensed Program, Licensee shall pay the ALC together with the PLC. The ALC fees shall not vary for the first two years of each license granted. After this two-year period, Company or Reseller may revise the price of the ALC, not more than once a year, on the basis of a relevant index identified in Company’s or Reseller’s price list applicable as of the date of the Quote. Such fees revision shall be notified to Licensee in writing at least two (2) months prior to the applicable Anniversary Date of the License.
Subscription Level Option: Means the subscription to a pack of functions, defined by level, which grants to the Licensee a certain level of functions in addition to the standard Licensed Program, all Builds and Version Upgrade available for such Licensed Program and additional warranty.
4.2.2. Transfer of granted License to a Machine located in another territory (site, country or region) than the Territory initially quoted and ordered is subject to Company’s prior written approval and may be subject to a price’s adjustment.
5. INTELLECTUAL PROPERTY RIGHTS
5.1. All intellectual property rights granted herein including without being limited to copyrights, trademarks, designs, know-how or patents related to (i) the Licensed Program (ii) derivative works, modification and enhancement and/or to other materials, products or services (including Support Service) supplied by Company under this Agreement and (iii) its associated Documentation (including any copies, compilations, made by or for Licensee, in whole or in part) belong exclusively to Company or its Third Party Licensors such as Cloud provider and shall remain the sole property of Company or other Third Party Licensor from whom Company has been lawfully authorized.
5.2. Licensed Program and associated Documentation, including, without limitation, reports, programs manuals, leaflets, and any other documentation, whether in object or source code or not, may be Confidential Information submitted to Section 7 hereunder, and are and shall remain the exclusive property of Company or Third Party Licensors. Company or its Third Party Licensors have the exclusive right to obtain, affix and hold in their own name copyright, patent, design, trademarks, or such other intellectual property right on Licensed Program as may be available. Licensee shall preserve and reproduce any copyright, patent, designs and trademark notices which may appear in the Licensed Program and related Documentation on all copies thereof whether in whole or part. Licensee shall keep full, true and accurate records of all copies of the Licensed Program and associated Documentation, which records shall be available for audit by Company.
5.3. Licensee shall not copy, duplicate, reverse engineer, decompile, disassemble, reproduce, distribute, modify or otherwise translate all or part of the Licensed Program except with Company’s prior written approval. With the exception of a backup copy made by and only for Licensee who has lawfully acquired Licensed Program, or unless otherwise authorized by Law, Licensed Program, its related Documentation, Dongle, information or exploitation results cannot be copied, given for free, sold, transferred (wholly or partly) to third parties. Licensed Program is protected by copyright and French Intellectual Property Code provisions and by applicable international rules.
5.4. Any breach of such provision would be punished under Intellectual Property Code provisions or any other applicable law including criminal law.
6. INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT AND RELATED LIABILITIES
6.1. Unless otherwise specified in applicable Third Party Software Specific Terms, Company will defend Licensee against any and all claims made by another third party that a Licensed Program delivered under this Agreement infringes such other third party’s copyright or patent, provided that (i) Licensee provides Company with prompt written notice of the claim, and (ii) Licensee gives Company control of the defense of the claim and provides reasonable cooperation in the defense of the claim, and (iii) in the case of a patent, trademark or design infringement, the related patent, trademark or design has been granted and published as of the date of Licensed Program’s delivery to Licensee. In all cases Company’s liability shall be limited to the price paid by Licensee for concerned Licensed Program during the last twelve months.
6.2. Company shall have no obligation to defend or indemnify Licensee against any claim arising out of or in connection with any modification of a Licensed Program made by Licensee or anyone else but the Company, or arising from the use of one or more Licensed Program in combination with other elements, data, programs not provided or beforehand approved by the Company, or the use of Service Packs (including third party’s service packs), Build or Release other than the most recent one provided by the Company or Reseller as applicable.
6.3. If a Licensed Program becomes, or in Company’s reasonable opinion, is likely to become the subject of such an infringement claim, Company will decide at its sole option and expense, either to secure for Licensee the right to continue using the Licensed Program or to modify it, or replace it with another program which is functionally equivalent. If neither of the foregoing options is feasible on terms which are reasonable in Company’s opinion, Licensee shall destroy or return said Licensed Program, and all copies thereof, to Company within one (1) month from Company’s written request. In such a case, Company will grant to Licensee a credit for the corresponding current License or maintenance contract yearly fees paid.
6.4. This Section 6 states Company’s entire liability and Licensee’s exclusive remedy for any claim related to infringement of intellectual property rights under this Agreement.
7.1. Confidential Information means all information of any kind, and including without limitation specification and/or information, technical, scientific, economical, commercial, marketing, financial and strategic data, source code, object code, related to the technic and/or know-how belonging to the Company and/or related to Licensed Program or other Company’s products and services, disclosed orally or in writing on whatever kind of medium, including but not limited to documents, computerised documents or electronic files or similar medium, by providing sample during meetings held during or in the view of the performance of the Agreement. A partial element, a combination or a compilation of information part of the Confidential Information shall be submitted to the same obligations as the Confidential Information. Licensee agrees to keep strictly confidential any and all Confidential Information that the Company would disclose under this Agreement. Consequently, Licensee shall neither show, nor disclose, nor transmit Confidential Information or any element covered by an intellectual property right belonging to Company in any form and by any means whatsoever to a third party (including without being limited to agent, representative or subcontractor), whether the latter is a related party or not, without the prior written approval of the Company.
7.2. Licensee undertakes to take all required measures for securing its premises and IT equipment and system to preserve Licensed Program and related Confidential Information. Licensee shall take all appropriate measures regarding its own staff in order to preserve the duties of confidentiality set forth herein including after their departure from Licensee’s company.
7.3. Licensee recognizes that the Documentation, method, techniques, ideas, know-how, object or source code, contained in or expressed within the Licensed Program and associated Documentation are proprietary information or shall be part of know-how or trade secrets of Company or other Third Party licensors. Licensee shall treat them as Confidential Information and shall only disclose such information on a need to know basis to its own staff for the sole purpose of using the Licensed Program.
7.4. Licensee shall not disclose know-how, trade secret or Confidential Information as long as this Agreement remains in force and for ten (10) years thereafter.
7.5. Licensee shall not provide, disclose or transmit any Licensed Program, nor any tests results or benchmarks related to any Licensed Program, or copy thereof, in whole or in part, without the prior written consent of Company, except to Users within the limits of the rights granted under this Agreement. Licensee shall take appropriate action towards Users to ensure that Licensee complies with its obligations under this Agreement.
8. WARRANTIES, LIMITATION AND DISCLAIMER
8.1. Subject to continuing payment of the applicable charges and fees, Company warrants for ninety (90) days from delivery to Licensee (the “Warranty Period”), that the version of any Licensed Program or its Build/Release will materially conform to its Documentation provided that Licensed Program is properly used in the operating environment and in accordance with instructions specified by Company and/or Reseller. If such Build /Release or Version of the Licensed Program does not conform, Company will do its best efforts to make the Licensed Program perform as warranted. Company also provides a warranty covering any manufacturing and operating defect or flaw of the physical media of the Licensed Program and Dongles for a twelve (12)-month period as from the invoice date of the Licensed Program. Company may be forced to request Licensee to install a specific hardware configuration or Service Pack (including third party’s one) or new Build/Release to reach such expected performance. Within the Warranty Period, if after sixty (60) days as from notice by Licensee of the non-conformity, Company has not provided a conforming Licensed Program, Licensee’s sole and exclusive remedy and Company’s entire liability for any breach of such warranty is for Licensee to terminate the License related to the non-conforming Licensed Program within thirty (30) days after such sixty-day (60) period and obtain the refund of paid charges or fees for such Licensed Program. During warranty period, the Licensee must draw up a report on said manufacturing defects or flaws, otherwise Company shall not be required to correct them. Company reserves the right to correct said manufacturing defects or flaws by the means of its choice, including by using a by-pass solution. The warranty is not applicable in case of incidents, manufacturing defects or flaws arising from fortuitous events or Licensee’s or third party’s intervention on the Licensed Program.
8.2. Company cannot warrant that the Licensed Program will remain uninterrupted, will be free of Errors, discontinuity, bugs or that it will meet the Licensee’s expected performance or result requirements, functional or operational expectations or applications other than those beforehand agreed between the Parties. Company does not warrant that Licensed Program will enable Licensee to reach the objectives Licensee has set for itself, or that it will operate in the combination or environment selected for use by Licensee. In all instances, Licensee shall be responsible for ensuring that the results produced by Licensed Program comply with quality and safety requirements set for Licensee’s products or services. None Company or Reseller’s including its employee or agent is authorized to give a greater or different warranty than those expressly set forth herein.
8.3. THE FOREGOING WARRANTIES ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON INFRINGEMENT.
8.4. Licensee shall have exclusive responsibility for (a) program selection to achieve Licensee’s intended results and purpose, (b) Licensed Program installation, and combination with third party’s equipment, Service Pack or program, (c) taking adequate measures to properly test, operate and use each Licensed Program and results obtained therefrom. Licensee shall be solely responsible for selection, use and results of any other programs or programming equipment or services used in connection with the Licensed Program.
9. RESPONSIBILITY AND LIMITATION OF LIABILITY
9.1. Licensee acknowledges that breach of one or more of its obligations including obligations related to payment, intellectual property or confidentiality, provided in this Agreement could cause the Company irreparable harm. Licensee further acknowledges that without prejudice to any other rights and remedies Company may have, Company shall be entitled to seek injunctive relief concerning any threatened or actual breach of any of the provisions of this Agreement.
9.2. This Agreement will not operate so as to create a partnership, or joint venture, or agency of any kind between the Parties. Licensee shall not have, nor present itself as having, the right, power or authority to represent, bind or commit Company. Each party is independently and exclusively liable for its own obligations set forth in or arising from this Agreement. None party can be held jointly and/or severally liable with another party nor be deemed an agent of the other pursuant to this Agreement.
9.3. TO THE EXTEND AUTHORIZED BY LAW, AND UNLESS OTHERWISE SPECIFIED IN APPLICABLE SPECIFIC TERMS FOR THIRD PARTY SOFTWARE, RESELLER AND COMPANY’S POTENTIAL LIABILITY TO LICENSEE, FOR ANY AND ALL CLAIMS ARISING FROM OR IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT IS LIMITED AS FOLLOWS:
9.3.1. ALL LEGAL ACTIONS AGAINST COMPANY OR RESELLER MUST BE FILED WITH THE APPROPRIATE JUDICIAL JURISDICTION WITHIN TWO (2) YEARS AFTER THE CAUSE OF ACTION HAS ARISEN.
9.3.2. COMPANY’S AND RESELLER’S AGGREGATE LIABILITY FOR DIRECT DAMAGES SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT CORRESPONDING TO CHARGES ACTUALLY PAID BY LICENSEE IN THE PRECEDING TWELVE (12) MONTHS PERIOD FOR THE USE OF THE LICENSED PROGRAM WHICH CAUSED THE DAMAGE.
9.3.3. LICENSEE EXPRESSLY AND IRREVOCABLY WAIVES, AND NEITHER COMPANY NOR RESELLER SHALL HAVE ANY LIABILITY IN RESPECT OF, ANY AND ALL CLAIMS FOR INDIRECT, INCIDENTAL AND CONSEQUENTIAL DAMAGES, INCLUDING CLAIMS FOR LOST PROFITS, ECONOMIC LOSS, BUSINESS INTERRUPTION AND LOSS OF DATA OR OPPORTUNITIES, THAT IN ANY WAY RELATE TO THIS AGREEMENT, LICENSED PROGRAM OR DOCUMENTATION, WHETHER OR NOT COMPANY OR RESELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.
9.4. LICENSEE EXPRESSLY WAIVES ANY AND ALL CLAIMS FOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, FOR ANY REASON AND ON ANY BASIS, AGAINST ANY COMPANY’S SUPPLIERS, OR SUBCONTRACTORS OR AGAINST ANY OTHER ENTITY THAN COMPANY ITSELF OR RESELLER IF APPLICABLE.
9.5. COMPANY OR RESELLER SHALL NOT BE HELD LIABLE FOR ANY LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE BY LICENSEE AND/OR PROVISION BY COMPANY OR RESELLER OF A CLOUD SYSTEM, INCLUDING THIRD PARTY’S CLOUD, DURING OR IN VIEW OF THE EXECUTION OF THIS AGREEMENT. IN CONSIDERATION TO THE INTERNET, NEITHER COMPANY NOR RESELLER CANNOT GUARANTEE CONTINUOUS SERVICE, ABSENCE OF VIRUS OR INTRUSION, SERVICE AT ANY PARTICULAR TIME OR INTEGRITY OF DATA STORED OR TRANSMITTED VIA ITS SYSTEM, CLOUD, OR VIA THE INTERNET.
10. EXPORT AND REEXPORT LAWS AND REGULATIONS
Export to Licensee of Licensed Program and Documentation is subject to all applicable countries’ export and re-export laws and regulations. Licensee shall provide Company or Reseller as the case may be with all necessary assistance for any application for such authorizations, licenses and other approvals, or other documentation related to the export or re-export of Licensed Program. Company or Reseller shall have no liability whatsoever towards Licensee if such authorizations, licenses or approvals are not obtained. Licensee shall not export or re-export, either directly or indirectly, Licensed Program or Documentation when such export or re-export requires an export license or other governmental approval without first obtaining such license or approval.
11. TERM AND TERMINATION
11.1. This Agreement shall come into force on the Effective Date of the License in respect of each License ordered by Licensee and shall remain in full force and effect until the expiration of each License granted under this Agreement, unless terminated as provided hereunder. Unless stated otherwise, for periodic License, Licensee may terminate any License of any Licensed Program ordered by providing written notice to Company and to Reseller, if any, at least one (1) month prior to the Anniversary Date of the License, failing which such License shall be automatically renewed for a one (1) year period.
11.2. Either Company or Licensee may terminate this Agreement and/or any License granted under this Agreement, if the other breaches any one of its obligations and has failed to remedy such breach within one (1) month after receipt of appropriate written notice. The termination will not prejudice the rights and remedies of the non-breaching party. Any breach of any of the obligations stated in the clauses License rights, Other rights and obligations, Price and payment terms, Intellectual property rights, Intellectual property rights infringement and related liabilities, confidentiality, warranties, limitation and disclaimer (art.8.4), and export and reexport laws and regulations of this Agreement shall constitute a material breach according to this provision 11.2.
11.3. In all cases of termination of the Agreement, Licensee shall provide after effective termination and within fifteen (15) days to Company and upon request of the latter, a written certificate that all copies, in whole or in part, of the Licensed Program and associated, Dongles or Documentation, have been duly destroyed or returned (for Dongle license) to Company.
11.4. Specific provisions regarding termination under PLC/ ALC scheme: In case of termination, Company will deliver, if applicable, the license keys necessary for Licensee to operate its perpetual licenses for the version lastly ordered with the ALC. Company shall have no further obligation to provide any service or deliver any Build /Release in support of any such license, including for operation of the License in its hardware or software environment.
11.5. Withdrawal of Reseller: In the event Licensee fails to pay any ALC or any License charges or fees when due to Reseller, Reseller shall have the right, subject to a thirty (30) days prior written notice sent to Licensee and Company, to withdraw from this Agreement, provided it is not in breach of any of its obligations set forth herein. Consequently, Reseller shall cease to be a party to this Agreement, and shall have no further right or obligation herein.
12.1. Purchase Orders. Licensee’s purchasing terms and conditions or wording on Licensee’s order confirmation if any, which may not comply with the Quote or this Agreement or Company’s General Terms, if applicable, shall not in any way supersede, modify, vary or otherwise supplement the terms of this Agreement. In case of inconsistencies and in accordance with provision of clause 1.1 herein, the provisions of this Agreement shall prevail.
12.2. Notices. All notices required hereunder shall be communicated in English or French and shall be personally delivered or sent by certified or registered mail, facsimile or reputable express courier service, addressed to the parties at their addresses communicated on the purchase order, or at such other address as either party may notify to the other as hereby required.
12.3. Force Majeure. Except for the Licensee’s payment obligations, neither party shall be held responsible or liable for any delay or failure in performance of any of its obligations in case of force majeure event. Events of force majeure” are those (i) beyond the parties control and (i) not reasonably foreseeable at the Effective Date and (iii) whose adverse effects cannot be avoided and (iv) having the effect of preventing performance of the present Agreement.
12.4. Severability. In the event any part of this Agreement (other than the provision obliging Licensee to make payment) is found to be invalid, illegal or unenforceable in any respect, the remaining provisions shall nevertheless be binding with the same effect as if the invalid, illegal or unenforceable part was originally deleted.
12.5. Transfer, Assignment & Subcontract. Unless expressly stated otherwise, neither Licensee nor Reseller shall subcontract, assign, delegate or otherwise transfer (including without limitation, by way of merger or contribution) all or part of its rights, duties, benefits nor obligations under this Agreement, or sublicense Licensed Program to any third party. This Agreement shall be binding upon, and inure to the benefit of Company and its successors and assignees. Company shall be free to assign, delegate or otherwise transfer (including without limitation, by way of merger or contribution), all of its rights or obligations herein and/or otherwise subcontract any of its obligations, in whole or in part, to any Subsidiary and/or to any third party, without Reseller’s or Licensee’s consent.
12.6. Amendments & Non-Waiver. No waiver, alteration, modification, or cancellation of any of the provisions of this Agreement shall be binding unless made in writing by all parties. Notwithstanding the foregoing, Company may add, modify or cancel any provision of this Agreement notably to the extent required by Company’s agreements with its Third Party Licensors by informing at any time via written notice Licensee and Reseller if applicable. Such additions, modifications and cancellations shall not require the separate consent of Licensee or Reseller and shall be effective immediately upon receipt of such notice.
Failure of either party to require at any time strict compliance or performance by the other party of any term, condition, covenant or provision herein shall not be deemed to be a waiver of any rights of the latter and shall in no way affect the full right of the former to require strict performance of contractual obligations at any time thereafter.
12.7. Audit. During the execution of this Agreement, Licensee shall establish and maintain accurate information records relating to the use, and when applicable, destruction of the Licensed Program, and keep such records available for a period of three (3) years after the termination of this Agreement. During this Agreement and for a period of three (3) years thereafter, the Company shall have the right at any time at its own expense and under reasonable conditions of time and place, to audit, have an access to and copy these records. Licensee hereby entitles and authorizes Company to verify its compliance with the terms of the Agreement. For such purpose, Company may conduct any audit in Licensee’s premises during normal business hours, in a manner that minimizes disruption to its business. Company may require Licensee to provide it, or any third party appointed by Company to conduct such verification, with machine access, copies of system tools outputs, or other electronic or hard copy system information as appropriate. If the audit reveals that Licensee has underpaid charges or fees due to Company, Licensee shall promptly pay to Company such due charges or fees at the applicable current price list. In the event such underpayment is equivalent or more than five percent (5%), Licensee shall consequently reimburse Company for the cost of such audit in addition to paying the applicable charges or fees. In a joint and permanent effort to prevent software piracy, Licensee shall comply with any changes made to the Licensed Program regarding licensing security mechanism aimed to prevent fraud. By invoking the rights and procedures described above, Company does not waive its rights to enforce this Agreement or to protect its intellectual property rights by any other means permitted by law.
12.8. Order of Precedence. The terms and conditions of any applicable Appendix or specific terms shall supplement the terms and conditions of this Agreement with respect to the Licensed Program. In the event of discrepancy, inconsistency or contradiction between any Appendix and conditions contained in this Agreement, the provisions of the corresponding Appendix shall prevail. In order of precedence, any eventual Appendix or specific terms to this Agreement supersedes, this Agreement and then Quote or order confirmation.
12.9. Entire Agreement. This Agreement is the complete agreement between the Parties relating to the subject matter hereof and supersedes all prior and contemporaneous proposals, agreements, understandings, representations, purchase orders and communications, whether oral or written. Licensee acknowledges that it has not relied on the future availability of functionality or product updates with respect to any Licensed Program in entering into this Agreement. The terms of this Agreement shall have no force or effect with respect to any claim based on the use of any intellectual property rights of Company outside the scope of the license expressly granted herein. Except in the case of Section “Amendments and Non Waiver” above, this Agreement may be modified only by written amendment signed by the Parties and no other act, document, usage or custom shall be deemed to amend or modify this Agreement, including but not limited to Licensee’s purchase terms and conditions which conditions are expressly not applicable.
12.10. Governing law and jurisdiction. Any dispute related to or arising out of this Agreement shall as a first step be amicably settled by the Parties. If Parties fail to reach an agreement within one (1) month, such dispute shall be referred to the competent Court of Lyon, France, to which the Parties consent to attribute exclusive jurisdiction. This Agreement shall be governed by and construed in accordance with the Laws of France without regard to any conflict of laws and excluding application of the United Nations Convention for the International Sale of Goods. The prevailing Party in any disputes arising under or related to this Agreement shall be entitled to recover its reasonable costs and attorney’s fees from the non-prevailing party.