WHEREAS:

The Publisher designs, develops and markets the software in the TopSolid® range.

The Publisher also offers a set of software-related services (hereinafter the “Services”).

TopSolid® software is a CAD, CAD/CAM ERP (modeling, production and management) solution that meets the needs of manufacturers. TopSolid® software is a standard product for the industry and is not a specific development tailored to the Customer’s needs. TopSolid® software has standard features that are especially suited to meet the needs of the various trades in the industry.

As part of its activity, the Customer is interested in the TopSolid® software set out in the Commercial Proposal (hereinafter the “Software”).

The Customer, interested in using the Software, has approached the Publisher to review its essential features and functionality. In order to enable the Customer to ensure the suitability of the Software and its features for its needs, the Publisher has provided the Customer with the documentation of the Software, has responded to the requested information and has carried out any demonstration that it may have requested. Where applicable, the Customer has tested the Software. The Customer has the necessary skills to use the Software. In this context, the Publisher sent the Customer a Commercial Proposal and communicated to the latter its contractual terms and conditions, which constituted the basis for discussions between the Parties.

In possession of the information required to make an informed decision and after ensuring its suitability for its functional needs and management/organization processes, the Customer agrees to conclude this License by signing the Commercial Proposal (including by clicking on accept or by electronic signature) and the Publisher agrees to grant it to it under the conditions defined below.

THIS BEING SAID, THE PARTIES HAVE COME TOGETHER AND AT THE END OF THEIR DISCUSSIONS, THEY HAVE AGREED AS FOLLOWS:

Article 1 - Definitions

The terms used in the Contract, and beginning with a capital letter shall have the meaning given to them below, whether in the singular or plural.

Administrator: the User(s) designated by the Customer specifically responsible for the management of license rights.

Post-Processor Application: interface that connects the Software to a Customer machine tool to transform the standard internal code of the Software into a code that the machine tool is capable of understanding and executing as defined, if applicable, in the Commercial Proposal. Unless otherwise specified in the Commercial Proposal, the contractual terms of the license for the Post-Processor Applications are the same as those applicable to the Software.

Protection Key: part of the Software, a unique virtual secret key (or activation code) issued by the Publisher, enabling the Perpetual License to be activated. It is calculated either on a delivered physical USB Dongle or on a computer ID allowing the Customer to install and operate the Software. A physical USB dongle can only be replaced when the defective physical USB Dongle is returned for destruction. A lost or stolen physical USB dongle cannot be replaced.

CLS: License management and authentication server for Users and/or Customer endpoints.

Order: the express acceptance by the Customer of the Commercial Proposal which contains all of the contractual bundle. Any Order is firm and final and does not give rise to any refund, except in exceptional cases accepted in writing by the Publisher.

Contract: has the meaning given in Article 2 - Contractual Documents.

Effective Date: the later of (x) the date on which such Software is shipped or made available to the Customer electronically or, if applicable, (y) the date on which the Customer is informed that the Protection Key may be requested or is available,

Intended Use: use for which the Customer is authorized to use the Software in accordance with the Contract corresponding to its own internal, direct, and exclusive needs.

Distributor: the Publisher or a third party authorized by the Publisher to distribute the Software, Additional Services, Training or Maintenance.

Documentation: the Software User documentation is installed at the same time as the Software and accessible from the Software home page and the Publisher Site in the Support section and is regularly updated.

Data: all Customer information, content, files and data of any kind, except Personal Data, transmitted, stored, published or generated by or processed by the implementation of the Services or the Software.

Personal Data: Data that, within the meaning of the applicable Personal Data Protection Regulation, is related to privacy or makes it possible to designate or identify, directly or indirectly, a natural person.

Intellectual Property Rights: copyright (including but not limited to rights in software works and moral rights), trade secrets, patent rights (including but not limited to rights arising from patent applications or disclosures and priority rights) processes, methodologies, rights relating to the topography of semiconductors, the rights to drawings and models, the right to distinctive signs, trademarks, logos and all other intellectual property rights recognized by French law, European Union law and international law under the treaty relating to the global organization of intellectual property and by analogy must be considered as being an intellectual property right for subjects which are not recognized as such, such as the sui-generis right on a database, or which can only be protected by a specific agreement (communication by virtue of confidentiality obligations) such as mathematical algorithms. Under the Contract, TOPSOLID is either the owner of the Intellectual Property Rights of the Software or a user approved by the holder of the rights under the Third-Party Software.

Term: The Perpetual License term for the Software (“right to use”) is unlimited, known as “perpetual.” The Software is available on the date indicated in the Commercial Proposal.

Publisher: TOPSOLID, which designs, develops and markets TopSolid software. TOPSOLID is either the Publisher or the authorized distributor of Third-Party Software.

Customer Environment: the IT environment, including software, materials, Customer’s servers, on which the Software is installed or from which the Customer accesses or uses the Software and the conditions under which the Software is run, in terms of, for example, the conditions relating to the infrastructure and telecommunications networks, internet, electricity, etc. The Customer must comply with the prerequisites indicated in the Commercial Proposal and undertakes to properly maintain or have maintained its operational environment in accordance with the prerequisites in the Commercial Proposal and then regularly communicated to the Customer by the Publisher.

Credentials: for the purposes of License protection by CLS, both the Administrator’s and Users’ own identifier (“login”) and the login password (“password”) communicated by the Publisher. Credentials are personal and confidential. The Customer undertakes to make every effort to keep its Credentials secret and to not disclose them in any form whatsoever. The Customer must ensure that Users do not share or use the same Credentials.

Perpetual License/License: the non-exclusive grant of the right to use the Software under the terms and conditions of the Contract, for the legal duration of copyright protection. The Perpetual License does not include Support and Maintenance Services provided exclusively by the Publisher or a Distributor that are the subject of a specific contract. The Commercial Proposal specifies one of the three types of Perpetual Licenses granted (Fixed Perpetual License, Floating Perpetual License, Per User Perpetual License).

Delivery: provision by the Publisher to the Customer of the download link or, if applicable, availability of the Protection Key. The Publisher reserves the right to send the Software or Post-Processor Application to the Customer, if any of the Software elements are not available for download.

Software: the TopSolid® Software in executable code(s) designated in the Commercial Proposal (ii) the related Documentation, (iii) the License Protection Key, (iv) the patches during the warranty (v) if applicable, the Post-Processor Application.

Third-Party Software: software owned by a Third-Party publisher that is integrated into the Software and subject to their own licenses. The list of Third-Party Software and the terms of use are available on the Publisher's website and are updated in real time. The Customer undertakes to comply with the terms of the Third-Party Software licenses and, as such, is solely responsible for compliance with them with regard to third party publishers and, consequently, undertakes to regularly consult the Publisher's website.

Maintenance: corrective and progressive maintenance services delivered exclusively by the Publisher or a Distributor subject to a specific contract.

Commercial Proposal: the document formalizing the technical, commercial and financial proposal relating to the Software ordered, drawn up based on the information provided and the needs expressed by the Customer and accepted by the Customer specifying, in particular, the Software and the types of Perpetual Licenses for the Software and Services ordered by the Customer. In the absence of a validity period expressly stipulated in the Commercial Proposal, it may not exceed 15 (fifteen) days, after which the Order is refused.

Regulation on the protection of Personal Data: the “Data Protection” law no. 78-17 of January 6, 1978, amended by law no. 2018-493 of June 20, 2018, the General Data Protection Regulation no. 2016/679 of April 27, 2016, as well as any law that would later supplement this system.  

Service: any provision of services defined in the Commercial Proposal made for the Customer.

Installation/deployment service: the installation services at the Customer and the configuration services prior to the use of the Software, subscribed by the Customer and defined in the Commercial Proposals.

Training Department: the training defined in the Commercial Proposal.

Site: place of assignment of the Software where it is used by Users. The Site is a license metric. Thus, Software deployed on one Site may not be moved to another site without the prior authorization of the Publisher.

Territory: location of the Site. The Territory may not be moved to another territory without the Publisher’s prior authorization.

Users: (i) Customer’s employees, (ii) any persons designated by the Administrator acting under the responsibility of the Customer, who use the Software for the Customer’s own purposes at a Site. The User is a license metric. The user will need to log in with their Credentials. A Site User may use the Software temporarily on any individual computer at any time in the Site Territory. Users are required to use the Software in accordance with its Intended Use, and in accordance with the Documentation.

Educational Use: any use by authorized users for exclusively educational, institutional, training purposes granted by the Commercial Proposal to a Customer who is an educational and/or research institution and who issues academic degrees (diplomas or certificates) at any level of primary, secondary or higher education.

Research Use: any use by authorized users for the exclusive purpose of experimental, theoretical and/or digital research, undertaken in order to acquire new knowledge until the completion of a demonstration of concept in a laboratory, granted by the Commercial Proposal to a Customer who is a non-profit entity, governed or financed at more than fifty percent (50%) by public funds and dedicated to research.

Article 2 - Contractual documents

The Contract results from the acceptance of the Commercial Proposal.

It constitutes the entirety of the commitments existing between the Parties. It supersedes and cancels any prior verbal or written commitment relating to the subject matter of the Contract and supersedes any other contract or terms and conditions relating to the use of the Software or the provision of the Services.

Unless expressly stated, the appendices have an equivalent hierarchical value between them. In the event of a contradiction, for all services, the special conditions prevail over the general conditions.

The Contract accepted may only be amended with the express written consent of the Parties.

Any Additional Order will be subject to the terms and conditions of the Contract, unless otherwise stated.

Article 3 – Purpose

The Contract defines the terms and conditions under which the Publisher provides the Software, and the Customer is authorized to use it (license). The Services, if any, are provided under specific terms. The signature of the Commercial Proposal constitutes a firm purchase order of a Perpetual License. Any modification, particularly in the event of an increase in the number of Users or any module, must be subject to an Additional Order.

Article 4 - Prerequisites and obligations of the Customer

4.1 The Customer acknowledges that (i) it has been informed of the prerequisites prior to the signing of the Contract, (ii) it is its own responsibility to ensure that the hardware and network are compliant, and (iii) it does and will take responsibility for the acquisition, operation and maintenance of the required hardware and software. The Customer shall ensure compliance by itself and by any third parties involved in the Environment with the prerequisites defined in the Commercial Proposal. The Customer shall not allow itself or any third party intervening with the Environment to carry out any operation of any kind whatsoever that is likely to have a direct or indirect impact on the Software and its Environment, unless it has obtained the prior written consent of the Publisher. The Customer undertakes to carry out routine maintenance of the Environment, according to the instructions of the builders/maintainers.

4.2 The Customer undertakes to actively and regularly cooperate with the Publisher. The Customer undertakes to inform the Publisher immediately of any difficulties that may affect the Delivery and/or use of the Software.

4.3 The Customer is solely responsible for backing up the Data.

4.4 The Customer undertakes to pay the price agreed under the License defined in the Commercial Proposal.

4.5 The Customer agrees to comply with applicable laws and regulations.

4.6 The Customer ensures compliance by all Users with the obligations to use the Perpetual License.

4.7 Unless the Publisher fails, the Customer shall refrain from using a third party not authorized by the Publisher or the Distributor to perform the Training, installation and/or configuration, support and Maintenance Services.

Article 5 – Provision of the Software

5.1 Delivery of the Software

Upon installation, the Software and its license form an inseparable whole. To activate the license and access the Software, either the Customer Administrator receives the Software Protection Key or the Credentials are provided to the Customer.The Publisher or the Distributor undertakes to make available to the Customer a copy of the Software in object code form as well as Documentation containing the instructions for use on the date defined in the Commercial Proposal.

The time for Delivery of the Software and/or the time for provision of the Services, indicated in the Commercial Proposal, is for informational purposes only and is not guaranteed in any way.

The Publisher or the Distributor is authorized to make Deliveries in aggregate or in fractions in accordance with the Commercial Proposal.

Any delay in relation to the provisional Delivery date shall not give rise to the payment of damages or the cancellation of the Order in favor of the Customer, unless Publisher specifically agrees otherwise.

The Publisher or Distributor shall send by email to the address specified by the Customer the address of a site from which the Customer may download the Software, its Documentation and its License Protection Keys. The Software shall be deemed to have been delivered upon the issue of this email by the Publisher or the Distributor. If applicable, deliveries are made according to the Incoterms Ex Works rule, unless otherwise agreed between the Parties in the Order. Consequently, the Customer is in particular liable for transport costs, customs fees and assumes the responsibility for the risks associated with transport. If applicable, the Customer undertakes to pay, upon receipt, all taxes, duties, taxes and other charges present and future, due in respect of the delivery of the Software, the Publisher's liability cannot at any time be incurred in this respect.

Delivery of the Software constitutes receipt of the Software.

Any use of the Software constitutes receipt without reservation from the Customer, and compliant delivery by the Publisher. Consequently, the Customer waives the right to invoke against the Publisher or the Distributor the termination of the Contract for breach of its compliant delivery obligation if it has started using the Software/Services.

5.2 Authentications for CLS

The User must authenticate from the TopSolid interface each time they log in. The Customer shall use the right of access alone. They can log in at any time except during maintenance periods, i.e., 24 hours a day, 7 days a week including holidays and Sundays. The access procedure is provided by the Publisher. Access is made from the Customer’s terminals and with the Credentials, via CLS. The Customer is warned of the technical hazards inherent to the Internet and the resulting interruptions in access. Consequently, the Publisher shall not be held liable for any unavailability of the CLS. The Customer is solely responsible for the use of the Credentials and is responsible for safeguarding the access codes provided to it. It shall ensure that no other person not authorized by the Publisher has access to the Software. In general, the Customer assumes responsibility for workstation security. In the event that it becomes aware of access by another person, the Customer shall inform the Publisher immediately and confirm this by registered letter.  In the event of loss or theft of Credentials, the Customer will use the procedure implemented by the Publisher allowing it to recover its Credentials.

5.3 Installation, deployment of the Software

Installation, configuration, and Maintenance services are not the subject of this License and may be subject to a specific contract. Unless specifically contracted, the Customer shall install the Software itself in accordance with the prerequisites and guidelines in the appendix, if applicable. In such an event, installation, and configuration of the Software in accordance with the instructions contained in the Documentation shall be under the sole direction, control and responsibility of the Customer. The Publisher shall not be held liable in any way for any inability, error or fault of the Customer or any third party in the installation and configuration of the Software. Any intervention by the Publisher resulting from a failure to install or comply with the prerequisites is excluded from the warranty and will give rise to additional invoicing.

Article 6 - Rights granted on the Software

6.1 In return for the payment of fees, the Publisher grants the Customer a personal, non-exclusive and non-transferable Perpetual License to use the Software as well as the Post-Processor Application, if applicable, for its own purposes only. This right of use is strictly limited to the right of representation and reproduction, with the exception of any right of modification, adaptation, arrangement, translation; the Publisher expressly reserves the right to correct the Software and the Post-Processor Application.

6.2 The Customer shall not:

•             distribute or publish the Protection Keys,

•             use a Software license to develop applications intended for use by third parties or distributed to third parties, in whole or in part, as stand-alone products, additions or components,

•             pledge, lend, assign, sublicense or distribute the Software in any manner,

•             unless otherwise expressly agreed upon by the Parties, provide, make available, lend, use on a timeshare or service bureau basis, make any other use of or permit others to use the Software for the benefit of third parties or to provide any ASP, SaaS, managed services, third-party application maintenance, marketing, training, auditing, consulting or any other commercial services corresponding to an operation of the Software for the benefit of a third party,

•             copy all or part of the Software, with the exception of one (1) inactive copy, for backup or archival purposes only, and only within the framework of the Customer’s internal IT operations in accordance with the provisions of the Intellectual Property Code, and subject to reproducing any identification of the Software, in particular, notices of ownership of intellectual property rights or any other mention of ownership of TopSolid® appearing on the Software and Documentation; The backup copy will be subject to the provisions of the Contract.

•             translate, adapt, arrange or modify the Software in any way, integrate or combine with other software any element of the Software or create composite or derivative works using such element,

•             proceed alone, or with the assistance of a third party, to correct any errors in the Software in order to make it compliant with any intended use, the Publisher reserving the exercise of this right in accordance with the provisions of the Intellectual Property Code,

•             decompile, disassemble or reverse engineer the Software or attempt to discover or reverse engineer the source code, ideas, algorithms, file formats or programming or interoperability interfaces of the Software in any manner except as provided by the Intellectual Property Code,

•             remove the identification of the Software, as well as any intellectual property rights ownership notices or any other proprietary notices of the Publisher and/or its licensors appearing on the Software and Documentation,

•             activate and use any feature or module of the Software involving the acquisition of the corresponding license to use,

•             use the Software in disregard of any applicable legal or regulatory provision.

6.3 Depending on the type of License purchased, the scope of the License is limited to (i) the number of Users and/or workstations specified in the Commercial Proposal; and (ii) installation on the server and on the Site specified in the Commercial Proposal; and (iii) any other restrictions imposed on the use of the Software.

The Commercial Proposal determines the type of License granted to the Customer namely:

the “Fixed License” assigned to one (1) User on one (1) workstation, the Protection Key being calculated either on the machine ID of the User’s workstation or on a USB Dongle entrusted to the User.

“User License” assigned to one (1) User, with the Protection Key calculated by the CLS, where the License may be used by the User on any workstation on the Site on which the User logs in.

the “Floating License” assigned for a Site, for a list of Users designated by the Administrator, and which cannot be used simultaneously by more than one User. The Customer agrees to use the Software in accordance with the terms and conditions of the Contract and is solely responsible for implementing all reasonable means of monitoring its Users’ compliance with the Contract. The Customer shall take all measures vis-à-vis the Users that would allow them to fulfill the obligations incumbent upon it under the Contract, shall ensure the proper use of the Software by the latter, and shall guarantee the Publisher against any action by them, if such actions violate the terms and conditions of the Contract. The Protection Keys, the license tokens do not on their own confer the right to use the Software independently of a Commercial Proposal.

6.4 Additional Terms for Education and/or Research Use. Unless authorized by the Commercial Proposal, the Customer undertakes not to use a License for Educational Use or Research Use, directly or indirectly.

Article 7 - Intellectual property

The License does not transfer ownership of the Software to the Customer.

The Customer undertakes not to directly or indirectly infringe the rights of the Publisher, and acknowledges that all copyrights, trademarks, company names, trade names, patents and other Intellectual Property Rights attached to or relating to the Software are and shall remain the property of the Publisher and/or any third party having granted a license right to the Publisher for the Third-Party Software.

The Customer undertakes to reproduce on any copy of the Software the copyright notices, patent marks of the Publisher. The Customer acknowledges that the methodologies and technical information contained in the Contract constitute information, know-how, or trade secrets, that are owned by the Publisher, whether or not they are marked as "confidential." The name, trademark of TopSolid® or its Group, as well as all figurative and non-figurative marks, illustrations, images and logos, appearing on the Software/Services, whether registered or not, are and will remain the property of their respective owners (hereinafter “Brand”). Any total or partial reproduction, modification or use of the Brand, for any reason and on any medium whatsoever, without the express prior agreement of the Publisher is strictly prohibited and is analyzed as an act of infringement and/or unfair or parasitic competition. The same applies to all copyrights, designs, models and patents. In general, no intellectual property rights are transferred or granted to the Customer on the means or tools used by the Publisher, whether or not the subject of specific protection (copyright, patent, trademark, etc.) or on the inventions, methods, know-how used, born or developed during the Service, or on pre-existing works belonging to the Publisher or belonging to its subcontractors.

The Customer undertakes to inform the Publisher without delay of any use of the Software that is unlawful or in violation of the terms and conditions of the Contract, of which it may be aware, and to provide the Publisher with all necessary assistance that the latter may reasonably ask it if it decides to act.

Article 8 – Guarantees

8.1 Guarantee of compliance

The Publisher guarantees that the unmodified Software used with the Third-Party Software and Hardware in accordance with the requirements, and in accordance with the Documentation and the Contract will perform substantially in accordance with the specifications set forth in the Documentation for a period of thirty (30) days following the provision of the Software, according to the terms of Article 5.

Under this guarantee, the Publisher may choose, at its sole discretion:

(i)            to correct the Software,

(ii)           replace the Software; or

(iii)          to reimburse the Customer for the price received by the Publisher for the License after its return of the Software, the Parties expressly agreeing that the granting of such reimbursement is a release of any other obligation for the Publisher.

It is noted that the Software is not software designed specifically for the Customer. Consequently, the Publisher does not guarantee to the Customer that the Software will meet all its needs. In addition, the Publisher does not guarantee that the Software will operate without error or discontinuity. It is understood that the Publisher does not guarantee that (1) the Software will operate in all the particular conditions desired by the Customer; (2) the Software will operate uninterrupted or free from any errors or anomalies; (3) any anomaly can be systematically corrected even if the Customer has subscribed to a Maintenance contract.

Under no circumstances does the guarantee referred to in this article replace Maintenance. After the 30-day period, the Customer waives the right to invoke against the Publisher or the Distributor the termination of the Contract for breach of its compliant delivery obligation whether or not it has started using the Software.

8.2 Viruses

The Publisher guarantees that the Software is free from detectable viruses, at the time of Delivery to the Customer, using market detection tools used by the Publisher; however, the Customer is required to carry out its own virus detection tests, using its internal tools, before any installation of the Software. Securing the Customer’s servers against unwanted access or against any other form of assault remains the responsibility of the Customer.

8.3 Guarantee of eviction

The Publisher guarantees the Customer against any recourse by a third party alleging that the use of the Software in accordance with the provisions of the Documentation and the Contract would infringe an intellectual property right of which said third party is the holder (hereinafter, the "Third Party"), provided that the Customer informs the Publisher of said recourse without delay, and collaborates in good faith with the Publisher in the search for a solution to the dispute. In the event that the appeal is made against TOPSOLID, TOPSOLID must notify the Customer as soon as possible. The Customer shall not settle the dispute with the Third Party alone. The Publisher shall assume, at its sole discretion, under its control and direction, the search for a possible transaction with the Third Party within the meaning of the Civil Code. In the event of the conclusion of a transaction, the amount of which would be agreed between the Publisher and the Third Party, the Publisher shall be responsible for all the amounts to be paid to the Third Party that may be borne by the Customer in respect of the transaction. If the Publisher is unable to conclude such a settlement, it will assume, under its control and direction and with the Customer’s assistance, the defense to be brought in court against the Third Party's claim. The Customer is prohibited from conducting the judicial defense of the dispute brought against it by the Third Party alone and undertakes in this respect to call on the Publisher as guarantor without delay. In the event that the Third Party’s dispute results in a final court decision having the force of res judicata in the main proceedings, resulting in a pecuniary conviction against the Customer, the Publisher will compensate the Customer for the amount of the said conviction and the resulting interest, subject to the Customer providing proof of the payment made to the Third Party.

This Publisher’s guarantee shall not apply in the event that:

(i)            the Software is combined with third-party software, hardware or equipment, where the alleged infringement results from such combination, or

(ii)           the Customer continues the infringing activity despite the signing of a settlement with the Third Party or the notification of a court decision having the force of res judicata in the main proceedings, or

(iii)          the Customer has not implemented the modifications recommended by the Publisher which would have made it possible to rule out a claim of infringement; in particular, the Customer is not using the current version, even though such use would have made it possible to rule out a claim of infringement, or

(iv)          the infringement results from the failure to strictly comply with the Documentation and the provisions of the Contract.

(v)           In the event of such a Third Party claim against the Customer and/or the Publisher, the latter may, at its sole discretion and subject to compliance with the conditions referred to above, choose:

(vi)          to attempt to obtain for the benefit of the Customer the right to continue to use the disputed element of the Software at no additional cost to it, or

(vii)         provide the Customer, at the Customer’s expense, with Software or a component of substantially similar functionality and performance, without the Customer being entitled to claim any indemnity in this respect, or

(viii)        failing to do so, to pronounce the termination of the Contract and to pay the Customer, as damages, a sum corresponding to the fee paid by the Customer for the current annual period; the granting of such reimbursement releasing the Publisher of any other obligation.

Unless otherwise provided in the Contract, the Publisher does not provide any guarantee other than those contained in this article.

Article 9 - Additional services

At the request of the Customer, the Publisher or the Distributor may provide the latter with consulting services, Training, installation and/or configuration, Maintenance and/or on-site interventions, according to the terms of the Commercial Proposal and/or a service contract separate from the Contract.

Article 10 - Financial conditions

In return for the rights granted, the Customer pays a flat fee, the amount and terms of which are indicated in the financial condition’s appendix of the Commercial Proposal. On the Effective Date, the Publisher or the Distributor shall issue the invoice according to the terms and conditions for each Country as stipulated in the Commercial Proposal. The Customer is responsible for paying any taxes. The billing address is the address of the Customer’s registered office. It is the Customer’s responsibility to provide accurate and complete billing information and to notify any changes that may occur. Deposits are non-refundable. In the event of a payment incident:

•             the Customer is considered in breach of its obligations, without a formal notice being necessary,

•             the Customer shall promptly settle,

•             the Customer is required to pay late payment interest at the rate indicated in the Commercial Proposal on the amounts remaining due,

•             in addition, the Customer is required to pay the lump sum compensation per unpaid invoice as compensation for the costs of collection,

•             in the event that the costs of collection actually incurred by the Publisher are greater than the lump sum amount, additional compensation upon presentation of supporting documents may be requested,

•             the Publisher reserves the right to suspend the performance of the Contract until all sums due (including interest and fees) are paid. The Customer shall be responsible for the suspension and recovery costs.

Article 11 – Liabilities

11.1 Liability of the Customer

The Customer is responsible for (i) the choice, the use and verification of the results obtained with the Software that it is responsible for checking regularly, (ii) compliance with the terms of the Contract by its authorized Users, (iii) any software and/or equipment used or connected to the Software, including compliance with prerequisites, (iv) the security of the Site, and (v) any damage resulting from any use of the Software that is not in accordance with the Documentation and/or the Contract and/or incorrect or incomplete information provided to the Publisher or Distributor.

It is the Customer’s responsibility to take all appropriate precautionary measures to deal with any possible malfunction of the Software resulting from its use, in particular through the implementation of certain emergency, backup and archiving measures, with a view to securing the Data.

11.2 Liability of the Parties

Each Party remains liable for direct and foreseeable damages suffered by the other Party, due to its faults, errors or omissions. Neither Party may be held liable on the basis of indirect and/or unforeseeable damage, in connection with the Contract. As such, the liability of the Parties may not be implemented for financial or commercial damage resulting from lost earnings, loss of turnover or profits or revenue, loss of customers, loss resulting from damage to the image or reputation.

11.3 Liability of the Publisher

The Publisher can therefore only be held liable in the event of proven fault. Only direct and foreseeable damage resulting from a breach by the Publisher of its contractual obligations may give rise to compensation. Under no circumstances shall the Publisher be liable for any indirect and/or unforeseeable damage resulting, on any basis whatsoever, from the Contract, the Software or its use, including and without this list being exhaustive, any alteration or corruption of data, any damage to the image, and any loss of data, activity, turnover, profit, order, customers or opportunity.

The Publisher’s overall liability, regardless of the basis, for any damage, combined, cannot in any case exceed the amount of the fee excluding taxes received by the Publisher under the Contract. The Customer acknowledges that the limitation is not derisory because it is proportionate to the risks and risks of use.

This limitation of liability clause constitutes a determining condition of the Publisher’s commitment and will remain in force, even in the event of termination of the Contract. For all intents and purposes, it is specified that this limitation of liability clause does not apply to the obligation of compensation in the event of death or personal injury, or in the event of fraud or gross negligence. Any action against the Publisher is time-barred twenty-four (24) months from the event giving rise to the damage in question.

Article 12 – Insurance

The Publisher or the Distributor has taken out the necessary insurance to cover the risks related to the exercise of its activity. It undertakes to provide any supporting documentation to the Customer, if the latter expressly requests it to do so. The Customer is itself covered by insurance.

Article 13 – Rights of the Publisher

13.1 Safety mechanisms

The Publisher takes legal technical measures to limit the unauthorized use of the Software. The Software may include a security mechanism capable of detecting the installation or use of illegal copies, and capable of collecting and transmitting information regarding only illegal copies. By using the Software, the Customer consents to such detection and collection of information, and transmission if an illegal copy is detected. The Publisher also reserves the right to use a locking device to control access to and use of the Software. Customer may not take any action to alter, circumvent or disable such actions. Use of the Software without hardware locks, CLS and/or License Protection Key provided by Publisher is prohibited.

13.2 Audit of Software Licenses

The Customer agrees to accurately follow the following directions, as applicable, indicating where each copy of the Software is located, the references and location of any workstation on which the Software is installed, the references and location of the server(s) and the server(s) on which the Software is installed.

The Customer undertakes to allow the Publisher to inspect annually the Site where the Software is installed, during office hours and with ten (10) days’ notice, with the aim of ensuring that the Customer is using the Software in accordance with the stipulations of the Contract. The Publisher may appoint a non-competitive inspector of the Customer; it being understood that the controller is required to sign a confidentiality agreement with the Customer. As part of the inspection, the Publisher or the controller may have access to all the elements necessary and/or useful for the proper performance of its mission. The Customer undertakes to cooperate in good faith in the performance of the inspection, by facilitating access and providing any relevant information to the Publisher or the controller as appropriate.  The Publisher shall make its best efforts to ensure that the performance of the inspection does not disrupt the Customer’s activity and is conducted in compliance with regulations, best practices and rules of usage in this area. The Customer undertakes to make its best efforts to collaborate fairly with the controller. In the event that the inspection reveals a use of the Software that is not in accordance with the Contract, the Customer shall exclusively bear the costs of carrying out the inspection and shall regularize the situation as soon as possible, at its own expense and in application of the Publisher's rate in force, and without prejudice to any other right or remedy that the Publisher may avail itself of.  In the event that the Publisher discovers during such checks any use of the Software contrary to the terms of the Contract, the Customer must immediately cease such use upon receipt of a written notice instructing it to comply with the terms of the license, and to immediately subscribe, if necessary, to additional licenses so that the number of licenses used corresponds to the number of licenses subscribed.

Article 14 - Distributor

For any Commercial Proposal that the Customer obtains through a Distributor, the Customer agrees that the Distributor shall be responsible for the Delivery of the Software, pricing, payment collection, Maintenance, Training, any Additional Services, which the Customer accepts. The Publisher remains independent of the Distributor and is not responsible for the Distributor’s actions or omissions.

Article 15 - Confidentiality

The Parties undertake to preserve the confidential nature of any document and any information of any nature whatsoever (economic, technical, commercial, legal, financial), transmitted during the performance of the Contract, bearing a statement indicating their confidential nature.

However, the obligation of confidentiality does not apply to information that (i) is publicly available (ii) is obtained from third parties without being subject to an obligation of confidentiality; (iii) is known to the Party receiving the information (or a company within its group), or (iv) is generally known or readily verifiable by third parties with ordinary skills in IT, program design, programming or in the activities of the Parties. Each of the Parties reserves the right to communicate to its employees, agents, subcontractors or partners any information relating to the other Party that has not fallen into the public domain, where such communication is necessary or desirable for the performance of the contractual obligations, it being understood that the Party disclosing such information will bring to the attention of the aforementioned persons the confidential nature of such information. Each Party undertakes to protect confidential information for a period of two years from the date of its disclosure, unless otherwise required by law or information becomes available to the public

Article 16 – Protection of Personal Data

As part of their contractual relationships, the Parties undertake to comply with the Personal Data Protection Regulations in force applicable to the processing of Personal Data.

Any information transmitted during the negotiation or implementation of the Contract or the provision of the software solution that contains, in any capacity whatsoever, elements recognized by law or case law as Personal Data may only be used for the purposes explicitly provided for during its communication.

As the case may be, the Publisher acts as a data controller or at the Customer’s request as a processor. The Publisher undertakes to:

•             process Personal Data only within the context of its administrative and commercial management (customer management, invoicing). The Personal Data processed: last name, first name, telephone number, work email and address, login and timestamp of connections. The data-processing time is limited to the contractual prescription.

•             guarantee the confidentiality of the Personal Data processed under the Contract,

•             ensure that the persons authorized to process the Personal Data in accordance with the Contract:

(i)            undertake to respect confidentiality or are subject to an appropriate legal obligation of confidentiality,

(ii)           receive the necessary training in the protection of personal data.

The Customer may send its requests for access, rectification, deletion and opposition rights, as well as limits to processing to the Publisher by email to privazcy@topsolid.com. The response will be sent within fifteen (15) business days.

If necessary, when a security breach causes a loss of Personal Data likely to result in a high risk to the rights and freedoms of a natural person, the Publisher or the Distributor shall notify the data subjects of any breach of Personal Data.

In the event that the Publisher acts as a subcontractor on behalf of the Customer within the meaning of the GDPR, it undertakes, in addition to its confidentiality obligations provided for herein, to:

(i)            use the Personal Data exclusively for the purposes and for the duration of the provision of the Software in accordance with the instructions of the Customer-processor,

(ii)           take appropriate technical and organizational measures to maintain the confidentiality and security of Personal Data.

In this context, the Customer undertakes to subcontract to the Publisher only the Personal Data strictly necessary as part of the Service.

Article 17 – Term

The Contract begins on the date of the last signature by the Parties of the Contract.

The License is granted for an unlimited period of time, unless terminated early due to breach of contract (e.g., failure to pay). It is specified that, if applicable, the non-renewal, expiry of the term or termination of the Maintenance Services has no effect on the validity of the License.

Article 18 - Termination

18.1 Termination for breach

Either Party may terminate the Contract automatically, if the other Party fails to remedy a breach of one of its obligations under the Contract, within thirty (30) days of receipt by the defaulting Party of a formal notice by registered letter requiring that the said breach be terminated.

18.2 Effects of termination of the Contract

On the effective date of the end of the License for any reason whatsoever, the Customer undertakes to:

(i)            immediately cease using the Software in any manner,

(ii)           return or destroy any copies of the Software, including the Documentation and any Confidential Information and any copies thereof,

(iii)          confirm as soon as possible in writing to the Publisher that it has complied with the obligations listed above.

The provisions of the articles intended to survive the expiry of the Contract shall survive the expiry or termination of the Contract, regardless of the cause thereof and shall retain their effect for a period of at least five (5) years from the effective date of expiry or termination

Article 19 - Force majeure

Force majeure is defined as any event beyond the control of one of the Parties, which is both unforeseeable and unavoidable, and which is recognized as such by the jurisprudence of the French courts. Force majeure temporarily suspends the performance of the Contract. The Party invoking a case of force majeure must, under penalty of not being able to invoke such a case, inform the other Party within 72 hours of the occurrence of the event, justifying its unforeseeable, unavoidable nature that is beyond its control, making it impossible to comply with its obligations, by indicating the provisions made or that it considers necessary to take when it is impossible to do so on its own, as well as the foreseeable duration of the case of force majeure. In all cases, the impeded Party must do everything in its power to limit the duration and effects of the force majeure. Throughout the duration of the event, the Customer is authorized to use any alternative solution essential for the performance of the services. At the end of the event, the terms of the Contract will be redefined between the Parties. If the impediment is final, the Contract is automatically terminated, and the Parties are released from their obligations under the conditions provided for in Articles 1351 and 1351-1 of the Civil Code. In the event of an extension of the event beyond a period of one (1) month, either Party may terminate the Contract by registered letter.

Article 20 - Non-solicitation

The Customer is prohibited from soliciting, drafting, proposing employment, hiring or having work performed directly or indirectly by an employee or agent of the Publisher without the prior written consent of the latter, even if the initial request is made by the employee him or herself. This prohibition applies throughout the term of the Contract and twelve (12) months following the termination of the Contract for any reason whatsoever. Any violation of these prohibitions will automatically result in the payment by the Customer of compensation equal to twelve (12) times the last gross monthly salary of the employee hired under these conditions.

Article 21 - Assignment - Subcontracting

The Customer hereby accepts any assignment, subrogation, substitution or other form of transmission of the Contract (including by means of a change of majority in the capital or voting rights, merger, demerger, absorption, transfer of shares, contribution in company, etc.) to a third party, whether the assignment is partial or total, free of charge or against payment, in compliance with the law and provided that the Publisher has ensured that this third party ensures the continuity of the Contract. The Contract may not under any circumstances be the subject of a total or partial assignment, against payment or free of charge, on the part of the Customer, without the express prior written authorization of the Publisher. The Customer authorizes the Publisher or the Distributor to subcontract all or part of the Services. In any event, the Publisher or the Distributor remains solely responsible for the perfect performance of the Contract.

Article 22 - General provisions

Evidence agreement. In addition to the legal provisions recognizing the probative value of digital writing, the Parties acknowledge the validity and probative force of the emails, text messages, and notifications made by the Parties and scanned documents exchanged between them as part of the Contract, as well as all computer and electronic elements established and/or kept by the Publisher during the performance of the Contract, in particular via its ticketing tool and its “counting” solution of licenses, if applicable. In the event of a contradiction, only said elements established and/or kept by the Publisher shall prevail over those produced by the Customer.

Non-waiver. The fact that the Publisher does not invoke any provision of the Contract at any given time cannot be interpreted as a waiver to invoke any of these conditions at a later date.

Interpretation. In the event of doubt about the interpretation of a clause or in the absence of a reference to determine the extent of the Publisher's obligations, the Customer acknowledges that the Publisher’s obligations are understood as obligations of means.

Partial nullity. The possible cancellation of one of the clauses or paragraphs appearing in the Contract, in particular by a court decision, shall not affect the other provisions that will continue to have full effect. The Parties nevertheless agree that in such a case, they will negotiate in good faith and for a reasonable period of time the replacement provisions which will be (i) valid, enforceable and opposable and (ii) compliant with the Parties’ original intention.

Language. Only the French version shall prevail between the Parties; it is the only enforceable version, which the Customer expressly acknowledges and accepts, regardless of its nationality.

Powers. The person signing the Contract warrants that he/she has all authority to enter into the Contract in the name and on behalf of his/her company or institution. Failing this, the theory of the apparent mandate will apply, in favor of the Publisher.

Entire agreement clause. The Parties acknowledge that the Contract and all its appendices and/or amendments constitute the entire agreement between them relating to the subject matter of the Contract and take precedence over all previous commitments, verbal and/or written, made between the Parties, relating to the subject matter hereof. Customer’s purchasing terms and conditions shall not in any way supersede, supplement or otherwise modify the terms of this Contract.

Election of domicile. The Parties elect domicile at the addresses appearing at the top of this document to which notifications must be sent, except in the event of a change of address, which must be notified to the other parties as soon as possible. In the event of a change of address, any notification made to the addresses mentioned in the deed or to the last address that was the subject of a notification shall be deemed valid, unless it was proven that the Party making the notification was aware of the effective address of the party to whom it is sending its notification.

Independence. The Parties acknowledge that they are acting as independent co-contractors. The Contract cannot have the effect of creating a company or association of any form between them.

Commercial reference. The Customer hereby expressly authorizes the Publisher to mention, as a commercial reference, the existence and purpose of the Contract as part of its commercial documents (paper and electronic, e.g., websites, email, etc.) distributed, in particular, to its customers and prospects

Article 23 – Export

Export to Customer of Software and Documentation is subject to all applicable countries’ export and re-export laws and regulations. The Publisher or the Distributor shall have no liability towards Customer if necessary, authorizations, licenses or approvals are not obtained. Customer shall not export or re-export, either directly or indirectly, Software when such export or re-export requires an export license or other governmental approval without first obtaining such license or approval.

Customer hereby warrants TOPSOLID that all Software ordered hereunder shall not be used in violation of any applicable export laws, including for proliferation of any nuclear, chemical or biological weapons or missile delivery systems and shall not be diverted to any country, company or individual if prohibited by the applicable export laws of any country. Customer recognizes that Customer Data may be transferred to or stored in any country. Customer undertakes to abstain from, and shall ensure all users abstain from, processing, storing or uploading on its data sharing environment any information or data, the export of which is controlled, regulated or subject to any permit or license under any applicable law or regulation. Customer shall be deemed to be the exporter of Customer Data. TOPSOLID may terminate this Contract if Customer violates these provisions.

Article 24 – Settlement agreement – Applicable law and territorial jurisdiction

The Contract is subject to French law.

The provisions of the United Nations Convention on the International Sale of Goods are expressly excluded.

IN THE EVENT OF A DISPUTE ON THE INTERPRETATION, PERFORMANCE OR VALIDITY OF THIS CONTRACT, THE PARTIES WILL ENDEAVOR TO AMICABLY RESOLVE ANY DISPUTE THAT MAY ARISE BETWEEN THEM, WITH A VIEW TO FINDING A SOLUTION TOGETHER, THE PARTIES AGREE TO MEET WITHIN FIVE BUSINESS DAYS OF RECEIPT OF A REGISTERED LETTER SENT BY ONE OF THE TWO PARTIES. IF AT THE END OF A NEW TEN-BUSINESS DAY PERIOD THE PARTIES ARE UNABLE TO AGREE ON A COMPROMISE OR SOLUTION, THE DISPUTE WOULD THEN BE SUBMITTED TO THE COMPETENT COURT OF THE PUBLISHER'S REGISTERED OFFICE, NOTWITHSTANDING A PLURALITY OF DEFENDANTS OR CALL FOR GUARANTEE INCLUDING FOR EMERGENCY PROCEEDINGS, PROTECTIVE PROCEEDINGS, APPEAL PROCEEDINGS OR PROCEEDINGS ON PETITION.