Terms and Conditions
Copyright
All rights reserved. No part of this manual may be reproduced or transmitted, in any form or by any means, whether electronic, printed manual or otherwise, including but not limited to photocopying, recording or information storage and retrieval systems, for any purpose without prior written permission of Exail.
Disclaimer
Exail specifically disclaims all warranties, either expressed or implied, including but not limited to implied warranties about merchantability and fitness for a particular purpose with respect to this product and documentation. Exail reserves the right to revise or to make changes or improvements to this product or documentation at any time without notifying any person of such revision or improvements.
In no event shall Exail be liable for any consequential or incidental damages, including but not limited to loss of business profits or any commercial damages, arising out of the use of this product.
Trademarks
Windows is a registered trademark of Microsoft Corporation.
Google Earth is a registered trademark of Google.
Pentium is a registered trademark of Intel Corporation.
Software License Agreement
ARTICLE 1 – APPROVAL OF THE SOFTWARE LICENSE AGREEMENT
1.1. The present software license agreement (hereinafter referred to as the “Agreement”) governs the conditions of installation, of use and of implementation of the software (hereinafter referred to as the “Software”) described in the EXAIL offer (hereinafter referred to as the “Offer”) and its documentation (hereinafter referred to as the “Documentation”) purchased by the licensee (hereinafter referred to as the “Licensee”) and to which this Agreement applies. This Agreement also applies to any improved or updated version, supplements, Internet-based services and support services for the Software. Save with EXAIL’s written consent, any other terms and conditions included in the general conditions of purchase or any other documents coming from the Licensee are not applicable.
1.2. The Agreement applies in addition to EXAIL’s general terms and conditions of sale (hereinafter referred to as the “GTCS”) and the Offer. In the event of any contradictions between the terms of this Agreement, the Offer, and the GTCS, the terms of the Offer shall prevail over the terms of the Agreement, which shall prevail over the GTCS.
1.3. By clicking on the "I agree" or on any equivalent action, such as installing the Software or using the Software, the Licensee consents to be bound by this Agreement, the Offer and the GTCS. If the Licensee registers for a free trial of the Software, this Agreement will also govern that trial.
ARTICLE 2 – LICENSE CONDITIONS
2.1. From the date of approval of this Agreement as defined under article 1.3 above, EXAIL hereby grants to the Licensee a non-exclusive, not assignable and without right to sublicense (except otherwise agreed in written by EXAIL), right of the use of the Software and the Documentation for the internal needs of the Licensee on the Licensee’s devices (hereinafter referred to as the “License”). This right of use is granted for the duration of the License agreed in the Offer, save earlier termination.
2.2. As part of this Agreement, the Licensee is entitled to:
| > | Make up to two (2) copies of the Software for archival or backup purposes, provided that the Licensee strictly complies with and reproduces EXAIL proprietary marks and copyrights. |
| > | Use the Software and the Documentation according to the conditions of this Agreement and the terms of the Offer. |
2.3. The Licensee is expressly notably prohibited to:
| > | Copy the Software except as set forth in article 2.2 above, and |
| > | Modify, adapt or translate the Software and/or the Documentation. Licensee shall not reverse engineer, decompile, disassemble or otherwise attempt to modify, discover or have access to the Software source code, and |
| > | Install or operate the Software on virtual machines (except otherwise agreed in writing by EXAIL), and |
| > | Sell, rent, lease, distribute, market, sublicense, encumber, pledge, assign or transfer the rights granted under the License without the prior written consent of EXAIL, |
| > | Use the Software and/or the Documentation in any way which breaches any applicable local, national or international law; |
| > | Use the Software and/or the Documentation for any purpose that EXAIL considers is a breach of the Agreement, the Offer and/or the GTCS. |
2.4. Except otherwise notified in writing by EXAIL, installation of the Software shall be at costs and responsibility of the Licensee.
2.5. For any additional module to the Software purchased at a later stage by the Licensee or get by the Licensee as part of the maintenance and support contract subscribed by the Licensee, the terms and conditions of this Agreement shall be applied accordingly to said module. For the purpose of this clause, a “module” means a new functionality added to the Software.
ARTICLE 3 – INTELLECTUAL PROPERTY RIGHTS
3.1. All the intellectual property rights and copyrights, existing prior to the Agreement or generated within the Agreement performance, related to the Software (including but not limited to any variant, improved versions or updates) and the Documentation are and shall remain, the property of EXAIL, subject to third party’s rights. As the case maybe, said third party’s rights shall be listed within the Documentation.
3.2. The Licensee commits to protect and respect all EXAIL’s intellectual property rights and copyrights.
3.3. In the event that the Licensee provides EXAIL with suggestions, enhancement requests, recommendations, proposals, documents, or other feedback (collectively referred to as "Communications"), it is expressly agreed that EXAIL shall have a perpetual, irrevocable, transferable, sublicensable, worldwide, royalty-free license to use, modify, and distribute each Communication, without the Licensee being entitled to any compensation or rights of any kind.
3.4. EXAIL undertakes to hold the Licensee harmless in respect of any claim any third party may make against the Licensee in connection with any infringement by the Software delivered by EXAIL provided that the Licensee (a) notifies to EXAIL in writing within thirty (30) days after becoming aware of the third party’s claim, (b) grants EXAIL exclusive control over the defense and settlement of the dispute, and (c) cooperates in the defense and settlement of the dispute. Licensee may participate, at its own expense, in the defense of the dispute.
EXAIL shall not be held liable if the alleged infringement is based on: (i) the combination of the Software with any other software, (ii) use that is not in accordance with the Documentation and EXAIL’s written usage guidelines, (iii) use of any prior version of the Software when use of a new version would have avoided the infringement, (iv) any modification of the Software not performed by EXAIL, (v) any intellectual property right owned or licensed by the Licensee, excluding the Software, (vi) any claim or lawsuit by the Licensee against a third party, (vii) any open-source software, or (viii) the Licensee's continued use of the Software after EXAIL has advised discontinuation for any reason.
If the Software becomes, or in EXAIL’s opinion is likely to become, the subject of a third-party claim for infringement of intellectual property rights, EXAIL may, at its sole discretion and expense, (a) grant the Licensee the right to continue using the Software, (b) replace or modify the Software to avoid such claim, or (c) request the return of the Software, and upon receipt, terminate the related licenses. In such event, EXAIL will refund the Licensee for any prepaid but unused fees.
3.5. The Client acknowledges that Open Source software are integrated into the Software and are necessary for its operation.
Upon the Client's first written request, EXAIL shall provide the applicable licenses terms for the Open Source software. The Open Source software shall be made available in accordance with the open licenses governing each Open Source software.
ARTICLE 4 – EXPORT CONTROL
4.1. As the case may be, the delivery, installation and use of the Software may be subject to export control laws and regulations, EXAIL will inform the Licensee of the applicable restrictions.
4.2. Pursuant to the applicable export control rules, the Licensee undertakes to comply with any obligation stated by the competent authorities and shall defend, indemnify and hold EXAIL harmless as a result of any breach by the Licensee of said applicable export control rules.
4.3. The denial or withdrawal of any export license by the competent authorities shall be considered as a force majeure event which may result, as the case may be, in the termination of the Agreement in whole or in part, without EXAIL being considered liable in any manner whatsoever for damages or compensation to the Licensee.
ARTICLE 5 – PRICE AND PAYMENT OF THE LICENSE
The price and the terms of payment of the License shall be as per the conditions stipulated within the Offer accepted by the Licensee. In the event of late payment, a late payment penalty of an amount equal to three (3) times the legal interest rate in force on the due date of the corresponding invoice will be applied by operation of law by EXAIL. The Licensee will also be liable, by operation of law, to a fixed indemnity for collection costs in the amount of 40 euros per invoice unpaid on its due date.
ARTICLE 6 – WARRANTY
6.1. EXAIL warrants the Software against any malfunction and bugs for a duration of thirty (30) days upon date of delivery of the Software to the Licensee.
6.2. Under this warranty, EXAIL’s sole obligations in case of warranty claim from the Licensee are limited to remedy, at EXAIL’s costs, to any malfunction and bugs so notified by the Licensee, as soon as possible.
6.3. This warranty shall not apply and shall be void if such malfunction results from an accident, an event of force majeure, in case of non-compliance by the Licensee with the conditions of the License, the Documentation, the Offer, the GTCS and/or with any instruction given by EXAIL, in case of modification of the Software without written consent of EXAIL or in negligence or inappropriate use of the Software.
6.4. Any malfunction shall be notified without delay in writing by the Licensee to EXAIL. EXAIL shall decide at its sole discretion how to remedy to the Software’s defect at EXAIL’s costs. The warranty period shall be suspended upon notification of the defect by the Licensee and shall resume upon completion of the remedy action by EXAIL, with an extension of three (3) months applicable to the Software.
6.5. Except as provided in articles 3.4 and 6.1 and to the maximum extent permitted by applicable law, the Software, all updates, bug fixes, error corrections, and equivalents, are provided "as is" and "as available" without any warranty of any kind, express or implied, including but not limited to the implied warranties of merchantability, suitability for a particular purpose, integration, non-infringement, title, performance, and accuracy.
6.6. Notwithstanding the other provisions of this article 6, EXAIL does not guarantee that the Software will work without interruption or error or that the Software will be fit for Licensee’s purpose. It is the Licensee’s exclusive responsibility to ensure that the Software purchased is fit for the intended purpose.
ARTICLE 7 – SOFTWARE MAINTENANCE AFTER WARRANTY
Any software maintenance requested by the Licensee is subject to a separate maintenance agreement to be discussed between EXAIL and the Licensee, based on an EXAIL’s proposal.
ARTICLE 8 – FORCE MAJEURE
A force majeure event shall be governed by the applicable provisions of the GTCS.
ARTICLE 9 – TERMINATION
9.1. In case of breach by the Licensee of any provision under of this Agreement, and without this breach being remedied within a period of fifteen (15) calendar days from the date of a formal notice from EXAIL requesting the Licensee to do so, EXAIL shall be entitled to terminate immediately and without any further formality this Agreement.
Besides, the Agreement shall be terminated in full right without any legal procedure being required, immediately and automatically in case of a breach by the Licensee of the provisions of article 2.
9.2. Upon termination, the Licensee shall:
| > | Pay to EXAIL any sum contractually due, |
| > | Stop to use the Software and the Documentation and uninstall and remove the Software (and its copies) from all the computers used and/or which are under the responsibility of the Licensee, |
| > | Return to EXAIL, at the Licensee’s costs and risks, all copies of the Software made by the Licensee, with all protection keys. |
9.3. EXAIL reserves the right to make any audit under the provisions set out in article 13 of the Agreement, within the Licensee’s premises to check due compliance by the Licensee with the above provisions.
9.4. Without prejudice to the foregoing, the Agreement may be terminated by EXAIL through a thirty (30) days prior written notice sent to the Licensee.
9.5. Provisions which are intended to survive, will retain their effect after the end of the Agreement.
ARTICLE 10 – DURATION OF THE LICENSE
The Agreement shall enter into force upon approval as per article 1.3 above and for the duration provided in the Offer. It can be terminated as per article 9 above.
ARTICLE 11 – LIABILITY
11.1. The maximum aggregate liability of EXAIL, including its employees, agents, representatives and subcontractors, arising notably from the performance or non-performance of obligations, regardless of the basis of the action (contractual or tort), shall not exceed 100% of the price of the License.
11.2. EXAIL’s liability shall be excluded:
| > | With regard to the use of Software and/or Documentation by the Licensee and of the results so generated by the Software and/or the Documentation used by the Licensee. The use of the Software, the Documentation and of the results so generated shall be under sole and exclusive responsibility of the Licensee. As a consequence, the Licensee shall defend, indemnify and hold EXAIL harmless against any and all claims, actions, recourses, demands or responsibilities of any kind and from anyone which results from the use of the Software, the Documentation and for the results so generated. |
| > | With regard to the consequences, of whatever kind, resulting from a Software modification to the sole initiative of the Licensee or from the integration of the Software, without EXAIL’s consent, within a Licensee’s larger hardware or software package. As a consequence, the Licensee shall defend, indemnify and hold EXAIL harmless against any and all claims, actions, recourses, demands or responsibilities of any kind and from anyone which results from a Software modification made without EXAIL’s written consent. |
| > | For any indirect, reliance, punitive, consequential, special, exemplary or incidental damages of any kind and however caused even if company has been advised of the possibility of such loss or damage, any loss of contract, work interruption, loss of use, loss of data, loss of revenue, profit or anticipated savings, loss of goodwill or any indirect, special, incidental, consequential, exemplary or punitive damages suffered by the Licensee. |
ARTICLE 12 – INSURANCE AND PROTECTION AGAINST DAMAGE OR LOSS
12.1. It is the Licensee responsibility to subscribe and to maintain all the necessary insurances to cover any risk of theft, of damage or of loss related to the use of the Software.
12.2. Any damage to or loss of the Software for reason not covered by the warranty of article 6 shall be remedied, at EXAIL’s discretion, according to the conditions of a commercial offer issued by EXAIL upon request of the Licensee.
ARTICLE 13 – APPLICABLE LAW AND SETTLEMENT OF DISPUTES
During the term of the Agreement and for a period of one (1) year following its termination or expiration, EXAIL and its auditors may inspect the Licensee's premises to check due compliance by the Licensee with the provisions of the Agreement, the Offer and the GTCS.
The Licensee will fully cooperate and provide reasonable assistance to EXAIL and its independent auditors in connection with such verification. If EXAIL discovers that the Licensee is in default of payment and /or breaches its obligations under the Agreement and the GTCS., the Licensee will promptly pay the amount due and reimburse EXAIL for the costs of the audit procedure.
ARTICLE 14 – CONFIDENTIALITY
Each Party undertakes to keep confidential the Confidential Information sent to it by the other Party, and undertakes not to divulge it, directly or indirectly, to any third party, nor to use it other than in the context of and solely for the needs of the Agreement, nor to copy, reproduce, decompile or reverse engineer it, without the prior written consent of the other Party.
Confidential Information remains the property of the Party disclosing it. Any disclosure of Confidential Information by one Party shall not be construed as conferring on the other Party, even implicitly, any right whatsoever in respect of such information.
The Licensee acknowledges and accepts that EXAIL may: (i) exchange Confidential Information with any sub-contractor, affiliated company, partner, consultant or supplier in the context of the performance of the Agreement, (ii) communicate on the existence of the contractual relationship with the Licensee, and in particular mention the latter as a "customer reference".
These confidentiality obligations are valid for the term of the Agreement, remaining in force for a period of five (5) years from the date of termination or expiry of the Agreement.
ARTICLE 15 – MISCELLANEOUS
15.1. Intuitu Personae – Modification of the legal situation
This Agreement and all rights and obligations hereunder shall not be assigned (whether through merger or consolidation, by operation of law, or otherwise), without the written consent of the other Party and any attempt to assign without such consent shall be void.
However, no modification of EXAIL’s legal situation (such as, in particular, its transformation, its merger with other legal entities, its absorption or the transfer of its business to a third party) shall lead to the termination of this Agreement, which shall remain valid between the Licensee and the legal person which EXAIL’s rights will have been assigned to, in the same conditions as those defined in this Agreement.
15.2. Relationship between the Parties
By entering into the Agreement, the Parties declare that they do not intend to establish a partnership or any other legal entity, and that any form of "affectio societatis" as well as any sharing of profits is expressly excluded.
The Parties are independent contractors with respect to each other, and neither Party has the authority to act as an agent or employee of the other, or in any other capacity, nor has the express or implied right to bind the other Party in any manner whatsoever.
Each Party shall bear the cost of its own charges and expenses related to the tasks and responsibilities incumbent upon it under the Agreement. Each Party shall be solely responsible for all taxes, contributions, fees, and duties for which it is liable as an independent contractor, so that the other Party shall never be held liable in this respect.
15.3. Validity
If any of the provisions of the Agreement should prove to be null and void or unwritten with regard to a rule of law in force or a final court decision, it will then give way to the application of common law, without invalidating the Agreement or altering the validity of its other provisions.
15.4. Waiver
The fact that a Party does not invoke the benefit or the strict application of any provision of the Agreement shall not imply a waiver by that Party of the benefit of the said provision.
15.5. Entire agreement
The Agreement contains all the agreements entered into by the Parties concerning the subject matter of the Agreement, with the exception of any confidentiality agreements in force, and cancels and replaces all undertakings, agreements, representations, conditions, warranties or other terms exchanged or agreed between the Parties, without exception. Any amendment to the Agreement must be the subject of a written amendment signed by the Parties, failing which it will be null and void.
ARTICLE 16 – APPLICABLE LAW AND SETTLEMENT OF DISPUTES
16.1. This Agreement is governed by the laws of France.
16.2. Any dispute related to or arising from the validity, construction, execution and/or termination of the Agreement, shall be submitted to the exclusive jurisdiction of the courts of Paris.