SAAS [Software As A Service] SOFTWARE SERVICE CONTRACT
Thank you for signing up for a subscription with REEPORT UPTILAB SAS (“REEPORT”, “UPTILAB”, “we” or “us") - identification No. 520 806 183 Paris RCS - VAT No. FR 82 520 806 183 - registered office 8 rue Bayen 75017 Paris (hereinafter "UPTILAB"). By placing an order, clicking to accept this Agreement, or using or accessing any UPTILAB Service or related services, you agree to all the terms and conditions of this Terms of Service Agreement (“Agreement”). If you are using a REEPORT Service or related services on behalf of a company or other entity, then “Client” or “you” means that entity, and you are binding that entity to this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement and that, if the Client is an entity, this Agreement and each Order Form is entered into by an employee or agent with all necessary authority to bind that entity to this Agreement. This Agreement includes any Order Forms and Service-Specific Terms (as defined below) as well as any policies or exhibits accepted by You.
GENERAL TERMS AND CONDITIONS
1.1 UPTILAB designed and developed an original, standard and customizable software application called "Reeport" (the "Software"), accessible on-line as Saas (Software as a Service), which allows a professional ("You" or the "CLIENT") in particular to optimize its data management by processing the data collected from internal CLIENT databases and various service providers (Google, Facebook, YouTube, etc.) to which the CLIENT subscribes. The Software makes it possible to provide a detailed analysis of the data to the CLIENT, based on the options selected in the Purchase Order, in order to fine-tune its knowledge.
1.2 The CLIENT wishes to be able to use the Software and, in general, to benefit from the services offered by UPTILAB and specified in the Purchase Order.
1.3 In accordance with the obligation to negotiate in good faith (Art. 1104 [new] Civil Code), the CLIENT declares that, prior to the signing of the Contract:
(i) the CLIENT has performed an accurate written analysis of its needs;
(ii) UPTILAB has provided to the CLIENT, specifically in the General Terms and Conditions, the details of the explicit essential attributes of the service (the "Service") proposed by UPTILAB (Art. 1133 [new] Civil Code) in particular to enable the CLIENT to assess the adequacy of the Service for its needs;
(iii) accordingly, the CLIENT acknowledges it has received from UPTILAB all the crucial information for its consent, providing a direct and necessary link between the content and the essential attributes of the Service or UPTILAB's qualities (Art. 1112-1 [new] Civil Code).
1.4 UPTILAB reminds the CLIENT (i) that UPTILAB's duty to inform does not extend to an estimation of the value of the Service (Art. 1112-1 [new] Civil Code) that UPTILAB agrees to provide to the CLIENT and (ii) that any inaccurate economic assessment of the Service by the CLIENT, prior to signing the Contract, do not constitute grounds to nullify the Contract entered into (Art. 1136 [new] Civil Code).
1.5 UPTILAB draws the CLIENT's attention to the fact that the Service offered by UPTILAB is a standard service designed for companies of varying sizes operating in various business sectors. It is therefore up to the CLIENT, prior to signing the Contract (i) to verify that the Service meets its needs and (ii) to ensure that the extent of the Service is such that it would be able to fulfill its own business objectives, which UPTILAB would not be familiar with nor aware of.
The parties have therefore agreed as follows.
2.0 In addition to the terms defined as and where needed in the Contract, the terms with an initial capital letter have, in the Contract, the meaning assigned to them below.
Refers to the person chosen by the CLIENT who is by default the CLIENT's main point of contact and who is responsible for the implementation of the Service in the CLIENT's business. The Administrator is the central point of communication between the CLIENT and UPTILAB regarding the operational aspects of the Service to the extent determined in the clause "Duty to inform and obligation to collaborate".
Refers to all of the stipulations signed by the CLIENT and included in the (i) Purchase Order and (ii) the General Terms and Conditions as well as any amendment that may supplement, modify or replace them, it being specified that the introduction and the appendices shall form an integral part of the contract. Should there be a contradiction between the terms in the Purchase Order and those stated under the General Terms and Conditions, the provisions of the Purchase Order shall prevail (Art. 1119 par. 3 [new] Civil Code). The parties acknowledge that the Contract is bilateral (Art. 1106 [new] Civil Code), that the service is provided against payment (Art. 1107 [new] Civil Code] and with successive execution (Art. 1111-1 [new] Civil Code).
Refers to any Service malfunctions specifically related to a problem affecting the Software. "Blocking" is deemed to be a Bug that completely prevents the CLIENT form using the Software. "Major" is deemed to be a Bug that substantially degrades or restricts the performance and/or one or more major features of the Software.
Refers to all documents, information or Data (including personal Data), and in general all of the CLIENT's digital content processed by the Service.
Refers to UPTILAB's software "Reeport", installed on the Platform, whose main features, the various modules which make up the software and the options selected by the CLIENT are detailed in the Purchase Order. The Software can only be accessed remotely, by connecting Users to the Platform.
Refers to the Software's corrective maintenance service and assistance/user support service. The cost of this service is included in the Subscription fee. UPTILAB's obligations regarding Maintenance are restrictively defined in the clause "Maintenance/Assistance/Support".
Refers to all the hardware and software of the hosting data center on which the Software is installed and from which the Service is provided to the CLIENT. The service provider operating the Platform as an UPTILAB sub-contractor is identified in the Purchase Order.
Refers to the amount payable by the CLIENT to UPTILAB as compensation for the use of the Service, excluding additional services identified as such in the Purchase Order. The Subscription fee is billable and payable under the terms and conditions set out in the Purchase Order.
Refers to the CLIENT's right, for the Contract term specified in the Purchase Order (and for the duration of any early extension, renewal or automatic renewal of the Contract), (i) to use the Software installed on the Platform, (ii) the services associated with Software hosting on the Platform described in the clause "Maintenance/Assistance/Support" and (iii) the services related to Maintenance of Software and the Platform described in section "Maintenance/Assistance/Support". The Service allows processing of the CLIENT Data in real time as soon as the Data is transmitted (i) directly by the CLIENT to the Platform or (ii) indirectly by the data service providers subscribed to by the CLIENT and that are restrictively defined in the Purchase Order. No storage or back-up of any CLIENT Data will take place on the Platform. The services included in the Service form an (i) indivisible whole for UPTILAB, and (ii) are of a quality in accordance with the legitimate expectations of the parties, in consideration of its nature, the use and the amount paid in compensation set out in the clause "Financial terms and conditions" (Art. 1166 of the [new] Civil Code).
Refers to any natural person (employee, service provider or CLIENT representative,) authorized by the CLIENT to use the Service either in "read" or "edit" mode, for the CLIENT's internal business purposes. Service access control is provided by the CLIENT through the Software. Only the CLIENT determines the awarding of rights and authorizations to each User under its responsibility.
3.1 The purpose of the Contract is to define the terms and conditions under which UPTILAB, through the use of the Software, provides the Service to the CLIENT in return for payment of the Subscription fee set in the Purchase Order. The use of the Service is granted to the CLIENT, solely for the Data which it collects or which are collected from the providers identified in the Purchase Order, only for the benefit of its Users, and only for company purposes, and not to process third party data or for the benefit of third parties.
3.2 The list of services which make up the Service detailed in the clause "Service", the service levels described in the clause "Service Availability" and the list of Software features selected by the CLIENT and defined in the Purchase Order:
(i) together explicitly and exhaustively describe the essential attributes of the Service provided by UPTILAB (Art. 1133 [new] Civil Code), and with regard to which both parties decided to enter into a contract, excluding any implied features that the CLIENT may expect and which UPTILAB cannot be aware of, and
(ii) provide the features of UPTILAB's Service that meet the CLIENT's and UPTILAB's legitimate expectations, taking into account the nature of the services that together and indivisibly constitute UPTILAB's Service, the functions and the amount of compensation that the CLIENT agrees to pay to UPTILAB to use the Service (Art. 1166 [new] Civil Code).
3.3 At the CLIENT's request, UPTILAB might perform additional services (advice, support, configuration, training, etc.), other than those explicitly included in the Service. Any additional services to be performed by UPTILAB is subject to a quotation from UPTILAB and the written and express acceptance from the CLIENT before being carried out by UPTILAB. These services are billed separately, in addition to the Subscription fee.
4.1 The Service includes the right to the non-exclusive and non-transferable use of the Software only for the duration of the Contract defined in the Purchase Order, and may not be sub-licensed, assigned, transferred or made available to a third party, free of charge or against payment, by any practical or legal means whatsoever. The Service and the Software may be used:
(i) only by remote access on the Platform identified in the Purchase Order, in compliance with the rules of identification and assignment of the CLIENT's rights who alone decides which Users it authorizes to use the Service;
(ii) only for the processing of CLIENT Data, under the restrictive terms and conditions set out in the Contract.
4.3 The User's login details to connect to the Service are private and confidential. It is assigned by the CLIENT under its own responsibility. It may only be changed by the CLIENT, or at UPTILAB's initiative provided that the CLIENT is informed in advance. The CLIENT agrees to take all the necessary measures to keep the User login details secret and not to disclose it in any form whatsoever. The CLIENT is solely responsible for the use of the login details which it alone manages through the Software back office accessible on-line. In general, the CLIENT accepts responsibility for the physical and logical security of the individual terminals to access the Service. In the event that the CLIENT becomes aware that an unauthorized person has gained access to the Service, the CLIENT agrees to inform UPTILAB immediately. In the event of loss or theft of one of the login details, the CLIENT shall use the procedure set up by UPTILAB, accessible through the Software back office, allowing him to recover the login details or create new ones.
4.4 For the Contract term and twenty-four (24) months thereafter, the CLIENT shall refrain from developing and/or marketing software or a service for the benefit of third parties which directly competes with the Software and/or the Service. This non-competition commitment on the part of the CLIENT constitutes (i) a crucial element (Art. 1112-1 [new] Civil Code) for UPTILAB's agreement to contract with the CLIENT and/or (ii) an explicit essential aspect (Art. 1133 [new] Civil Code) of the service expected by the CLIENT from UPTILAB. The CLIENT acknowledges that non-compliance on its part with its commitment to non-competition may create extremely serious and manifestly unlawful problems for UPTILAB, that would jeopardize the economic viability and profitability of UPTILAB's business; non-compliance with which is likely to render the Contract invalid (Art. 1137 [new] Civil Code).
5.1.1 The Contract is established and takes effect upon receipt by UPTILAB of the CLIENT's acceptance under the exact terms of UPTILAB's offer (Art. 1118 [new] Civil Code), constituted by the entire document signed by the CLIENT and which encompasses (i) the General Terms and Conditions and (ii) the Purchase Order (the "Contract"). UPTILAB reserves the right to suspend its services at any time as long as the Contract is not in fact signed by the CLIENT. Therefore, in the absence of a Contract duly signed by the CLIENT, any commencement of service delivery by UPTILAB shall not serve as a manifestation of the will to establish a contract within the meaning of Article 1103 [new] Civil Code.
5.1.2 The Service is concluded for the firm and fixed term (Art. 1212 [new] Civil Code) (the "Initial Term") as from the date of using the Service set out in the Purchase Order. Therefore, no termination on the part of the CLIENT "for convenience" is possible during the Initial Term.
5.1.3 If the CLIENT does not wish the Contract to be renewed (Art. 1214 [new] Civil Code] or tacitly renewed (Art. 1215 [new] Civil Code) at the end of the Initial Term, it is the CLIENT's responsibility to completely stop using the Service at the end of the Initial Term.
5.2.1 At the end of the Initial Term set in the Purchase Order, if the CLIENT continues to use the Service and UPTILAB does not notify the CLIENT of the new Subscription fee amount:
(i) the parties either agree to enter into an Amendment (clause) before the expiry date of the Initial Term, or retroactively, in which case the Contract is extended (Art. 1213 [new] of the Civil Code) under the pricing and fixed-term conditions set out in the Extension Amendment;
(ii) or the Contract is tacitly renewed (Art. 1215 [new] Civil Code) with identical contents for an indefinite period, the CLIENT agrees to pay the Subscription fee amount which is then payable quarterly, in advance, and any quarter already in progress shall be due, a pro rata of the Subscription fee amount for the quarter indicated in the Purchase Order governing the Initial Term. The Subscription fee is then payable until the effective date of termination.
5.2.2 If the Contract has been tacitly renewed (Art. 1215 [new] of the Civil Code), either party may give notice of termination at any time, subject to a minimum notice period of ninety (90) days.
5.3.1 If UPTILAB notifies the CLIENT of the new Subscription fee amount applicable after the Initial Term:
(i) the parties either agree to enter into an Amendment (clause) before the Initial Term expires, or retroactively, in which case the Contract is extended (Art. 1213 [new] Civil Code) under the conditions regarding price and duration determined in the extension Amendment;
(ii) or the Contract is renewed for an indefinite period (Art. 1214 [new] Civil Code) and the CLIENT therefore agrees to pay the Subscription fee amount quarterly, in advance, and the Subscription fee for any quarter that has already begun shall be due. The Subscription fee is then payable until the effective date of termination. If the CLIENT feels that UPTILAB has not justified an increase in the Subscription fee and that UPTILAB is abusing its right to unilaterally set the new Subscription fee amount, it is the CLIENT's responsibility to apply either Article 1164 [new] Civil Code, or Article 1165 [new] Civil Code.
5.3.2 If the Contract was renewed (Art. 1214 [new] Civil Code) for an indefinite period, either party may give notice of termination at any time, subject to prior notice (Art. 1211 [new] Civil Code) of a minimum period of ninety (90) days.
6.1 As from the date of use of the Service and for the duration of the Contract term set out in the Purchase Order, UPTILAB undertakes to ensure the availability of the Service 24 hours a day, 365 days a year in as far as it is possible. The nature of this commitment to Service availability is a feature of UPTILAB's service which conforms to the legitimate expectations of the parties (Art. 1166 [new] Civil Code) given the nature, the usage and the amount in compensation which the CLIENT agrees to pay UPTILAB to use the Service.
6.2 Service availability "delivered from Platform" is assured. By express agreement, Service availability does not take into account (i) any interruptions in the functioning of the Internet for which UPTILAB can in no way be responsible, or (ii) any scheduled Software or Platform maintenance operations of which UPTILAB shall inform the CLIENT with at least three (3) days' notice, or (iii) any delays or CLIENT Data transmission problems caused by the service providers which the CLIENT subscribes to.
6.3 UPTILAB reminds the CLIENT that the provision of a connection between the Platform and the CLIENT's computer system is not included in the Service and that it is up to the CLIENT to have a connection to a communication network in order to receive and transmit Data from the Platform.
6.5 UPTILAB REMINDS THE CLIENT THAT THE INTERNET, WHICH ENABLES UPTILAB TO PROVIDE THE SERVICE, IS AN OPEN AND INFORMAL NETWORK, ESTABLISHED THROUGH THE INTERNATIONAL INTERCONNECTION OF COMPUTER NETWORKS USING THE TCP/IP PROTOCOL, WITHOUT ANY OBLIGATION CONCERNING THE SUPPLY OR THE QUALITY OF THE SUPPLY BETWEEN OPERATORS OF THESE NETWORKS. CONSEQUENTLY, UPTILAB CANNOT GUARANTEE THE AVAILABILITY OF THE SERVICE WHICH DEPENDS ON THE FUNCTIONING OF THE INTERNET, OR THAT THE USE OF THE SERVICE WILL BE UNINTERRUPTED.
7.1 As soon as the contract is signed, each party agrees to execute the Contract in good faith (Art. 1104 [new] Civil Code), in particular by cooperating with the other party in the execution of the services it is responsible for, for example by providing to the other party all the documents, details and information necessary or requested, to enable UPTILAB to provide the Service under the terms of the Contract.
7.2 Each party agrees to appoint a principal contact person (who may be the CLIENT's Administrator) who is responsible for the operational monitoring of the fulfillment of the Contract with the other party. This contact person must have the experience, competence, authority and means necessary to carry out his mission.
7.3 The CLIENT acknowledges having been informed by UPTILAB that the implementation and the correct use of the Service is likely to depend on the CLIENT's ability to train its Users in the use of the Service and in the analysis of the resulting statistics, and possibly to adapt some of its internal organizational and/or operational processes.
8.1.1 The amount and terms of payment of the implementation fee and the Subscription fee (as well as any other amounts owed by the CLIENT in respect of the additional services) are detailed in the Purchase Order and are expressed net of tax. The CLIENT is solely responsible for payment of the Subscription fee and the settlement of any taxes and/or duties in respect of the fulfillment of the Contract. Unless otherwise specified in the Purchase Order and in general terms, UPTILAB's invoices are payable in advance, within thirty (30) days maximum from the date of invoice.
8.1.2 The Subscription fee represents the compensation that the CLIENT agrees to pay to UPTILAB to receive the Service. The CLIENT acknowledges that the Subscription fee fee was negotiated during the process of establishing the Contract and was not unilaterally set by UPTILAB without the CLIENT's consent (Art. 1164 and 1165 [new] Civil Code). By mutual agreement of the parties, the amount of the Subscription fee has been determined by balancing (i) the number of services included in the Service; (ii) the essential and explicit attributes of the Service (Art. 1133 [new] Civil Code), (iii) the attributes of the Service in accordance with the legitimate expectations of the CLIENT and UPTILAB (Art. 1166 [new] Civil Code).
8.2.1 The CLIENT's adherence to Subscription fee payment deadlines constitutes an explicit essential attribute of the CLIENT's performance expected by UPTILAB (Art. 1133 [new] Civil Code). Any late payment by the CLIENT exceeding thirty (30) days after the contractually agreed deadline and after a reminder by email from UPTILAB to the CLIENT, is deemed to constitute a sufficiently serious default on the part of the CLIENT (Art. 1219 [new] Civil Code) to entitle UPTILAB to immediately suspend Service delivery, with simultaneous notification of the CLIENT by UPTILAB, without further notice or formality of any kind.
8.2.2 In accordance with Article L. 441-6 of the Commercial Code, in the event of non-payment of all or part of the Subscription fee (or any other amount owed by the CLIENT under the Contract) within the contractual deadlines, (i) any unpaid amount will automatically generate daily interest until the date of full payment of principal, interest, charges and related expenses, at a rate equal to FIVE (5) times the legal interest rate, without a reminder being necessary and without prejudice to the damages that UPTILAB reserves the right to pursue legally; (ii) in accordance with Article L. 441-6 of the Commercial Code, a "lump sum indemnity for collection costs" the amount of which is set in Article D.441-5 of the Commercial Code, will be automatically due for each invoice concerned. Pursuant to Article L. 441-6 of the Commercial Code, the recovery costs, documented on the invoice, the amounts owed by the CLIENT (costs of proceedings, expenses, disbursements and attorney and bailiff fees) are deemed to constitute a related expense of UPTILAB's claim and are entirely borne by the CLIENT.
If the CLIENT's country of residence imposes a withholding tax system on payments made by the CLIENT to UPTILAB pursuant to the Contract, the CLIENT agrees, without delay (i) to pay the relevant withholding tax at its lowest possible rate to its tax authority and (ii) to deduct the amount of the withholding tax from the sums owed to UPTILAB. The CLIENT then agrees to send to UPTILAB within thirty (30) days of payment of the withholding tax by the CLIENT to its tax authority, (i) bank evidence of payment of the withholding tax and (ii) all official documents and evidence produced by the tax authorities to enable UPTILAB to carry out all the procedures to reimburse the withholding tax paid by the CLIENT to its own tax administration. The Parties undertake to cooperate in all administrative or judicial proceedings relating to the validity, to the determination of the amount of such reimbursement or to payment of such withholding tax.
9.1 UPTILAB reminds the CLIENT that the Software and the Service allow the CLIENT to improve the relevance or the efficiency of its company's marketing function, and the service also supports the CLIENT's decision-making, in particular sales decisions, but the service is not likely to affect the operation of the CLIENT's business (production of CLIENT products or services). UPTILAB is liable for direct, immediate (Art. 1231-4 [new] Civil Code) and foreseeable damages (Art. 1231-3 [new] Civil Code) caused by partial or complete poor performance of the Service that can be proven by the CLIENT. UPTILAB is in no way liable for indirect, unforeseeable or consequential damages caused by partial or total failure to perform the Service, including the cost of obtaining software or providing a substitute service to the Software or the Service.
9.2 In any event, the total amount of UPTILAB's financial liability is limited to the amount of Royalties paid by the CLIENT for the last twelve (12) months of actual use of the Service (Art. 1231-3 [new] Civil Code), except in the case of (i) bodily injury, (ii) gross or fraudulent misconduct by UPTILAB (Art. 1231-3 [new] Civil Code), or (iii) UPTILAB's infringement of the intellectual property rights of a third party or (iv) UPTILAB's non-compliance with the criminally sanctioned obligations of the GRDP. The CLIENT shall only be entitled to hold UPTILAB liable for one (1) year from the occurrence of the breach in question.
The Contract shall terminate immediately and automatically if a party fails to remedy either (i) a sufficiently serious breach (Art. 1224 [new] Civil Code) of any of its contractual obligations, or (ii) an explicit essential feature of the service (Art. 1133 [new] Civil Code) within thirty (30) days of notification by the other party of the obligation to put an end to said breach.
10.2.1 The termination of one Purchase Order does not imply the termination of other Purchase Orders in the process of execution, or those of the General Terms and Conditions, nor does it prevent the parties from concluding other Purchase Orders. At the end of the Initial Term or the effective date of termination, the CLIENT agrees to immediately cease using the Service and UPTILAB will then be entitled to discontinue the Service for the benefit of the CLIENT and its Users without any formality other than simple acknowledgment of the end of the term of the Contract.
10.2.2 At the end of the Contract term, regardless of the reason, UPTILAB is not required to ensure any form of continuity of the service delivered under the Service, this absence of service continuity constituting (i) critical information for UPTILAB's consent (Art. 1112-1 [new] Civil Code) and (ii) an essential feature of the service (Art. 1133 [new] Civil Code) provided by UPTILAB.
Pursuant to Article 1230 [new] Civil Code, at the end of the contractual term or the entry into effect of the Contract termination, regardless of the grounds and/or the basis, the stipulations that inherently survive the termination of the Contract (including confidentiality, non-competition commitment, obligations under GRDP, attribution of jurisdiction, etc.) shall remain in force.
11.1 UPTILAB warrants (i) that the Software is original and (ii) that it holds all intellectual property rights to the Software, subject to any Software modules with an "Open Source" license or that it has the right to grant a license to the CLIENT to use any additional Software modules chosen by the CLIENT and included in the Service, whose intellectual property rights are held by a third party who has granted the use to UPTILAB so that the latter can in turn validly grant the use to the CLIENT under the conditions set out in the Contract.
11.2 During the Contract Term, UPTILAB safeguards the CLIENT against any legal action or proceedings on the grounds that the Software may infringe upon the intellectual property rights of a third party. UPTILAB takes responsibility, at its own expense and choice, for the defense to be instituted as a result of an action against the CLIENT by a third party alleging infringement of his rights, the owner of the intellectual property rights on each additional module having made a similar commitment with regard to UPTILAB. UPTILAB shall pay the full amount of damages which the CLIENT shall be order to pay by a court decision with the binding force of res judicata in the main proceedings and which has become final; the CLIENT must ensure its own defense in the case of criminal proceedings. UPTILAB guarantees the CLIENT the quiet enjoyment of the use of the Software and of any additional modules, provided that the CLIENT informs it without delay of any threat of action or procedure against quiet enjoyment, allowing UPTILAB to provide the defense, and collaborates with UPTILAB in this defense at the expense of UPTILAB. UPTILAB will have full control over a civil defense, including appeal, negotiation and the right to reach a settlement within the meaning of Articles 2044 et seq. of the Civil Code. The CLIENT alone shall, at his own expense, provide its criminal defense, so as to reverse the presumption of bad faith imposed by the case law.
UPTILAB provides assistance (support) relating to the use of the Service in French and/or English, by email and by phone for the benefit of the Administrator only, at the times defined in the Purchase Order. The cost of this service is included in the Subscription fee. Only the Administrator designated by the CLIENT has access to Maintenance, but not the Users under any circumstances.
12.2.1 UPTILAB agrees to take into account the CLIENT's request for Maintenance within the shortest possible time. As soon as UPTILAB logs a written request from the CLIENT's Administrator to take action (the "Reporting" of a Bug), UPTILAB agrees to acknowledge receipt of the request and to take action as quickly as possible to reproduce and correct the Major or Blocker Bug reported.
12.2.2 UPTILAB provides the CLIENT, by remote maintenance, electronic mail, etc. the information necessary to enable it to attempt to resolve any Major or Blocker Bug as soon as it is reported. Once the Major or Blocker Bug has been identified and reproduced by UPTILAB, UPTILAB agrees to install, as soon as possible, a correction to the Software instructions which are the cause of the Major or Blocker Bug on the Platform. To accomplish this, UPTILAB may resort to installing a temporary workaround, an upgrade or a new version of the Software.
12.2.3 By express agreement between the parties, the right to use the Software granted by UPTILAB to the CLIENT in respect of the Service (and only for the Contract term) constitutes provision of a copy of the Software within the meaning of Articles 1709 et seq. of the Civil Code. In this regard, UPTILAB cannot guarantee that the Software will operate without error. The parties acknowledge that the technical state of the software does not allow UPTILAB to guarantee that UPTILAB will be able to correct all the anomalies, errors, bugs or latent defects likely to affect the Software. In accordance with Art. 1133 [new] Civil Code, by signing the Contract, the CLIENT expressly agrees to accept this risk, which is inherent in software development and operation, and therefore waives any errors relating to the quality of the Software or Service.
Updates and/or new versions of the Software are provided to the CLIENT, installed and put into production on the Platform by UPTILAB, without intervention by the CLIENT, at a frequency of which UPTILAB remains the sole judge. The terms of the Contract, in particular the right to use the Software granted to the CLIENT, apply to any update or new version installed by UPTILAB on the Platform. As part of the development of its Software, UPTILAB freely reserves the right to change its features, without withdrawing the Software features described in the Purchase Order.
To benefit from Maintenance, the CLIENT's Administrator is required to:
(i) promptly forward to UPTILAB a Report of any possible Bug and transmit to UPTILAB any information necessary or useful in locating and reproducing the Bug without delay;
(ii) make the Administrator fully available to UPTILAB, and allow UPTILAB to contact any user who might provide it with any useful information about the Bug reported in order to reproduce it.
13.1.1 Information concerning the Contract and the stipulations contained therein, very specifically the CLIENT Data processed by the Service and, in general but not limited to, the parties' business plan and their present and future activities, their personnel, their know-how, whether this information is obtained directly or indirectly from the other party, its employees, subcontractors, agents or service providers, shall be considered confidential. Confidential information is provided "as is" without warranty, express or implied, as to its accuracy or completeness. The following does not constitute confidential information:
(i) information available to the public without breach of the terms of the Contract by the party disclosing or using it;
(ii) information validly held by one party before its disclosure by the other party;
(iii) information validly obtained from a third party authorized to transfer or disclose such information without breach of an obligation of confidentiality.
13.1.2 Each party undertakes (i) not to use confidential information, for any reason whatsoever, except in execution of the rights and obligations under the Contract, (ii) not to disclose confidential information to any person, by any means, except to those of their employees, service providers or subcontractors for whom this information is necessary for the performance of the Contract, for the duration of the Contract and for five (5) years after its termination, whatever the cause.
13.1.3 For the protection of the other Party's confidential information, each Party undertakes to take the minimum protective measures it would take to protect its own confidential information and undertakes to ensure that its employees, service providers and subcontractors with access to confidential information have signed, prior to any disclosure for their benefit, a confidentiality agreement, the obligations of which are equivalent to those set out in this clause.
13.1.4 Each party acknowledges that any party who uses or discloses without permission confidential information obtained from the other party in the course of the negotiations is liable under the terms of general law (Art. 1112-2 [new] Civil Code).
13.2.1 Neither party shall be liable for failure to perform any of its contractual obligations as a result of the occurrence of an event of force majeure, understood as an event (i) beyond the control of the party (ii) which could not reasonably be foreseen at the conclusion of the Contract, and (iii) the effects of which cannot be avoided by appropriate measures (Art. 1218 [new] Civil Code).
13.2.2 During the period of force majeure, if the impediment is temporary, the event of force majeure suspends the fulfillment of its obligations by the party invoking it unless the resulting delay justifies the termination of the contract (except for the obligation to pay contractual amounts due on the date of the occurrence of the force majeure event). If the impediment is final, the Contract shall be terminated and the parties discharged from their obligations, subject to the notification of such termination by the most diligent of the two parties. In all cases, the party affected by force majeure must take the appropriate measures (Art. 1218 [new] Civil Code) in order to avoid, eliminate or reduce the causes of the delay and resume performance of its obligations as soon as the event invoked has disappeared.
Upon signing the General Terms and Conditions, the CLIENT expressly authorizes UPTILAB to use the CLIENT's name/logo/brands, strictly in accordance with the CLIENT's graphic charter, only as commercial reference (UPTILAB's list of client references and public announcements on UPTILAB's business-related social networks), to the exclusion of any other use which is subject to prior authorization by the CLIENT. Referencing the CLIENT on the public list of UPTILAB clients is an explicit essential feature for UPTILAB (Art. 1133 [new] Civil Code) of the service expected by the CLIENT.
The Contract supersedes and replaces all previous written or oral agreements or contracts between the parties relating to the same services. In the event that any provision of the Contract is found to be invalid or unwritten by a court decision which has the force of res judicata and becomes the final decision of the court, the parties agree to try to limit, as far as possible, the scope of this invalidity so that the other contractual provisions remain in force and the economic balance of the Contract is respected. In this case, the parties agree to renegotiate in good faith (Art. 1104 [new] Civil Code) the drafting of a new clause replacing the clause thus declared null, unless the cause of invalidity which affects the clause constitutes a crucial element in the agreement of the parties or of one of them, in which case this invalidity leads to the cancellation of the entire document (Art. 1184 [new] Civil Code).
The Contract may not be transferred, in whole or in part, free of charge or paid for, by the CLIENT to a third party unless prior written agreement has been obtained from UPTILAB (Art. 1216 par. 2 [new] Civil Code). The transfer of the Contract shall take effect upon the written acknowledgment (under penalty of cancellation - Art. 1216 paragraph 3 [new] Civil Code) by UPTILAB. The CLIENT and the transferee shall remain jointly and severally liable to UPTILAB for the transferee's strict compliance with the Contract (Art. 1216-1 [new] Civil Code).
Each party shall elect domicile at its registered office. Any notice (notice, reporting, approval or consent) required or necessary pursuant to the Contract shall be in writing and shall be deemed validly given if (i) delivered personally to the addressee by signature of two (2) original copies (one (1) of which is for the recipient) or (ii) by registered letter with return receipt to the other party, or (iii) by express courier service against the signature of a receipt of delivery. Except as specifically provided in a clause of the Contract, time limits are counted per calendar day, one week containing six (6) business days and five (5) working days. Any time calculated from receipt of a notice shall run from the first attempt to deliver it to the recipient, as evidenced by the postmark, as well as acknowledgment of the express mail service or the handwritten date on the hand-delivered letter. If any steps are to be taken or a notification must be made on a particular date or deadline and that date is not a business day, the steps in question may be postponed to the next business day.
The Contract is governed by French law, both for the formal rules and for the substantive rules. In the event that the Contract is translated into a foreign language, only the French version of the Contract shall prevail between the parties. IN THE ABSENCE OF MUTUAL AGREEMENT BETWEEN THE PARTIES FOR ANY DISPUTE RELATING TO THE INTERPRETATION, PERFORMANCE OR TERMINATION OF THIS AGREEMENT, in accordance with Article 48 of the Civil Procedure Code and only if the CLIENT is a trading company JURISDICTION IS EXPRESSLY ASSIGNED TO THE COMMERCIAL COURT OF PARIS, EVEN FOR INTERIM PROCEEDINGS except for material or territorial jurisdiction which cannot be waived contractually.