GENERAL TERMS OF USE AND OF SALES OF SERVICES
THE PRESENT SUBSCRIPTION FRAMEWORK AGREEMENT (« AGREEMENT») GOVERNS YOUR 30-DAY FREE TRIAL USE OF SERVICES.
IF YOU PURCHASE OUR SERVICES, THE PRESENT CONTRACT WILL ALSO APPLY TO YOUR SUBSCRIPTION AND TO YOUR USE OF THESE SERVICES.
BY ACCEPTING THE PRESENT AGREEMENT, EITHER BY TICKING A BOX INDICATING YOUR AGREEMENT, OR BY SIGNING A PURCHASE ORDER WHICH REFERS TO THE PRESENT AGREEMENT, YOU ACCEPT THESE TERMS. IF YOU CONCLUDE THE PRESENT AGREEMENT IN THE NAME OF AND ON BEHALF OF A COMPANY OR ANOTHER LEGAL ENTITY, YOU REPRESENT THAT YOU ARE AUTHORIZED TO ENGAGE THE COMPANY AND ITS AFFILIATES IN ACCORDANCE WITH THESE PROVISIONS, TO WHICH THE TERMS “THE CLIENT”, “YOU”, “YOURSELF” AND “YOUR” WILL DESIGNATE THIS ENTITY AND ITS AFFILIATED COMPANIES. IF YOU ARE NOT AUTHORIZED OR YOU DO NOT AGREE WITH THESE PROVISIONS, YOU SHOULD NOT ACCEPT THE PRESENT AGREEMENT AND YOU SHALL NOT USE THE SERVICES.
You are not authorized to access the Services if the Client is Our direct competitor, except with Our prior agreement. Furthermore, You are not authorized to access the Services in order to monitor their availability, their performance or their functions, or for any other comparative or competitive purpose.
The present Agreement, which was last updated on 6th November 2013, shall take effect between the Client and Nomalys at the date that You acknowledge acceptance.
Preamble
Nomalys’ solution provides a navigation interface, data encryption and transmission, as well as access to said data. By subscribing to the Solution or by using it, You shall be deemed to accept the present Agreement.
1. Definitions
In the present Agreement and in any Purchase Order associated to this Agreement, presently or in the future:
«License Administrator(s)» means the Users designated by you who are authorized to purchase licenses on line using the On-line Store or by signing the written Purchase Order Forms, to create User accounts and to manage otherwise your use of the Service;
«On-line Store» means NOMALYS’ on-line application which allows the License Administrator designated by you, in particular, to add extra Users to the Service;
« Client » means the natural or legal person to whom NOMALYS is providing the Services;
« Content » means the audio and video information, documents, software, products and services contained in this Service or made available during the use of this Service;
« Agreement » or « Subscription Agreement» means the present General Terms of Use or any new General Terms of Use that would replace these in application of article 3 hereinafter, and the Purchase Order, written or submitted on-line in the On-line Store;
« Date of Effect» means the date on which the Subscription Agreement is concluded;
«Service Availability Date» means the date on which the Service is made available to the Client, in accordance with the specific provisions of the Purchase Order form, by connecting them to NOMALYS’ server and sharing a login and password with them;
« Client Data» or « Data» means all of the data, information or documents supplied or submitted by you and hosted by NOMALYS within the framework of the performance of the Service;
« Intellectual Property Rights» means non-patented inventions, patent requests, patents, designs and models, copyrights, trademarks, service marks, trade names, domain names, rights related to topography and integrated circuits, know-how and other rights related to trade secrets, and all the other intellectual property rights, derivatives of these and similar forms of protection worldwide;
« Initial Duration» means this initial period during which you shall be obliged to pay for the Service, corresponding to the billing frequency that you have chosen during the subscription procedure (for example, if the billing frequency is yearly, then the Initial Duration is the first year) ;
« License Validity » means the period(s) during which a specific number of Users is authorized to use the Service according to the Purchase Order Form(s);
« Purchase Order Form(s)» means the form that attests the initial subscription to the Service and any later purchase order form submitted on-line or in written form specifying the technical, legal and financial conditions of the Service provided by NOMALYS to the Client, in particular, the number of licenses and the other contracted services, the fees applicable, the invoicing period and the other costs agreed between the parties, each of these Purchase Order Forms shall be integrated and be part of the present Contract ;
« NOMALYS » means the company Nomalys S.A.S, whose registered office is located at 46 rue Auguste BLANQUI 94250 Gentilly, France;
« Solution(s) » means the specific edition of NOMALYS’ on-line solutions for Data management, navigation on mobile and fixed terminals, data analysis and other business ERP solutions identified during the order process, developed, managed and maintained by NOMALYS or ancillary on-line or off-line solutions which NOMALYS provides to you, which you can access remotely through ASP mode under this Contract, including NOMALYS’ NOMALYS technology, Content and hot-line support;
« NOMALYS’ Technology» or « Technology» means all the technology owned by NOMALYS (including the software, material, products, processes, algorithms, user interfaces, know-how, techniques, models and other documents or tangible or intangible technical information) made available by NOMALYS through ASP mode by supplying the Service to You;
«User(s) » means the Client’s employees, representatives, consultants, suppliers or agents who are authorized to use the Service and to whom the Client (or, on your request, NOMALYS) has given user login IDs and pass words.
2. Contractual documents
The Subscription Agreement which binds the parties is composed in decreasing order of importance of the following documents:
– The Purchase Order Form,
– The appendixes to the Purchase Order Form,
– The General Terms of Use.
In case of ambiguity or contradiction between the terms of the different contractual documents, the stipulations of the document which is higher in order shall prevail.
No other document shall have any contractual value or bind the parties.
3. Application and opposability of the general terms of use
The present General Terms of Use are systematically sent or given to each Customer in order for them to acquaint themselves with the general principles which apply to Subscription Agreements that Nomalys concludes with Customers. By agreeing to the Subscription Agreement, the Customer fully and unreservedly accepts these General Terms of Use, subject to the specific terms of the Purchase Order Form specifically agreed between the parties and formally accepted in writing.
Nomalys reserves the right to modify the provisions of the present General Terms of Use at any time. Nomalys shall inform the Customer of any modification. By continuing to use the Solution after being notified of the modified General Terms of Use, the Customer shall imply the acceptance of these.
No failure or delay by Nomalys to exercise any right provided under these General Terms of Use, shall constitute a waiver of that or any other right.
4. Licensing and limitations
4.1 Nomalys hereby grants You a non-exclusive, non-transferable right, except with Nomalys’ agreement, limited to the duration of the Agreement, to use the Solution worldwide through ASP, exclusively for the Customer’s own professional activity or that of the Beneficiary or Beneficiaries to whom Nomalys shall have given their agreement, subject to the provisions of this Agreement.
Nomalys’ Technology is available to the Customer remotely through ASP. This is done by opening a connection to Nomalys’ server and giving the Customer(s) their credentials (login and password).
4.2 Nomalys reserves the right to modify the Solution, its Content and the associated Technology (ongoing maintenance). The Customer, therefore expressly accepts that the Solution, the Content and the associated Technology may evolve, without having to be notified by Nomalys, provided that none of the Solution’s features shall be deleted.
4.3 The Customer is not authorized to access the Solution if it is a direct competitor of Nomalys, except, if it has prior written consent from Nomalys. Furthermore, the Customer is not authorized to access the Solution in order to monitor its availability, its performance or its functioning, or for any other comparative or competitive evaluation.
4.4 The Customer shall not (i) make any form of reproduction or representation of the Solution, the Technology or the Content, to license, sub-license, sell, re-sell, transfer, assign, distribute or exploit for commercial purposes, or make otherwise available to third parties the Solution, Technology or the Content in any manner; (ii) to modify the Technology, the Solution or the Content or to create derivative works thereof; (iii) to create Internet “links” to the Solution, or “frames” or “mirror pages” from any Content on any other server or wireless or internet based system; (iv) to reverse engineer or access the Solution in order to (a) create a competing product or solution (b) create a product using ideas, characteristics, functions or graphical designs which are identical to those of the Solution, or (c) copy the ideas, characteristics, functions or graphical designs of the Solution, or (v) intervene on the Solution, the Technology or the Content in any manner and for any reason, including to correct errors, since applicative maintenance is provided by Nomalys.
4.5 User licenses cannot be shared, and cannot be used by more than one individual User. They may be periodically reallocated to new Users who replace the previous Users who no longer work or who have otherwise changed professional status or function and no longer use the Solution.
4.6 The Customer shall only use the Solution for its internal professional needs and shall not try to obtain non-authorized access to the Solution or to the related systems and networks.
5. Identification
The Customer undertakes to give Nomalys the name, phone number, postal address and email address of the person to contact as License Administrator.
The credentials shared with the Customer (login and password), which are required to access the Solution, are unique, personal and strictly confidential.
Each Party undertakes to protect the confidentiality of these credentials.
Any use of the credentials shall be deemed as irrefutable use of the Solution by the Customer, who thereby expressly declares to accept it.
The Customer undertakes to inform Nomalys immediately of any theft or breach of credential confidentiality.
6. Intellectual property
Nomalys (and its licensors, if any) shall be the sole owner(s) of the rights, including all Intellectual Property Rights, applicable and related to the Technology, the Content, and Nomalys’ Solution. The present Agreement does not constitute a sale and does not confer any right of ownership to You for the Solution, Nomalys’ Technology, the Content or the Intellectual Property Rights owned by Nomalys. The rights of use conferred by this Solution shall automatically cease, unless otherwise agreed between the parties, upon expiry of the Subscription Agreement.
The name Nomalys, the Nomalys logo and the product names associated with the Solution are Nomalys’ or third party trademarks, and no right or license is granted for their use.
The Customer and Nomalys shall each remain the owner of their concepts, ideas, know-how, tools or development techniques, as well as any document or information that they may need to use or develop for the purpose of this Subscription Agreement and for which they hold the intellectual property rights.
7. Data – ownership
7-1 Data Ownership
The Customer undertakes to own all the intellectual property rights relating to the Data.
The Customer Data hosted by, or which transit through, the Solution remain the property of the Customer.
7-2 Data Protection
Nomalys undertakes to deploy the appropriate technical means to ensure the security of Customer Data. Nomalys shall not communicate the Customer Data in any form, to any third party or use it in any way not foreseen by the Agreement.
Upon termination of the Agreement, the Customer Data hosted by Nomalys shall be destroyed by Nomalys after expiration of a thirty (30) day period following the term of the Agreement.
7-3 Applications and material
All of the material, and if any, the telecommunication lines, as well as all of the storage, backup and security products are rented by Nomalys to the Customer who cannot claim ownership of them.
7- 4 Data Protection Act
The Customer is responsible for carrying out the administrative procedures and declarations relating to the law of 6th January 1978 pertaining to information technology, files and freedom of use and other related regulations, according to the laws in force in the country of the Beneficiary of the Solution, subject of the present agreement, if they are enforceable.
8. Confidentialty
8-1 Each party undertakes to consider any information the other party shares with it as confidential, regardless of the medium used (papers, drawings, electronic support, etc.) or the form of transmission.
Each Party undertakes not to disclose any confidential information, in whole or partially to any third party and not to use it other than for the performance of the present Agreement, or for technical, industrial, commercial or financial purposes without the prior written consent of the other Party
In any event, each party shall only use the information for the performance of this Agreement.
To this end, each party shall only communicate the said information to the personnel assigned to the execution of the Subscription Agreement, and any sub-contractors who require this information. Each party undertakes to protect the information, with at least the same care and the same procedures that it would use to protect its own trade secrets and confidential information. Each party undertakes to take all necessary measures, with regard to its personnel and any outside persons who may have access to the information, to ensure the confidentiality.
Neither of the parties shall reveal the existence and/or the Content of the present Agreement, nor use it for commercial reasons without the prior written consent of the other party.
Upon expiry of the Subscription Agreement, each of the parties undertakes to return to the other Party, all of the documents and data on electronic support as well as any copies made.
Confidential information shall not include information that:
-is part of the public domain at the time of disclosure or which may have become part of the public domain without any contravention to this article,
-is already known by the receiving party prior to disclosure without restriction on disclosure at the Date of Effect of the Agreement,
-results from internal developments carried out by the receiving party the information, without using Confidential information in the sense of the present article.
THE PROVISIONS OF THIS ARTICLE SHALL REMAIN IN EFFECT FOR A PERIOD OF THREE YEARS FROM THE EXPIRATION OR TERMINATION OF THIS AGREEMENT, FOR WHATEVER CAUSE.
8-2 Advertising
Nomalys may disclose the name of the Customer for its advertising and sales material unless the Customer expressly requests the contrary in writing at the signature of the Agreement.
9. Details of the solution
9-1 Availability of data and the solution
Nomalys undertakes to use all appropriate human, material and technical means to ensure the availability of the Solution, namely access to all of the functions and Customer Data.
The Solution availability target is 99.85 %, 24/7, 365 days a year, excluding time slots reserved for application updates and system maintenance, of which Nomalys shall inform the Customer in advance. The following are excluding from the calculation of availability:
- Failures lasting less than 30 minutes,
- Failures attributable to the Customer,
- Failures due to the internet network or telecom operator connections,
Nomalys’ solutions may be subject to limitations, delays and other problems which are inherent to the use of internet and electronic communication. Nomalys shall not be held responsible for any delay, non-delivery or damage resulting from these problems.
Furthermore, the Customer shall ensure that their technical installation (material, software, networks, terminals, connections, wiring, etc…) and configuration meet requirements for the Solution to function properly.
9-2 Solutions
Solutions shall be delivered in accordance with the provisions of the Purchase Order placed by the Customer in accordance with the terms of Nomalys’ corresponding proposal.
9-3 Subcontracting
Nomalys may subcontract all or part of its services and its obligations under the Subscription Agreement to another service provider, in compliance with the rules of confidentiality set out in article 8-1.
9-4 Hotline/support
In the framework of the Subscription Agreement, Nomalys provides second and third level support, in French and/or English, for the applications, i.e.:
– availability and accessibility of the Solution
This telephone support is accessible as a standard on working days from 9.00 am to 12.00pm and 2 pm to 6.00 pm.
Prerequisite: The Customer shall appoint maximum 3 (three) contacts, who have the required expertise on the technical and functional parts; only these three contacts shall be apt to use the Hotline proposed by Nomalys.
9-5 Unavailability – Correction
In case the Solution is unavailable, except for the cases defined in articles 13-1, 13-2 et 13-3 for which Nomalys cannot be held responsible and outside the downtime mentioned in 9-1, Nomalys undertakes to use all means at its disposal to ensure that the Solution is up again within four working hours. Working hours are hours that the technical assistance can be reached as set out in article 9-4.
10. Fees, invoicing and payment
10-1 Fees
The fees applicable for the Solution are defined in the Purchase Order Form.
10-2 Invoicing – Terms of payment
Nomalys invoices the fees corresponding to the use of the Solution at the beginning of each period. Nomalys shall issue an invoice automatically each year at the date of the anniversary of the licenses, or as may be agreed.
Invoices shall be paid, at the latest within 30 (thirty) days of receipt of the invoice preferably by direct debit.
Nomalys fees are excluding taxes.
The Customer undertakes to inform Nomalys of their full and exact contact and billing details. This information includes the name, postal and e-mail address, name and phone number of the Customer contact person for invoicing and the License Administrator. The Customer undertakes to update this information within 30 (thirty) days following any change. In case contact information shared by the Customer is false or fraudulent, Nomalys reserves the right to terminate access to the Solution, without any prejudice to any other legal remedy.
Should the Customer consider that the invoice is wrong, then they shall contact Nomalys in writing within 30 (thirty) days following the date of the invoice in question in order to be eligible for a credit note or an adjustment to the invoice.
11. Duration of subscription
The present Agreement takes effect from the Date of Effect.
The duration of the Agreement corresponds to the Initial Duration.
The Agreement shall automatically be renewed at the end of its term for successive renewal terms equal to the Initial Duration, at Nomalys’ rates valid at the time of renewal, unless either party terminates the Agreement by giving notice at least (1) month before the term.
Either party may reduce the number of User Licenses by giving written notice to the other party at least 1 (one) month before term; this shall only take effect upon expiration of the License that is valid at that time.
In case of renewal of the Agreement, the General Terms of Use applicable shall be those in effect at Nomalys at the date of renewal.
12. Failure to pay / Penalties / Termination / Reconnection / Suspension
12-1 Any amount not paid by the Customer when due shall be subject, within 8 (eight) days after sending formal notice by registered mail with acknowledgement of receipt and which remains unsuccessful, to penalties equivalent to the rate applied by the European Central Bank at its most recent refinancing operation, increased by 10 (ten) points, starting on the day after which the payment was due. Furthermore, Nomalys may suspend the Solution until full payment of the due amount including penalties has been made.
In case Customer has still not paid after a period of 15 (fifteen) days after sending the notice referred to above, Nomalys may terminate the Agreement without any further notice, the fault lying exclusively with the Customer.
12-2 Moreover, in case of breach by the Customer of any of its obligations under the Agreement, Nomalys may terminate the Agreement 15 (fifteen) days after sending a formal notice by registered mail which has remained unsuccessful.
The termination of the Agreement shall immediately lead to the suspension of the provision of the Solution and the cancellation of the credentials
12-3 Nomalys reserves the right to impose a reconnection fee in the event that the Customer requests once more to have access to the Solution, after their subscription has been terminated. The Customer accepts and recognizes that Nomalys is not required to keep the Customer’s settings and that the Customer’s settings may be definitely deleted upon termination of the Agreement.
12-4 Any unauthorized use of the Technology or the Solution, contrary to the provisions of article 4 of the present General Terms of Use, shall be deemed as a serious breach of a material obligation of the present Agreement. In this case, Nomalys may immediately suspend the Agreement.
12-5 The suspension of the Solution provided by Nomalys, under the provisions of the present Agreement shall not give rise to compensation.
12-6 In the event of early termination by the Customer, a) the Customer shall pay the difference between the subscription fee for their initial commitment and the subscription fee for the real duration observed b) If the difference between the duration of the commitment and the actual subscription duration observed is more than 6 (six) months, then the Customer undertakes to pay a penalty equal to ba) 1 (one) month’s subscription if the difference is between 6 (six) months and 12 (twelve) months bb) 2 (two) months if the difference is more than 12 (twelve) months.
13. Responsabilities
13-1 Responsibilities for data transmitted and residing on the servers
It is important to remember that the data hosted on, or which transits through Nomalys’ Solution belongs to the Customer. The Customer is therefore solely responsible for the data which resides on or which transits through the Solution and the accuracy of the data. The Customer undertakes to indemnify, defend and protect Nomalys and its sub-contractors, at its own expense, from and against any claim, loss, damage (attorney’s fees for a reasonable amount and expenses included) allegations or responsibility consequent to:
-any damage to persons or third party assets due to data residing on or transiting through the solution,
-any violation of French or International law due to the said data residing on or transiting through the Solution,
-the illegal, immoral, infringing, defamatory, or alleged illegal, immoral, infringing or defamatory character of said data which resides on or transits through the Solution.
The Customer undertakes to inform Nomalys immediately of any knowledge of any of the above cases.
Furthermore, Nomalys may be required to suspend access to the Solution in case of the circumstances described above.
13-2 Responsibility for processing on the servers
As a consequence of, and due to the characteristics of public and private telecommunication networks, Nomalys shall not be held responsible, in particular for:
- The quality of the data entered by the Customer’s Users,
- The poor sizing of telecommunication lines due to poor information supplied by the Customer,
- The possible misuse of passwords and confidential codes and more generally any sensitive information for the Customer, despite reasonable security measures implemented by Nomalys.
13-3 Force majeure
In case of breach of obligations of the Solution resulting from a case of force majeure, the parties shall not be liable. The cases usually retained by jurisprudence in French courts and tribunes and which have an unpredictable, insurmountable and outdoor nature are expressly considered as cases of force majeure. Initially such circumstances shall cause the Agreement to be suspended, provided however that the invoking party informs the other party in writing as soon as they know of their occurrence, that they do their best to limit the consequences and finally that they resume the execution of the Agreement immediately after the circumstances have disappeared.
Thereafter, and in so far as the circumstances continue to exist for a duration of more than 3 (three) months, the parties shall engage in discussions in order to modify the terms of the Subscription Agreement.
In case the parties are not able to reach an agreement for the modification, the Agreement may then rightfully be terminated without compensation on either side, at the initiative of either party giving notice to the other party in writing by registered mail with acknowledgement of receipt.
Such termination shall be valid after a period of 8 (eight) days after the letter of formal notice is sent by registered mail with acknowledgement of receipt indicating the intention to apply this clause.
13-4 Nomalys’ responsibility
If Nomalys’ responsibility is called in question regarding the performance of its obligations, it is expressly agreed that:
– Nomalys’ can only be held responsible for a proven fault by Nomalys,
– Nomalys’ responsibility under the terms of the Subscription Agreement can be sought no later than 3 (three) months after the date that the event giving rise to the responsibility was discovered or should have been discovered by the Customer,
– Nomalys’ total maximum responsibility under the Subscription Agreement shall not exceed, all claims combined, a total amount equal to 3 (three) months of invoicing to the Customer; This amount is determined on the basis of the sums received by Nomalys during the 3 (three) months prior to the events that generated the invoking of their responsibility,
– Nomalys shall not be responsible for indirect damage such as, in particular, loss of reputation, loss of income, activities, customers, anticipated savings or profits.
14. Communication
Customers are asked to indicate if they do not wish to periodically receive from Nomalys, commercial information or other non-essential information related to the Solution. They may indicate that they refuse to receive such information at that time or any other moment, by email sent to contact@nomalys.com.
Since the Solution is an online application, Nomalys may occasionally need to send to all the Users of the Solution, (whether they have indicated their refusal as mentioned above or not) important announcements regarding the functioning of the Solution.
15. Notification
Unless otherwise provided in the Agreement, Nomalys may send notifications through a global notification on the Solution, by e-mail to Your e-mail address shown in the account information provided to Nomalys or in writing sent by first class mail or pre–paid post to Your postal address shown in Your account information held by Nomalys. The notification shall be deemed to have been made 48 hours after being sent by post (in case of first class or pre-paid post) or 12 hours after sending (in case of e-mail). You may send a notification to Nomalys at any time (the notification is deemed made upon receipt by Nomalys) in one of the following ways: by letter sent by confirmed facsimile to Nomalys; by letter sent through a nationally recognized express mail delivery service or by pre-paid first class post sent to Nomalys.
16. Assignment, change of control
The Customer may not assign this Agreement without the prior written consent of Nomalys, but Nomalys may assign it without Your prior consent to (i) a parent company or a subsidiary, (ii) an acquirer of assets or (iii) right-holders, following a merger. Any purported assignment which violates this section shall be void.
Nomalys reserves the right to immediately terminate this Agreement for cause, upon simple notice, in case of an effective or planned change in control which concerns You, giving rise or likely to give rise to a direct or indirect holding of 50% or more of Your company by a direct competitor of Nomalys.
17. Miscellaneous
17-1 Legal obligations – Tax and Social audit
In case of an audit by the tax administration or by Social organizations, Nomalys undertakes not to disclose any information directly relating to the processing and the Customer’s data without having obtained prior written consent from the Customer, except an in the case of imperative legal or regulatory provision.
If the Customer has given their consent, Nomalys undertakes to facilitate the tax administration or social organizations access to the Customer’s operating environment and to fully cooperate with the Customer in connection with such an audit.
17-2 Commitment for non-solicitation of personnel
Nomalys and the Customer, for the duration of their contractual relations and at least 12 (twelve) months after the termination thereof, shall not employ or give work, directly or indirectly through an intermediary, to any of the other party’s employees, whatever their specialization and even in the event where la solicitation is the initiative of the employee.
In case of non-compliance with this clause, the defaulting party shall pay the other party compensation equal to 12 (twelve) months gross salary, including employer contributions for the persons employed, calculated on the basis of their pay at the time of departure.
17-3 Questioning of Context
Any modification to the context in which the Subscription Agreement was signed (Customer relocation, acquisition of another company automatically implying an increase in the number of users, etc.) shall lead to a study of the new scope to conclude an amendment including the new data.
17-4 Dispute
THE AGREEMENT DOCUMENTS AS SPECIFIED IN ARTICLE 2 ABOVE ARE GOVERNED BY FRENCH LAW.
ANY DISPUTE CONCERNING THE VALIDITY, INTERPRETATION, AND THE PERFORMANCE OF THE AGREEMENT DOCUMENTS SHALL BE THE EXCLUSIVE JURISDICTION OF THE COURT OF COMMERCE OF CRETEIL.
17-5 Election of domicile
For the implementation of this Agreement and its consequences, the parties elect domicile at their respective headquarters.