IMPORTANT - ATTENTION:
This Software License and Technical Support Agreement (hereinafter the "Agreement") is entered into between PROMODAG, a société anonyme having a share capital of 140,000 Euros, with its registered office at 8, rue Charles-Pathé, 94300 Vincennes, France, registered with the Créteil RSC (Créteil Commercial and Corporate Registry) under number B 612 042 127, represented by Mr. Jacques Dagousset, hereinafter referred to as "PROMODAG" and yourself, an individual or legal entity, in your capacity of User.
This Agreement sets forth the terms and conditions pursuant to which PROMODAG grants to the User the non-exclusive and non-transferable right to use the Software.
At the request of the User, and subject to payment of the corresponding fees, PROMODAG shall provide Technical Support and Updates for the Software as defined hereunder.
The Software governed by this Agreement is downloaded by the User from the PROMODAG website at the following address: https://www.promodag.com
The Software shall be delivered by providing a copy of the object code of the Software which contains a copy of the on-line Software documentation in an electronic format (hereafter the "Documentation").
The Software shall be installed by the User in strict compliance with the Software installation procedure.
The License is granted for a 45 day trial period from the date the Software is downloaded (hereinafter the "Trial Period") for testing and evaluation purposes. The trial version of the Software provided for such period does not include all features and performances of the Software.
During the Trial Period, the User may use and test the Software in compliance with the terms and conditions hereunder, on an indeterminate Number of Installations.
AFTER THE 45 DAY PERIOD, USE OF THE SOFTWARE IS PROHIBITED UNLESS THE USER HAS ENTERED INTO A FINAL SOFTWARE LICENSE AGREEMENT AND, WHERE APPLICABLE, TECHNICAL SUPPORT AND UPDATES SERVICES. IN SUCH EVENT, PROMODAG SHALL SEND THE REGISTRATION CODE AND INFORMATION IN CONNECTION WITH THE LICENSE, TECHNICAL SUPPORT AND UPDATES BY MAIL IN COMPLIANCE WITH THE SCHEDULE A ATTACHED HERETO.
PROMODAG hereby grants to the User a Software License for the duration of the author's rights as of the effective date set forth in schedule A, which will be sent, duly completed by PROMODAG, with the registration Code to the User by electronic mail or ordinary mail.
Technical Support and Updates shall be provided to the User from the invoicing date and for the duration determined by the parties and set forth in Schedule A of this Agreement, which shall be returned to you with the registration Code.
The User shall be exclusively responsible for selecting the Software which most appropriately corresponds to its requirements and for implementing any necessary measures to ensure satisfactory use.
The User shall be solely and exclusively responsible for:
- Ensuring proper integration of the new information processing systems into its business and preparing any complementary documentation necessary to meet its internal operational requirements,
- Having sufficiently qualified personnel to meet performance targets,
- Implementing sufficient operational and running control procedures, defining the Software configuration and parameters,
- Installing file, software and data safeguarding and back-up procedures in addition to replacement and recovery procedures in case of failures of the Software,
- Ensuring the relevance and coherence of the results obtained with the Software and its compliance with its own needs.
PROMODAG grants to the User a personal non-exclusive and non-transferable right to use the Software for business purposes, subject to strict compliance with the terms, conditions and restrictions set forth in the Documentation or appearing on the PROMODAG website https://www.promodag.com. This right of use granted by PROMODAG to the User shall be exercised subject to the following:
- The granted Software License shall be limited to the Messaging environment: On-Premises, Office 365, Hybrid (hereinafter the "Messaging environment") defined in Schedule A.
- The granted Software License shall be limited to the number of workstations or computers (hereinafter the "Number of Installations") defined in Schedule A.
- For On-Premises or Hybrid Messaging Environments the granted Software License shall be limited to the number of servers defined in Schedule A (hereafter the "Number of Servers"). The Software governed by this Agreement shall only analyse the group or sub-group of servers defined at the time the Software is installed.
- For Office 365 or Hybrid Messaging Environments the granted Software License shall be limited to the number of Office 365 Mailboxes defined in Schedule A (hereafter the "Number of Office 365 Mailboxes").
Unless otherwise provided hereunder, the User hereby agrees to refrain from:
- Any use which has not been expressly authorized, or any alteration on the Software or the Documentation in any manner whatsoever,
- Any legal transaction with respect to the Software of any nature whatsoever, either free of charge or for valuable consideration, including but not limited to renting, selling, disclosing it or otherwise allowing use by third parties other than as strictly and expressly provided for in this Agreement.
The financial terms are set forth in the PROMODAG Offer or that of its re-sellers.
The User hereby acknowledges that the amount of the License fee has been calculated on the basis of the authorized Number of Servers, Office 365 mailboxes and Installations and that consequently the User shall be liable to pay an additional License fee in the event of any increase in the Number of Servers, Office 365 mailboxes or Installations.
The Technical Support and Updates fee has been calculated on the basis of the License fee. Therefore, any increase of the foregoing amount shall automatically trigger an adjustment of the Technical Support and Updates fee prorata temporis, based on the number of months and days remaining in the annual Technical Support and Updates period.
Furthermore, the Technical Support fee may be re-evaluated annually on the Technical Support and Updates renewal date based on the following calculation method:
P0 x S1
P1 = ------------
S0
Where:
P1: is the adjusted price.
P0: is the price set forth in this Agreement.
S0: is the most recent SYNTEC* index published at the time of execution of this Agreement.
S1: is the most recent SYNTEC index published as of the adjustment date.
* Chambre Syndicale des Sociétés d'Etudes et de Conseils
Any services not governed by this Agreement shall be subject to the prior written consent of the User and shall be invoiced pursuant to the standard PROMODAG price list.
PROMODAG is the owner of all intellectual property rights in connection with the Software.
The User is hereby authorized to make: (i) one back-up copy of the Software, (ii) one printed copy of the Documentation.
The User shall maintain any notices of intellectual property or other distinguishing signs of PROMODAG which are contained on the Software or any updates, back-up copy, computer media or which appear in any documentation.
The User hereby agrees to refrain from fixing or having fixed any bugs in the Software without the prior written consent of PROMODAG.
The User shall not decompile or translate the object code of the Software into a source code either itself or by any third party, unless expressly authorized by relevant laws in relation to inter-operability.
PROMODAG does not warrant the fitness of the standard features of the Software for the particular purposes of the User, nor that the Software is free of defects, nor that it shall operate in an uninterrupted manner.
PROMODAG hereby informs the User of its obligation to subscribe to Technical Support and Updates in order to ensure the durability and proper operation of the Software.
The User shall promptly notify PROMODAG and provide any necessary information and assistance where it becomes aware that any unauthorized person:
- Has come into possession of the Software,
- Has infringed any intellectual property rights in connection with the Software,
- Disputes the quality and/or the nature of the intellectual property rights attached to the Software.
In the event of seizure or infringement proceedings, the User shall promptly inform PROMODAG, protest against the seizure and take any necessary measures to defend the intellectual property rights of PROMODAG.
In the event of any infringement proceedings in France with respect to the Software, PROMODAG shall conduct the defence on behalf of the User and shall warrant, indemnify and hold the User harmless from any final decision rendered against the User by the French courts on the grounds of infringement by PROMODAG of any intellectual property right within the territory of metropolitan France provided that:
- The User has promptly notified PROMODAG in writing of any such proceedings,
- The User has disclosed any relevant elements and information and provided assistance to PROMODAG to facilitate the conduct of its defence in the infringement proceedings.
In the event the use of the Software is prohibited by a final court decision or an out-of-court settlement executed with the plaintiff within the context of such infringement proceedings, PROMODAG shall, at its sole discretion and expenses:
- Either obtain the right for the User to continue using the Software,
- Or, alter the Software or replace it with a non-infringing software,
- Or, if neither of the aforementioned solutions is considered by PROMODAG to be commercially acceptable, reimburse the License fees paid or payable by the User.
Upon its request, the User may purchase, from PROMODAG, a Technical Support and Updates service, subject to the following terms and conditions:
On the Technical Support effective date, the User shall communicate the name and details (address, e-mail, telephone and fax numbers) in writing of the designated contact (hereinafter the "PROMODAG Contact ") who shall be the sole PROMODAG Contact responsible for reporting incidents to PROMODAG (hereinafter the "Technical Support Requests").
The User shall promptly inform PROMODAG in writing of any change of PROMODAG Contact or in its particulars.
The PROMODAG Contact shall submit any Technical Support Requests to PROMODAG by electronic mail (e-mail) or by telephone:
- Technical Support Requests may be made by telephone from Monday to Thursday, between 10:00 a.m. and 12.00 a.m. to 2.00 p.m. and 7:00 p.m. and on Fridays between 10:00.a.m and 12.00 a.m. to 2.00 p.m. and 6:00 p.m., Paris local time and on PROMODAG business days.
PROMODAG shall be under no obligation to return telephone calls made by the User outside the foregoing times. In the event the User fails to reach technical support, the User shall be exclusively responsible for renewing such telephone call.
- Technical Support Requests may be sent to PROMODAG by electronic mail outside the scheduled hours.
Any Technical Support Request made by telephone shall be confirmed by electronic mail. Any reported incident shall be described and documented by the User with sufficient details. Upon PROMODAG’s request, the User shall communicate any information, data and additional program code.
PROMODAG shall solely be liable to fulfil its Technical Support and Updates obligations for incidents which the User has reported and which can be reproduced by PROMODAG, and hereby declines liability for any incident or defect concerning products other than the Software.
Upon notification of an incident accompanied by any further information required by PROMODAG, PROMODAG shall undertake its best efforts to deal with the incident and provide an appropriate resolution, including but not limited to any workaround which allows the use of the Software.
Solely the Software version marketed at the time of the Technical Support Request or non-current version which is less than six month old can be handled by PROMODAG pursuant to its Technical Support obligations.
Support services may be provided in English or in French.
PROMODAG shall provide the User with the following:
- "Minor Updates", comprised of corrections which do not require modifications or additional features. Such minor Updates are available on PROMODAG website at the following address: https://www.promodag.com.
- "Major Updates" or "New Versions" which include new features or enhancements. Such Major Updates are available on PROMODAG website at the following address: https://www.promodag.com and the updated license shall be sent by electronic mail to the PROMODAG Contact.
The User shall be responsible for promptly informing PROMODAG in writing of any change in its email address particulars for the announcement of Major Updates or New Versions.
The following services are not included in the Technical Support and Updates:
- Any service in connection with uninstalling or reinstalling the Software, including due to alterations of the User’s computer environment.
- Any service required in connection with the equipment, networks, software and databases of the User;
- Interventions on the User site;
- services required due to : (i) handling errors, negligence or fault of the User during use of the Software; (ii) the use of the Software on a configuration and in an environment not authorized in the Documentation ; (iii) the installation of the Software on other systems not initially defined in Schedule A.
The User shall have high-performance material and skilled personnel to facilitate the Technical Support and Updates services provided by PROMODAG.
Upon request, the User shall provide PROMODAG with any information necessary to execute the Technical Support and Updates services, including but not limited to complete and updated information with respect to configuration of its information system, including equipment, networks, software, files and data bases.
The User shall provide its License number with any request of Technical Support and Updates.
The User shall make a back-up copy of any software, files and data, prior to any Technical Support and Updates installation.
Where PROMODAG’s liability is incurred:
1° - Pursuant to this License Agreement, including cases arising out of use or impossibility to use the Software or any other breach hereunder, the User’s remedy for direct damages incurred as a result thereof is limited, by mutual agreement of the parties, to the amount of the License Fee paid or payable by the User hereunder, less a depreciation calculated on a straight-line basis over five years;
2° - Pursuant to the Technical Support and Updates services, the User’s remedy for direct damages caused by this Technical Support and these Updates is hereby limited, by mutual agreement of the parties, to the amount of the most recent annual Technical Support and Updates Fee paid or payable by the User on a prorata basis of the remaining Technical Support and Updates services to be provided for the current year.
In any event, PROMODAG shall not be liable for any consequential or indirect damages arising out of the Technical Support and Updates, the use or impossibility to use the Software or for any other breach hereunder. The parties hereby agree inter alia that any loss of profits, loss of business, loss of goodwill, loss of orders or loss of data shall be deemed indirect damages.
Neither Party shall incur liability if the execution of this Agreement is delayed or prevented due to events of force majeure, contingency, or any other cause beyond the control of the Parties, including but not limited to acts of God, strikes, labor conflicts, state of war, earthquake, fire, explosion, intervention of governmental authorities, water damage, malfunctioning or interruption of electrical or telecommunication networks.
The Parties hereby expressly agree that any communication failure, including of electronic correspondence, through no fault of either Party, shall be deemed an event of force majeure.
In the event of breach by either Party of its material obligations hereunder, the other Party may automatically terminate this Agreement in the event the defaulting Party does not remedy such breach within thirty days from the date of a formal notice in which said breach is notified.
The Parties hereby agree throughout the term of this Agreement and for an additional twelve month period following its expiration or termination for any reason whatsoever, to refrain from hiring or soliciting any employee of the other Party assigned to the execution of this Agreement, without the prior written consent of the other Party.
Any Party in breach of the foregoing obligation shall be liable to pay to the other Party an indemnity equal to the gross remuneration paid to such employee for the preceding twelve month period.
The Parties shall not disclose any documents or information communicated by the other Party pursuant to the execution of this Agreement and undertake to have these provisions complied with by its employees, subcontractors and collaborators.
Pursuant to this Agreement, the Parties may have access to confidential information provided to each other on a trust basis (the "Confidential Information"). Such Confidential Information shall include inter alia the payment terms of this Agreement, any information deemed confidential by either Party, and any and all data and files that may be forwarded by the User.
The Parties hereby mutually agree that the following information shall not be deemed Confidential Information : (a) information which is in the public domain, through no fault or omission of the other Party ; (b) information legitimately held by the other Party prior to its disclosure and not obtained by the disclosing Party directly or indirectly through the other Party; (c) information legitimately disclosed to the other Party by a third person not bound by the restrictions set forth in this clause ; or (d) information independently developed by the other Party.
The Parties agree to keep confidential the Confidential Information of the other Party throughout the term of this Agreement and for a further 5 year period following the expiration or termination of this Agreement, for any reason whatsoever.
The Parties agree that, save and except where required by law or court order, it shall refrain from disclosing the Confidential Information belonging to the other Party to any third parties for any reason other than pursuant to the execution of this Agreement.
Each Party agrees to take any and all reasonable measures to ensure that the Confidential Information is only disclosed or provided to employees, agents, subcontractors who require such information for the purpose of performing obligations hereunder.
PROMODAG may refer to the User and indicate its name on a listing for the purposes of either internal or external communications during marketing presentations, press releases, brochures, financial or regulatory reports, marketing tools and seminars and generally during the course of its business.
The User shall not assign or transfer this Agreement, either free of charge or for valuable consideration, in any manner whatsoever, including in case of merger or partial transfer of assets without the prior written consent of PROMODAG.
The provisions of this Agreement replace and supersede any and all prior written or verbal commitments of either party with respect to the Software. This Agreement, in addition to Schedule A, constitutes the entire agreement between the parties with respect to the subject matter hereof.
Any amendment to the Agreement shall be set forth by written addendum attached hereto.
In the event of a dispute with respect to the interpretation of any headings or provisions, the content of the provision shall prevail over the heading.
In the event any provision hereunder is deemed invalid or unenforceable pursuant to applicable law or regulations, such provision shall be deemed unwritten and shall have no effect on the other provisions of the Agreement.
Unless otherwise provided under the Agreement, in the event that either Party fails to enforce a provision of the Agreement, such failure to enforce shall not be deemed to be a waiver of any right to subsequently enforce the relevant provision.
The Software pursuant to this Agreement may process personal data. The User shall consequently comply with legal provisions concerning personal data protection in the State and the geographic area where the software is used and/or the data is collected and/or processed, as well as any relevant international regulations in this respect.
This Agreement shall be governed by French law.
In the event of disputes arising out of the interpretation or execution of this Agreement, the Parties agree to undertake their best efforts to reach an out-of-court settlement. In the event the Parties fail to reach an out-of-court solution, any dispute between the Parties arising out of the interpretation or execution of the Agreement shall be submitted to the exclusive jurisdiction of the Courts of Paris. Such jurisdiction shall also apply in case of injunctive relief.
PROMODAG Software License Agreement as of November, 2018
SCHEDULE A
User Information
Company:
Address:
Promodag Contact:
Email:
Phone:
Fax:
Promodag Reports License
License number:
License type:
Effective date:
Version: Edition:
Messaging environment:
Exchange organization name:
Number of servers:
Office 365 organization name:
Number of Office 365 Mailboxes:
Number of consoles:
Technical Support and Updates Agreement:
Effective date: End date: