General terms and conditions of SaaS license
As of October 15th, 2021
These general terms and conditions of SaaS license (“GTCs”) shall apply between QUORTEX, a société par actions simplifiée company duly organized and existing under the laws of France with company number RCS n°842 176 141, having its principal place of business at 1137a avenue des Champs Blancs, 35510 CESSON-SÉVIGNÉ, FRANCE (“QUORTEX”) and the Customer (as defined below).
The provisions of these GTCs shall also govern all Updates of the Software (as defined below) provided by QUORTEX, which might replace and/or add to the Software version currently in use when these GTCs come into force, unless such Updates are subject to a separate licensing agreement.
Section 1. Definitions
Capitalized terms used in the Agreement, whether used in the singular or the plural, shall have the meaning given to them below.
“Affiliate” means, with respect to a Party, another legal entity that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with this Party. For the purpose of this definition, “control” shall mean an entity, directly or indirectly, holding more than fifty per cent (50%) of the issued share capital, or more than fifty per cent (50%) of the voting power at general meetings, or which has the power to appoint and to dismiss a majority of the directors or otherwise to direct the activities of such legal entity.
“Agreement” means the GTCs, together with any Order Forms executed by the Parties and QUORTEX’ Personal Data processing policy and QUORTEX’ SLA or QUORTEX support agreement and any addendum of these GTCs.
“Authorized User” means the user under the responsibility of the Customer, allowed to use the Services, in compliance with these GTCs, including the Customer Data generated by, or the output of the Services as a part of the Customer’s services to its customers.
“Customer” means the entity as identified in the Order Form and which orders the Services for its business or professional purposes.
“Confidential Information” means all information disclosed by a Party to the other, whether before or after the Effective Date, that the recipient should reasonably understand to be confidential, including: (i) for the Customer : the Customer Data, the Customer marketing and business requirements, and/or the Customer financial information, (ii) for QUORTEX: unpublished prices and other terms of service, audit and security reports, product development plans, solution diagrams, data center designs, know-how and other proprietary information or technology, and (iii) for both Parties, information that is marked or otherwise conspicuously designated as confidential. Information that is independently developed by one of the Parties, without reference to the other Party’s Confidential Information, or that becomes available to one of the Parties other than through breach of the Agreement or applicable law, shall not be “Confidential Information” of the other Party.
“Customer Data” means content (including but not limited to data, audio, graphic, text and video), information or other materials of the Customer or the Customer’s clients or any other Authorized Users provided by or through the Customer to QUORTEX or that are transmitted, received, posted, stored, hosted, cached, streamed, or displayed on or through the Services or in connection with the Services.
“Documentation” means any technical documentation or user guidelines provided by QUORTEX relating to the Software or the Services.
“Fees” means QUORTEX’ fees and charges for the use of the Software and/or the provision of the Services as set forth in this Agreement, in the applicable Order Form and/or on QUORTEX’ website. Depending on the Services, Support Services or Supplementary Services purchased by the Customer Fees may include monthly recurring charges, non-recurring charges such as setup or onetime fees, or usage or burst fees.
“Intellectual Property Rights” means (i) any and all intellectual property rights and proprietary rights provided under copyright, patent rights, trade or service marks, logos, design rights, rights in or relating to databases, rights in or relating to confidential information, know-how and any other intellectual property rights (registered or unregistered) throughout the world, including those which may provide a right in either ideas, formulae, algorithms, concepts, inventions, designs, software, or know-how generally, or the expression or use of such ideas, formulae, algorithms, concepts, inventions, designs, software, or know-how; and (ii) any and all applications, registrations, licenses, sublicenses, franchises, agreements, or any other evidence of a right in any of the foregoing.
“Order Form” means QUORTEX’ Order Form, either in electronic or paper form, or any ordering document provided by QUORTEX or displayed on QUORTEX’ website and platform, or any schedule, addendum or other document to this Agreement that specifies the Services ordered by the Customer and the applicable Fees and which is accepted by both Parties.
“Party/ies” means individually QUORTEX or the Customer and collectively QUORTEX and the Customer.
“Personal Data” means any information relating to an identified or identifiable natural person.
“Support Plans” means the different available plans regarding the provision of Support Services by QUORTEX. The content, scope, duration, and financial terms of each Support Plan is provided by QUORTEX on QUORTEX’ website.
“Services” means the services provided online by QUORTEX through access to the Software and invoiced as a subscription and/or on a usage basis,as set forth in an Order Form or on QUORTEX’ website.
“Software” means the web-based non downloadable software and functionalities provided by QUORTEX to the Customer to enable the provision of Services.
“Supplementary Services” means the services purchased by the Customer from QUORTEX other than the Services, including time and materials based professional or consulting services, one-time or non-recurring services which are not part of the existing Support Plan and any other services identified as “Supplementary Services” on the applicable Order Form.
“Support Services” means the support services provided by QUORTEX to the Customer.
“Third-Party Services” means the third-party services that interoperate with the Services.
“Updates” means any minor version of the Software, developed by QUORTEX subsequent to the Effective Date, which implements minor improvements or augmentations, or which corrects failures of the Software materially to conform to the then-current Documentation.
Section 2. Purpose & Acceptance
The purpose of the Agreement is to define the terms and conditions under which QUORTEX makes the Software available to the Customer in SaaS mode.
In accordance with the terms of this Agreement, QUORTEX grants to the Customer an access to the Software and provides the Services set forth in the Order Form or in the then-current applicable QUORTEX’ commercial offer which may be referenced by the Order Form.
2.2. Acceptance of the GTCs
The Customer acknowledges having received from QUORTEX all the necessary information enabling it to assess the suitability of the Services for its needs and to take all the necessary precautions for their use.
This Agreement is effective on (i) the date of the execution of the Order Form or (ii) when the Services are subscribed online via QUORTEX’ website on the date the Agreement is accepted by the Customer (the “Effective Date”) and governs the Customer’s use of the Software and the Services.
By accepting this Agreement or accessing the Software or using any part of the Services, the Customer agrees to be bound by the terms of this Agreement.
Only an Authorized User may access the Services. By accessing the Services, the Authorized Users represent that they are authorized by the Customer, under the Customer’s responsibility, to use the Services and the Customer Data and/or take those actions the Customer submits via the Services, all of which are binding upon the Customer.
This Agreement shall supersede and replace all prior agreements and understandings, oral or written, between QUORTEX and the Customer regarding the purpose set forth in Section 2.1 (including the Customer’s own general terms of purchase or order forms).
Section 3. Access to the Software and use of the Services
3.1. User Account
The creation of a user account is required in order to access the Software and use the Services (“User Account”), which will be administered by the Customer through a password and user ID protected interface (“Login Details”).
While opening the User Account, the Customer shall provide true, accurate, current and complete information about the Customer as listed in the registration form (the “Account Data“) and the Customer shall maintain and promptly update such Account Data to keep it true, accurate, current and complete at all times. If the Customer provides any information that is untrue, inaccurate, not current or incomplete, or QUORTEX has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, QUORTEX has the right to suspend or terminate the User Account and refuse any and all current or future use of the Services (or any portion thereof).
QUORTEX shall provide an initial ID and password to the administrator chosen by the Customer; the other user login credentials shall be created by the Authorized User administrator, under the Customer’s responsibility.
These Account Data and Login Details are personal and confidential. The Customer is responsible for keeping its Account Data and Login Details confidential and not sharing them with unauthorized users. If the Customer or an Authorized User discloses its Account Data and/or Login Details to someone, the Customer shall be responsible for damages incurred by QUORTEX, the Customer, the Authorized Users or any third party resulting or in connection with any use, disclosure, additions, deletions and modifications of such Account Data and/or Login Details. If the Customer becomes aware of any unauthorized use of its Login Details or of its User Account, the Customer agrees to notify QUORTEX immediately.
3.2. List of Services
Subject to the payment of the then-current applicable Fees, QUORTEX shall provide the Services as set forth in the Order Form or as listed on QUORTEX’ website and in accordance with the GTCs.
At any time during the term of the Agreement, QUORTEX may modify the list of Services in whole or in part or their features or functionalities including discontinuing any functionality or discontinuing the Software and/or the Services completely (“Revision”).
Such Revision will be effective immediately upon QUORTEX’ notice to the Customer, which may be given by any commercially reasonable means including without limitation, posting on QUORTEX website, on the Software landing page or by email. IF ANY REVISION MATERIALLY AND ADVERSELY AFFECTS THE CUSTOMER’S USE OF THE SOFTWARE OR THE SERVICES, THE CUSTOMER MAY TERMINATE THIS AGREEMENT WHITHIN A THIRTY-DAY-PERIOD FROM THE DATE OF QUORTEX’ NOTICE OF REVISION. THE CUSTOMER’S CONTINUED USE OF THE SOFTWARE OR THE SERVICES FOLLOWING QUORTEX’ NOTICE OF ANY REVISION CONSTITUTES CUSTOMER’S ACCEPTANCE OF THIS AGREEMENT AND THE REVISION. No Revision shall release the Customer from liability for all costs already incurred pursuant to the use of the Software or the Services.
3.3. Access to the Services
The Customer must provide, at Customer’s expense, all communications services, equipment, and third-party software necessary to use the Services.
Access to the Services is subjected to the prior acceptance of the GTCs and payment of the then-current Fees depending on the different applicable options provided to the Customer (pay-per-use, etc.).
From time to time, QUORTEX may provide Customers with a credit or Promotional Credit (as defined in Section 4.6), which is automatically applied to their first and/or subsequent purchase(s) of Services.
Section 4. Financial conditions
4.1. Customer’s Order Forms
The Customer may order Services from QUORTEX pursuant to an Order Form for itself and/or on behalf of one or more of its Affiliates, subject to these GTCs.
Pricing -The Customer shall pay all Fees relating to the Services as set forth in the applicable Order Form or, if no such price is specified, the price set out in QUORTEX’ then-current standard published price list (which may be available on QUORTEX’ website).
Customer commitment discounts – QUORTEX may provide a discount in exchange for the Customer’s commitment to spend a minimum amount or use a minimum level of resources for certain Services for a specified term (“Customer Commitment”). Such discount terms and conditions may be set forth in a specific agreement or addendum to this Agreement.
4.3. Payment terms
Pricing and Payment terms vary depending on the Services and/or the Support Plans purchased by the Customer and are available on QUORTEX’ website.
Usage-based services – The Services, Support Services and/or Supplementary Services activated with usage-based charges may be invoiced in arrears at the end of the applicable Fee accrual period.
Regarding payment by credit card and direct debit (including but not limited to SEPA), QUORTEX will charge all Fees immediately at the end of the Fee accrual period.
Regarding usage-based charges, QUORTEX’ measurement of Customer’s use of the Services is final and shall prevail over Customer’s own measurement.
SEPA Direct Debit – By providing the Customer’s IBAN or confirming this payment, the Customer authorizes QUORTEX and its payment service provider (i.e., Stripe) to send instructions to the Customer’s bank to debit the Customer’s account and the Customer’s bank to debit the Customer’s account in accordance with those instructions.
Support Plans and Supplementary Services – Unless otherwise stated in a specific agreement executed by the Parties, payment terms are net thirty (30) days from the invoice date, without offsets or deductions of any kind, and payment is due in Euros.
Threshold billing – QUORTEX reserves the right to implement a threshold billing system based upon the Customer’s consumption of Services and resources. Every time the amount of accrued Fees reaches the amount set out by QUORTEX, it triggers a charge to the Customer payment method (credit card or bank account). QUORTEX reserves the right to adapt or suppress such threshold during the term set forth in Section 15.1.
Changes in pricing and billing terms – The Customer acknowledges that QUORTEX’ ability to provide the Services hereunder is in part based upon fees charged by third-party services providers and other third parties and that said fees may be increased from time to time. Therefore, QUORTEX may increase or add new Fees and charges for the Services from time to time, by updating QUORTEX’ website and/or by email if such change occurs during the use of such Services by the Customer. If QUORTEX changes the pricing for the Services, the Fees payable by the Customer will increase or decrease in accordance with any such modification upon the date specified on QUORTEX’ website or in QUORTEX’ email.
4.4. Late payments
Any invoices not paid when they reach their due date shall accrue interest based on a rate equal to three (3) times the current French statutory base rate, plus five (5) percentage points, starting from the date when the invoice becomes due and without notification. Additionally, the Customer will pay a flat rate recovery cost indemnity in the minimum amount of forty (40) Euros per unpaid invoice as well as all other costs related to the collection of payments.
Unless otherwise stated, the Fees do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). The Customer is responsible for paying Taxes, except those assessable against QUORTEX as measured by QUORTEX net income.
If QUORTEX is required by law to collect Taxes on the provision of the Services, QUORTEX will invoice the Customer for such Tax and the Customer must pay QUORTEX the amount of the Tax that is due or provide QUORTEX with satisfactory evidence of its exemption from the Tax. The obligation to pay any Taxes that the Customer may be required to pay in connection with Customer’s use of Services or Customer’s payment of amounts due to QUORTEX under the Agreement shall be borne exclusively by the Customer. The Customer must provide QUORTEX with accurate factual and adequate information and documentation (as determined by QUORTEX), to help QUORTEX determine if any Tax is due with respect to the provision of the Services.
Withholding Taxes. If applicable law requires the Customer to withhold any taxes levied on payments to be made pursuant to this Agreement (“Withholding Tax“), (i) the Customer shall, within thirty (30) days, provide QUORTEX with certified statements and receipts and any other supporting data to establish that such tax has been deducted (unless a certification of exemption obtained by the Customer exempts any payment from a tax) and (ii) the prices in the Order, shall be adjusted upwards to compensate QUORTEX for such Withholding Tax.
4.6. Promotional Credit
QUORTEX may provide the Customer with promotional credits allowing the use of specific Services designated by QUORTEX, subject to the creation of a User Account and the registration of the Customer’s billing information (“Promotional Credit”).
The Customer may not sell, license, or otherwise transfer its Promotional Credit. Notwithstanding the foregoing, the Customer may transfer its Promotional Credit to an Authorized User or an Affiliate.
QUORTEX reserves the right to suspend or cancel Promotional Credit in the event of fraud, misuse, or violation of any terms of the Agreement.
Promotional Credit is valid for the twelve (12)-month-period from the date the Customer receives the Promotional Credit code.
Section 5. Grant of license
In consideration of the payment of the Fees for the Term as defined in Section 15.1, QUORTEX grants to the Customer a worldwide, personal, non-exclusive, non-transferable, non-sublicensable, limited, and revocable license to use the Software and the Services in accordance with this Agreement.
The Customer shall not:
- use the Software and/or the Services for any purpose other than the Customer’s own internal business purposes as reasonably intended under this Agreement;
- make the Software and/or the Services available to, or use the Services for the benefit of, anyone other than the Authorized Users;
- permit direct or indirect access to or use the Software and/or the Services in a way that circumvents a usage limit;
- use the Software or the Services in a manner intended to avoid incurring Fees (including creating multiple Customer Accounts, etc.);
- make copies of the Documentation or the Software or any part, feature, function or user interface thereof;
- make any modifications, enhancements, adaptations, derivative works, or translations of the Software or Documentation;
- attempt to reverse engineer, disassemble, reverse translate, customize, or decompile the Software or component software in order to misuse, manipulate, or use the Documentation, the Software and/or the Services for purposes other than that for which it/they was/were intended, or derive the source code therefrom or for any other reason;
- combine, link or embed the Software and/or the Services into/with third-party technology or service without QUORTEX’ prior written consent;
- file any Intellectual Property Right applications pertaining to the Documentation, the Software or the Services before any competent office or authority in the world.
QUORTEX reserves the right to seek all remedies available at law and in equity for any breach of this Agreement, including the right to block the Customer’s access to the Software and/or the Services or to suspend or terminate QUORTEX’ provision of the Services to the Customer.
Section 6. Ownership
6.1. QUORTEX Intellectual Property Rights
QUORTEX owns and retains all right, title and interest, including without limitation Intellectual Property Rights, in and to the Documentation, the Software and the Services, and any other intellectual property that results from the performance of the Services other than the Customer’s Confidential Information or Customer Data. The third parties identified in the Documentation and/or an Order Form for all Third-Party Services retain ownership of their respective Third-Party Services. All rights not expressly granted under this Agreement by QUORTEX are hereby reserved by QUORTEX.
6.2. Customer Data
The Customer owns and retains all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
QUORTEX does not assess, nor monitor the Customer Data and QUORTEX cannot determine whether the Customer Data is being used or provided by the Customer legally through the Services.
The Customer is informed and declares that QUORTEX’ access to the Customer Data for maintenance purposes does not mean that QUORTEX acknowledges the legality of such content.
QUORTEX will respond to third-party claims or notices of alleged copyright infringement and may suspend or terminate the Customer’s use of the Services in appropriate circumstances as required to comply with applicable law and/or court decisions.
6.3. Commercial reference
Unless otherwise agreed in writing by the Parties, QUORTEX may, free of charge: (i) use the Customer’s name and/or logo within QUORTEX’ product literature, press release(s), social media, and other marketing materials; (ii) quote the Customer’s statements in one or more press releases; and/or (iii) make such other use of the Customer’s name and/or logo as may be agreed between the Parties. QUORTEX shall use the Customer’s name, mark or logo in a manner which is consistent with industry practice. No other title, interest or right in any Customer’s names, marks or logos is granted to QUORTEX except as provided in this Section.
6.4. Software and Services usage analytics
QUORTEX may collect, analyze, present, and visualize data on the Customer use of the Software and/or Services for the following purposes, including but not limited to: understanding the adoption of specific features, user engagement, product lifecycles, computing environments, troubleshooting.
QUORTEX reserves the right to access, collect and use, in an anonymized form, data relating to the viewing time of the Customer Data, location of the viewers of the Customer Data and logfiles (including the viewers’ IP addresses), subject to QUORTEX’ compliance of the provisions of Section 13 and 14 of these GTCs.
Unless required to provide the Services to the Customer and monitor the Customer’s compliance with the GTCs, such usage data shall be anonymized by QUORTEX.
Section 7. Use of Customer Data
By uploading, streaming or submitting the Customer Data through the Services, the Customer hereby grants QUORTEX a worldwide, non-exclusive, fully paid-up, royalty-free license to use, reproduce, reformat, display, process, stream, transmit and perform the Customer Data only in connection with the provision of the Services, features and functionalities available on or through the Services.
The Customer warrants that its Customer Data is not subject to any license terms that would purport to QUORTEX to comply with any additional obligations (including payment of royalty fees to third parties) with respect to the provision of the Services.
The Customer undertakes not to upload, download, host, display, develop, modify, stream or transmit via the Software and/or the Services any Customer Data containing (i) any virus, Trojan horse and/or malware or spyware and/or (ii) any material which constitutes or encourages conduct that could be considered a criminal offence, give rise to civil liability, or otherwise be contrary to the law and/or contain any material which is defamatory, obscene or offensive and/or (iii) any material which promotes or celebrates terrorist acts or terrorist attacks.
Section 8. Customer’s obligations and restrictions of use
The Customer declares having assessed the suitability of the Software and Services to its needs before acceptance of the Agreement, with the help of a qualified person for advisory purposes where necessary.
The Customer guarantees that each Authorized User possesses the necessary skills, knowledge and the professional expertise related to the business management fields that directly concern this Authorized User. The Customer undertakes to take all necessary precautions for the use of the Services.
The Customer shall be obliged to provide the Authorized Users with the GTCs or inform them before the beginning of use of the Software and/or the Services about the rights and obligations set forth in these GTCs. The Customer will be liable for any breach by its Authorized Users or by other third parties who violate obligations within the Customer’s control.
The Documentation, the Software, the Services, the Third-Party Services, and any deliverables related to the Services delivered under this Agreement will be used by the Customer or by the Authorized Users under its sole control, supervision, management, and under its sole responsibility.
During the Term set forth in Section 15.1, the Customer shall:
- comply with the provisions of this Agreement;
- use the Software and the Services according to the Documentation;
- be responsible for using commercially reasonable efforts to prevent unauthorized access to or use of the Software and/or the Services;
- promptly notify QUORTEX of any unauthorized access or use of the Software and/or the Services;
- be responsible for obtaining and maintaining all equipment, computer hardware and software and all telecommunications services required to access and use the Software and/or the Services and will ensure that all such equipment and services comply with the technical specifications provided by QUORTEX;
- not use the Services to store, transmit or display the Customer Data for fraudulent or criminal purposes or in violation of applicable laws and governmental regulations;
- not use the Services to store, transmit or display malicious code, spyware, malware or viruses;
- not interfere with or disrupt the integrity or performance of the Software and/or the Services or any third-party technology contained therein;
- not attempt to gain unauthorized access to any of QUORTEX’ systems or networks;
- not sell, resell, license, sublicense, distribute, redistribute, rent, or lease the Software and/or the Services without QUORTEX’ prior written consent;
- not access the Services or use the Software or the Documentation to develop a competitive product or service.
Section 9. Representations and warranties
9.1. Software and Services
Software warranty. To the knowledge of QUORTEX, the Software does not contain any malicious code, program, or other internal component (e.g. computer virus, computer worm, computer time bomb, or similar component), which could damage, destroy, or alter the Software, or which could reveal, damage, destroy, or alter any Customer Data or other information accessed through or processed by the Software in any manner.
The Customer must: (i) notify QUORTEX promptly in writing of any nonconformance under this warranty; (ii) provide QUORTEX with reasonable opportunity to remedy any nonconformance under the provisions of these GTCs; and (iii) provide reasonable assistance in identifying and remedying any nonconformance.
Services warranty. QUORTEX warrants that the Services (i) will conform in all material respects to the Documentation and (ii) will be performed in a professional workman-like manner with the skills reasonably required for the Services.
Disclaimer of Warranties. Except as otherwise stated in the “software warranty” clause above, the Software and/or Services are provided “AS IS” and “AS AVAILABLE”, without any warranty of any kind express or implied, including but not limited to the warranties of merchantability, fitness for a particular purpose and non-infringement, which the Customer hereby acknowledges and accepts.
QUORTEX DOES NOT WARRANT THAT THE SOFTWARE AND THE SERVICES WILL BE COMPATIBLE WITH ANY EQUIPMENT, SOFTWARE OR TECHNOLOGY NOT PROVIDED BY QUORTEX (OR LISTED IN THE DOCUMENTATION), OR THAT ANY RESULTS WILL BE ACHIEVED THROUGH THE USE THEREOF, OR WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, VIRUS-FREE, ACCESSIBLE, ACCURATE OR SECURE.
QUORTEX DOES NOT GUARANTEE THE CONTINUING AVAILABILITY OF THE SERVICES.
THE CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF THE CUSTOMER’S PRIVACY, DATA, CONFIDENTIAL INFORMATION, AND PROPERTY.
9.3. Third-Party Services
If QUORTEX makes a Third-Party Service available to the Customer, it is on an “AS IS” and “AS AVAILABLE” basis, and QUORTEX may cease providing it without entitling the Customer to any refund, credit, or other compensation.
Each Third-Party Service is governed by the terms of service, end user license agreement, privacy policies, and/or any other applicable terms and policies of the third-party provider. The Customer’s access or use of a Third-Party Service is solely between the Customer and the applicable Third-Party Service provider.
QUORTEX will not be directly or indirectly responsible or liable to the Customer in any manner, for any harms, damages, loss, lost profits, special or consequential damages, or claims, arising out of or in connection with the installation of, use of, or reliance on the performance of any of the Third-Party Services.
Section 10. Maintenance – Support Services- Service availability
To ensure optimal performance of the Services, QUORTEX performs periodic maintenance. In most cases, such maintenance will have limited or no negative impact on the availability and functionality of the Services.
QUORTEX may, in its sole discretion, make corrective measures, enhancements, Updates or Upgrades of the Software available through the Services from time to time in order to maintain, enhance or improve the functionality or operation of the Software and/or the Services or comply with legal requirements or court decisions.
The Customer will communicate any difficulties encountered with the Services to QUORTEX as soon as is reasonably practicable following detection.
10.2. Support Services
Subject to the execution of a specific agreement and in consideration of the payment of the then-current support Fees, QUORTEX will provide Support Services to the Customer (“Service Support Agreement”).
Unless otherwise agreed in the Support Service Agreement, if the Customer downgrades or upgrades its Support Services level during any calendar month, QUORTEX may continue to provide Support Services at the same level and for the same Support Services Fees as applied before the downgrade or upgrade for the remainder of that month.
10.3. Services availability
QUORTEX shall use commercially reasonable efforts to maximize the availability of the Services.
QUORTEX may set certain availability objectives in accordance with the Support Plans published on QUORTEX’ website and/or with the provisions of a specific agreement (including service level agreements) executed with the Customer.
The Customer acknowledges that the Services may be suspended or interrupted during any scheduled or unscheduled maintenance procedure performed by QUORTEX (QUORTEX will endeavor to provide seven (7) days’ advance notice of service-affecting scheduled maintenance).
Despite QUORTEX’ endeavors, the Software and/or the Services may be unavailable due to events outside of the direct control of QUORTEX or its subcontractor(s), including any force majeure event, the failure or unavailability of Customer’s systems, network equipment failures, hostile network attacks, the Internet, Third-Party Services and the failure of any other technology or equipment used to connect to or access the Services.
Section 11. Liability
11.1. Liability cap
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO A FINAL DECISION FROM A COURT OF COMPETENT JURISDICTION, QUORTEX’ TOTAL LIABILITY, FOR ANY REASON WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING THE USE OF THE SOFTWARE AND THE SERVICES) SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT OF FEES EX VAT PAID BY THE CUSTOMER TO QUORTEX FOR THE SOFTWARE AND/OR THE SERVICES DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE LIABILITY; EXCEPT QUORTEX’ TOTAL AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO SERVICES OR SOFTWARE PROVIDED FREE OF CHARGE TO THE CUSTOMER IS LIMITED TO 5 000 EUROS.
IN ACCORDANCE WITH ARTICLE 2254 OF THE FRENCH CODE CIVIL, ANY ACTION, DISPUTE OR DEMAND OF ANY KIND AGAINST QUORTEX IN CONNECTION WITH AND/OR ARISING FROM THE AGREEMENT, MUST TAKE PLACE WITHIN A MAXIMUM OF ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO LIABILITY.
11.2. Exclusion of damages
EXCEPT WITH RESPECT TO (A) BREACHES OF THE CUSTOMER’S OBLIGATIONS SET FORTH IN SECTION 8 (CUSTOMER’S UNDERTAKINGS), SECTION 13 (CONFIDENTIALITY) AND SECTION 12 (THIRD-PARTY CLAIMS); AND (B) DAMAGES ATTRIBUTABLE TO THE CUSTOMER’S MISAPPROPRIATION, VIOLATION OR INFRINGEMENT OF QUORTEX’ INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, DAMAGES RESULTING FROM LOSS OF DATA, SECURITY BREACH, PROPERTY DAMAGE, LOST REVENUE, LOST SAVINGS OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PERFORMANCE OF THE SOFTWARE OR QUORTEX’ PROVISION OF SERVICES OR OF ANY OTHER OBLIGATIONS RELATING TO THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTHING IN THIS AGREEMENT LIMITS OR EXCLUDES EITHER PARTY’S LIABILITY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY FRAUD OR FRAUDULENT MISREPRESENTATION, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
QUORTEX disclaims all warranties and liability for any damages incurred by the Customer, the Authorized Users or by any third party relating to the Software and/or the Services when caused by:
- the Customer’s non-compliance with the terms and provisions of the Agreement;
- the Customer’s non-compliance with the Documentation;
- the upload, use, stream or display of the Customer Data;
- use of the Software in an improper or inappropriate operating environment which does not conform to the Documentation;
- use of the Software in combination with, in connection with or as integrated into software, hardware or equipment which is not the Customer system, unless such combination connection or integration has been expressly approved in writing by QUORTEX;
- use of the Software or the Services for a purpose other than that for which it is intended to;
- a weakness, flaw or breach in the security of Customer’s system not directly and exclusively caused by the Software;
- delays, interruptions and disruptions of network and/or Internet transmissions;
- any failure, delay or interruption of the Third-Party Services;
- force majeure events.
THESE PROVISIONS SETTLE AN ALLOCATION OF RISKS BETWEEN THE PARTIES. SUCH LIMITED REMEDIES AND LIMITED LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN QUORTEX AND THE CUSTOMER. QUORTEX WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE AND/OR THE SERVICES WITHOUT SUCH LIMITATIONS.
Section 12. Third-party Claims
12.1. Indemnification by QUORTEX
QUORTEX shall defend, indemnify, and hold the Customer harmless against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities awarded to a third party arising out of any non-frivolous claim by a third party during the Agreement (a “Claim”) that the Software or the Services when used in accordance with the provisions of this Agreement and the Documentation, infringe(s) a third-party copyright, provided that the Customer gives QUORTEX (a) prompt written notice of such claim; (b) sole authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as QUORTEX may reasonably request, at QUORTEX’ expense, in connection with such defense and/or settlement.
Upon the occurrence of any Claim, or in the event that QUORTEX believes that such a Claim is likely, QUORTEX may, at its option (i) appropriately modify the Software or the Services so that it/they become(s) non-infringing, or substitute functionally equivalent software or services; (ii) obtain a license to the applicable third-party intellectual property rights; or (iii) terminate this Agreement on written notice to the Customer and refund to the Customer an amount equal to the Fees ex VAT paid by the Customer for such Software during the six (6) month period preceding the date of the termination notification.
QUORTEX will have no obligation under this Section 12.1 or otherwise with respect to any Claim based upon: (i) any use of the Software or the Services not in accordance with this Agreement or the applicable Documentation; (ii) any use of the Software or the Services in combination with third-party products or services not supplied by QUORTEX; or (iii) any modification of the Software or the Services by any person other than QUORTEX or its authorized agents.
THIS SUBSECTION SETS FORTH QUORTEX’ SOLE AND EXCLUSIVE OBLIGATIONS, AND THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
12.2. Indemnification by the Customer
The Customer agrees that the Customer will be responsible for its use and the Authorized Users’ use of the Software and the Services, and the Customer agrees to defend, indemnify, and hold harmless QUORTEX and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with the (i) Customer’s access to, use of, or alleged use of the Software and/or the Services; (ii) the Customer’s breach of this Agreement or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) the Customer’s violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between the Customer and any third party.
QUORTEX agrees to give the Customer (a) prompt written notice of such claim; (b) sole authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as the Customer may reasonably request, at the Customer’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, the Customer shall not settle any third-party claim against QUORTEX unless such settlement completely and forever releases QUORTEX with respect thereto or unless QUORTEX provides its prior written consent to such settlement. In any action for which the Customer provides defense on behalf of QUORTEX, QUORTEX may participate in such defense at its own expense by counsel of its choice.
Section 13. Confidentiality
The receiving Party will protect all Confidential Information of the disclosing Party as strictly confidential to the same extent it protects its own Confidential Information, and not less than a reasonable standard of care. The Receiving party will not disclose any Confidential Information of the disclosing Party to any person other than its personnel, representatives or Authorized Users whose access is necessary to enable it to exercise its rights or perform its obligations under the Agreement and who are under written obligations of confidentiality substantially equivalent to those herein. The Customer will not disclose the Agreement or the pricing to any third party.
Confidential Information will not include information that: (i) is or becomes known to the public without breach of this Agreement by the receiving Party; (ii) is already known to or in the possession of the receiving Party at the time of disclosure; (iii) is independently developed by or for the receiving Party as evidenced by the receiving Party’s own files and records; (iv) is rightfully obtained by the receiving Party from a third party that was lawfully in possession of the information and had the right to disclose the same; or (v) the Parties mutually agree in writing to release from the terms of this Agreement. Confidential information will not be deemed to be publicly known merely because all or a portion of such information is embodied in general disclosures or because individual features and/or components (or the combination of such features and components) are or become known to the public.
Section 14. Privacy
Both Parties shall comply with all applicable laws relating to data processing and privacy. The Customer agrees to and shall abide by the provisions set forth in the “Data Processing Addendum” then in effect at the following URL: https://www.quortex.io/privacy-policy
Section 15. Term and termination
The term of this Agreement will begin on the Effective Date and continue until the deletion of the User Account, unless earlier terminated in accordance with the provisions of Section 15.2 and Section 16.
The Customer may stop using the Services at any time and may terminate this Agreement by sending a termination notification to QUORTEX customer services in order to delete its User Account.
In the event of Customer Commitments, the Customer commits to use the Services for the specific agreed term.
b) Support Services or Supplementary Services
The initial term of the provision for Support Services or Supplementary Services will begin on the Effective Date and will continue for the period set forth (a) on QUORTEX’ website or (b) in the Support Services Agreement executed or (c) in the Supplementary Service Agreement executed by the Parties (“Initial Term”).
The Support Services or Supplementary Services Agreement will automatically renew for successive periods equal in length to the Initial Term (a “Renewal Term”), unless either Party notifies the other of its intent not to renew at least thirty (30) days prior to the expiration of the then-current Initial Term or Renewal Term, as applicable.
15.2. Termination for cause
This Agreement and all rights granted by QUORTEX hereunder may be terminated by either Party if the other Party has breached any terms of this Agreement and fails to cure such breach within thirty (30) days of a non-breaching Party’s notice thereof.
Notwithstanding the foregoing, without prejudice to QUORTEX’ other rights accorded to it by this Agreement or by law, QUORTEX may immediately terminate the Agreement by written notice to the Customer, in the event of (i) breach of the provisions of Section 5 and Section 8 or (ii) if the Customer fails to pay the Fees as specified in the Order Form.
15.3 Termination for inactivity
QUORTEX reserves the right to terminate the provision of the Services upon thirty (30) days’ advance notice if, for a period of ninety (90) consecutive days (a) the Customer has not accessed the User Account or such User Account had no network activity and (b) such use of the Services has not incurred any Fees for such Services.
15.4. Effect of termination
Services – Upon termination or expiration of an Order Form or this Agreement: (a) all amounts owed to QUORTEX by the Customer will be immediately due and payable; (b) all licenses and rights granted by QUORTEX under this Agreement (including the Order Form) shall immediately terminate; (c) the Customer shall immediately discontinue all use of the Software and the Services and (d) the User Account shall be deleted.
Customer Commitment – If the Customer notifies QUORTEX of the cancellation of the Customer’s commitment of use as set forth in Section 4.2, the Customer agrees to pay QUORTEX the amount of Fees that would be due for the remaining term, without set-off or discount.
Support Services and Supplementary Services – Support Services or Supplementary Services shall be terminated in accordance with the provisions of the Support Service Agreement or the Supplementary Agreement.
All Confidential Information of the other Party provided in connection with this Agreement in the possession of such Party shall, subject to any legal retention rights and upon request of the other Party be returned to the disclosing Party or destroyed with certification of such destruction from an individual of authority to bind the respective Party.
Section 16. Suspension of Services
QUORTEX may suspend the provision of the Services to the Customer, without liability if:
- QUORTEX reasonably believes that the Services are being used in breach of the Agreement or detects patterns of abnormal use of the Services;
- the Customer does not cooperate with QUORTEX’ reasonable investigation of any suspected violation of the Agreement;
- the Customer is in breach of its payment obligations under Section 4;
- QUORTEX is required by law or a court decision to suspend the provision of the Services; or
- there is another event for which QUORTEX reasonably believes that the suspension of Services is necessary to protect QUORTEX’ network or its other customers.
QUORTEX will give the Customer advance notice of a suspension under this clause of at least twelve (12) business hours unless QUORTEX determines in its reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect QUORTEX or its other customers from imminent and significant operational or security risk.
QUORTEX will use commercially reasonable efforts to restore the Customer’s access to the Services promptly following resolution of the cause of such suspension.
Section 17. Changes to GTCs
The Customer acknowledges that QUORTEX may at its discretion and at any time, modify in whole or in part the GTCs:
- in line with any Revision or changes implemented by QUORTEX in the Software and/or the Services in accordance with Section 3.2; or
- to reflect any changes in applicable law, without any loss of quality or changes to fundamental Services characteristics for the Customer.
Minor changes without materially changing the Customer’s rights shall be directly implemented in the GTCs available on QUORTEX’ website and will become effective immediately.
The Customer will receive thirty (30) days prior written notice for an amendment of GTCS, as follows: any material changes to the GTCs shall be sent to the Customer (i) by email with a link to the modified GTCs displayed on QUORTEX’ website or in a PDF file or similar compatible format, or (ii) as a pop-up display on the device screen when the Software is launched, making Software or Services use subject to the Customer’s acceptance of the modified GTCs.
Any modification or amendment of these GTCs will become effective after the expiration of the thirty (30)-day notice period. Using the Software and/or the Services after notification of the modified GTCs shall imply unreserved acceptance of the said changes by the Customer.
The Customer is advised to frequently consult the GTCs on QUORTEX’ website and to save the latter version on durable media.
Section 18. General provisions
18.1. Entire Agreement
Except as otherwise set forth herein, the GTCs constitute the entire and exclusive Agreement between the Parties regarding the access and use of the Software and/or the Services. The GTCs replace and supersede any prior oral or written agreement between the Parties regarding the same subject matter.
The Customer expressly acknowledges that additional and/or specific terms may apply to certain products or services provided by QUORTEX. In the event of any discrepancies or contradictions between these GTCs and those specific terms, the latter will control.
If any provision of the GTCs is held invalid or unenforceable by a court of competent jurisdiction, the invalid or unenforceable part or provision will be enforced to the maximum extent permissible by applicable law and the other provisions of these GTCs will remain in full force and effect.
18.3. No waiver
Failure by QUORTEX at any given time to invoke one of the clauses or provisions hereunder shall not be deemed to constitute a waiver of QUORTEX’ subsequent right to invoke the same clause.
QUORTEX may assign the Agreement or any part of it, and may delegate any of its obligations under the Agreement, as long as the assignee has agreed to be bound by the terms of this Agreement. The Customer may not assign the Agreement or any part of it, nor transfer or sub-license its rights under the Agreement, to any third party without QUORTEX’ prior written agreement.
18.5. International use of the Services
The Customer represents and warrants that the Customer is not located in or is a national of any country that is embargoed or highly restricted under export regulations or are otherwise an entity to whom QUORTEX is legally prohibited to provide the Services.
The Customer represents and warrants that the Customer will not possess, use, import, export or resell (and shall not permit the possession, use, importation, exportation, or resale of) the Services or any information or technical data provided by QUORTEX to the Customer under this Agreement in any manner which would cause QUORTEX to breach any applicable export control laws, rules, or regulations of any jurisdiction. The Customer undertakes not to access and use the Software and/or the Services from locations where such access and/or use is illegal or prohibited.
If the Customer choose to access or use the Software and/or the Services from a location outside France, such Customer shall be responsible for compliance with all applicable laws and regulations (including those relating to the transition of technical data exported from or imported to the country in which the Authorized Users or the Customer’s client resides).
QUORTEX makes no representation that the Software and/or the Services are appropriate or available for use in location outside France.
18.6. Notice & contact information
For any questions or notifications regarding the Agreement and the provision of Services, the Customer shall contact QUORTEX’s customer service in accordance with contact details set forth on QUORTEX’ website.
Section 19. Governing Law – Dispute resolution
19.1. Governing law
The execution, validity, interpretation, performance and termination of the Agreement, the use of the Software and any Services shall be governed by and construed in accordance with the laws of FRANCE, excluding all choice of law provisions. The Parties explicitly exclude the applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
19.2. Dispute resolution
From receipt of the written notification by one Party to the other (the “Dispute Notification”), the Parties shall endeavor to settle any dispute arising out of or in connection with this Agreement, through an out-of-court dispute settlement process before commencing any formal proceedings. Failing an amicable settlement within thirty (30) days of the receipt of the Dispute Notification, the dispute shall be submitted by the first Party to take action to competent Court in the jurisdiction of the Superior Court (« Cour d’appel ») of RENNES (FRANCE), notwithstanding multiple defendants or action against a guarantor.