• "Order" means, depending on the case, any commercial proposal made by the Contractor and accepted by the End User, or any purchase order issued by the End User. These financial documents are considered as annexed to these Terms by reference.
• "Documentation" means the printed or electronic documentation, including installation and operating manuals relating to the SOFTWARE.
• "SOFTWARE" means the executable code of any EDITAG software - including all corrections, updates, new versions - of which the End User purchased a license to use, and all documentation relating thereto.
• "Platform" means the specific hardware and software combination as certified by EDITAG and belonging to the End User, in which the SOFTWARE is installed and/or from which the End User can access and use the SOFTWARE. The list of certified platforms is provided to the End User by the Service Provider. This list is subject to change and evolve at EDITAG's discretion.
• "Service" means the individual or legal entity from whom the End User has purchased the license to use the SOFTWARE.
• "End User" means the individual or legal entity to whom the license to use the SOFTWARE has been granted, and its agents.
2 LICENSING AGREEMENT
These Terms set out the conditions of concession, to the End User and by EDITAG, of one or more licenses to use their SOFTWARE and of related documentation, as described in an Order and corresponding invoice. Each Order shall be deemed a separate license to use, giving the right to use, under the terms and conditions herein, the SOFTWARE that is referenced. The SOFTWARE is in no way sold, but its use is licensed under a fixed license (2.1) or a rental license (2.2). In any case, the license is personal to the End User and cannot be transferred or loaned to others; any other use of the SOFTWARE is strictly prohibited. The use of the SOFTWARE is thus only intended to cover the End User's internal and business purposes, which excludes any shared service or office service. Unless otherwise specified, the SOFTWARE delivery does not include its installation, configuration, adaptation, personalization or any changes to make it suitable to the needs of the End User.
2.1 Fixed License
EDITAG grants the End User a personal, limited, non-transferable and non-exclusive right to install and use one copy of the SOFTWARE in its executable form on a certified platform, subject to full payment of a fixed license. The SOFTWARE is available in digital format and the version delivered is the one that was ordered or was in effect on the shipment date. The SOFTWARE is considered accepted on the date it is delivered to the End User, subject to the provisions of the guarantee provided below.
2.2 Rental License
The End User is granted a personal, limited, non-transferable and non-exclusive access to the SOFTWARE and to its use via the Internet for the duration specified in the Order, subject to full payment of a rental license. EDITAG may change its rates at the end of each rental license. Following the notification, the End User then has a thirty (30) working days period to inform EDITAG of his acceptance or refusal of the new rates. If no refusal is made during this period, the End User shall be deemed to have permanently accepted these new rates. Otherwise, the parties will negotiate to reach an agreement regarding the new rates. If the parties fail to reach an agreement, the rental license shall be deemed terminated.
The SOFTWARE must be installed and/or used in an environment that meets the initial requirements set by EDITAG. The End User agrees to comply with its instructions and recommendations as well as with all later updates. Any use not specifically provided for herein is prohibited and, in particular but without limitation, the End User agrees not to (nor to permit any third party to) (i) install and use the SOFTWARE for purposes other than those described in the Documentation, (ii) make another copy, reproduce, alter, adapt, translate in any way whatsoever or integrate into another software, all or part of the Software or Documentation; create derivative works from the SOFTWARE; disassemble, reverse engineer or attempt to discover the source code (deemed strictly confidential), (iii) alter the SOFTWARE in any way, even to correct errors it may contain, this right being reserved exclusively by EDITAG, (iv) distribute, sublicense (giving away or selling), broadcast, concede, rent, lend, lease, sell, lease-purchase or otherwise transfer, even for free, all or part of the SOFTWARE by any means, to anyone, (v) remove, conceal or alter any mention of ownership, label or legal notice, such as the mention of trademarks or of copyrights affixed to or in the SOFTWARE's credits or in related Documentation. EDITAG expressly reserves the right to correct any errors that may be in the SOFTWARE to the extent necessary to ensure proper SOFTWARE use in accordance with its Documentation and destination, but also the right to adapt, edit and improve the SOFTWARE or its Documentation, or to stop its circulation, without notice and without obligation to notify anyone.
3.2 Technical details relating to the rental license
As part of the rental license, EDITAG provides the End User an access to the SOFTWARE according to the terms set out in the Order and in the Documentation, excepted during interruptions required for maintenance and during potential breakdowns or interruptions due to Internet-related technical constraints. EDITAG may in no way be liable for all of these above-mentioned maintenance periods and other constraints-related interruptions, nor may the End User be entitled any compensation. A username and an access code are personally assigned to the End User. These username and access code are strictly personal and the End User promises to keep them confidential and not to reveal them. The End User shall guarantee, on its behalf and on behalf of its employees or any third party chosen by him, the proper use of the ID and access code provided by EDITAG, as well as the non-disclosure of passwords and other settings that secure the SOFTWARE's use. As part of this license, the End User must access a telecommunications network to access and use the SOFTWARE. EDITAG is not responsible for this service which must be provided by a telecom operator; the End User will choose, and be responsible for, this operator. The End User is also responsible for installing and configuring the platforms required to access and use the SOFTWARE. As part of this license, the End User further agrees to only host on the EDITAG servers data that he owns or is authorized to hold. EDITAG is prohibited from disclosing the content of this data and ensures that it may solely and exclusively be accessed through the platforms designated by the End User. EDITAG provides data hosting, backup and storage services to the End User. EDITAG can freely subcontract all or part of its obligations to one or more sub-contractors of its choice and will remain responsible for executing these obligations. The End User agrees to use the data according to the forms and methods specified by EDITAG. He accepts that EDITAG reserves the right to reject data that may affect the operation of, or otherwise not comply with, the SOFTWARE, without this meaning that EDITAG is required to check said data. The End User is required to provide data free of viruses and ensures not to infringe upon any third party rights (trademark rights, image rights, copyrights, neighboring rights, consumer rights, etc.). The End User is responsible for any direct, indirect, material and/or intangible damages that may result from his breach or negligence. EDITAG reserves the right to edit or discontinue access to the SOFTWARE, particularly for maintenance, update or improvement reasons, or to change the content. It will in no way be liable or have to compensate users for this, although if possible, EDITAG will endeavor to implement reasonable available economic means to minimize possible inconvenience.
It is forbidden by law to make unauthorized SOFTWARE copies or to thwart any technology protection against copying that would be included in the SOFTWARE. Unless this copy is included with the SOFTWARE, the End User is allowed to make a single, legally allowed backup copy provided that all copyright notices or other property rights be reproduced on it. This copy may only be used for archiving purposes. Unless expressly stated otherwise, the End User remains responsible for the safety and care of this single copy once it has been made and is not authorized to make additional SOFTWARE copies, including of the documents that come with it.
4 INTEROPERABILITY-RELATED LIMITATIONS
Pursuant to Article L.122-6-1 IV of the Intellectual Property Code, the End User is not authorized to decompile the SOFTWARE to make it interoperable with hardware or other software unless they have informed EDITAG in writing beforehand and unless the information necessary to achieve interoperability are available or unless EDITAG implements reasonable efforts to supply them to him. In any event, the End User agrees not to infringe the intellectual property rights that are attached to the SOFTWARE and to meet the legal and documented requirements of the SOFTWARE and of its destination before searching for or requiring any interoperability.
5 SOFTWARE MAINTENANCE
6.1 LIMITED SOFTWARE WARRANTY
No warranty is given by EDITAG on hardware that may be provided and/or used with the SOFTWARE, and which is subject to any manufacturer or other company. As the SOFTWARE concerns a particularly complex computer technology area, and considering the current state of knowledge, it cannot physically be tested for all possible uses and no warranty other than the ones described below may be offered. The SOFTWARE's operation, when it is correctly installed and/or used on certified platforms, has not been modified and is regularly updated, is guaranteed to meet the functional and technical specifications described in the Documentation for a period equal to the duration of the maintenance service that was ordered.
6.2 Exclusion of all other warranties
This warranty is not applicable if the SOFTWARE's lack of conformity is the result of an accident, of usage-related deterioration, of improper use or of a non-certified platform. Any warranty other than the one described above is excluded. In particular, the SOFTWARE's adequacy - for all the needs and requirements of the End User and within its sole discretion - may not be guaranteed. THE SOFTWARE IS PROVIDED "AS IS" IN VIEW OF ITS QUALITY, ITS OPERATION AND PERFORMANCES. The End User has received from his Service Provider, before ordering, all of the necessary information to allow him to know the SOFTWARE and ensure that it can adequately satisfy his needs. He acknowledges and agrees that it is impossible to guarantee that (i) the SOFTWARE suits all combinations that the End User may choose, (ii) it runs in any operating environment, and (iii) that it may be used without interruption or error, or that any errors can and will be corrected. EDITAG is not be liable for (i) SOFTWARE defects and/or alterations and for the consequences that may result from improper SOFTWARE use by the End User; (ii) an inadequate SOFTWARE intervention; and/or (iii) SOFTWARE use or assembly with a component or with a third incompatible or non-certified system (especially if the defect was caused by a malfunction from the End User's Platform). EDITAG disclaims any obligation, express or implied, with respect to the SOFTWARE, particularly in terms of, but without limitation: use, performance or results, merchantability, satisfactory quality, fitness for a particular purpose, or lack of counterfeiting. EDITAG has a general obligation of means for all the services it provides in connection with these Terms.
7 DISCLAIMER AND LIABILITY LIMITATION
To the fullest extent permitted by applicable law, the limitations and disclaimers herein shall apply, and this regardless of the basis of liability. In no case can editag be held responsible by the end user, including for any claim made by a third party for any claim or cost related to all indirect damages including, without limitation, any loss of earnings, operating loss, profits loss, data loss, records or contents loss, any business interruption, any records or contents being rendered inaccurate resulting from the software and its documentation, from using the software or from the impossibility to access and/or use it; from its maintenance or from the impossibility to provide it, or from a failure of the program to operate with any other programs, even if editag has been advised of the possibility of such damages. In no event shall there be obligation nor liability on the part of editag for any damages other than direct damages that they are proven to be accountable for, within the following limit. In any event, editag's entire liability shall be limited and shall in no case exceed the amount actually paid by the end user for the use of the software.
8 PROPERTY AND COPYRIGHT
The SOFTWARE is protected by copyright laws and international treaties on copyright, and by other laws and international treaties on intellectual property. All copyrights and other rights regarding, in particular, intellectual and industrial property, patents, trademarks, trade secrets, know-hows, concepts and inventions, any interest, covered or not by the applicable law, concerning the SOFTWARE and all copies, modifications, enhancements, corrections, updates or new versions, are and remain at any time reserved by EDITAG. All intellectual property rights and other rights relating to third party Software components integrated into the SOFTWARE which are held by their respective owners can be protected by copyright and intellectual property laws and international treaties and be subject to specific conditions foreseen by license texts reproduced in the <Installation directory>/licenses folder. This license agreement does not grant any rights to use such content without the SOFTWARE. The End User agrees not to directly or indirectly damage the intellectual property rights relating to all or part of the SOFTWARE.
9 DURATION AND TERMINATION
In the case of a fixed license, the right to use the SOFTWARE remains valid throughout the duration of the SOFTWARE's legal protection. In any event, without prejudice to any other damages it could claim, EDITAG reserves the right to terminate any license to use, ipso jure and without legal recourse, or any obligation or other liability if the End User does not respect these Terms or any other terms relating to the SOFTWARE, and this by giving a notice of fifteen (15) days or of a length equal to one third of the duration of the license, the shortest period being applicable. As of the termination, for any cause whatsoever, the End User must immediately (i) remove the SOFTWARE from the Platforms where it was installed, or from any other computer system, tool storage or file and/or stop using it in any way, (ii) destroy or return all copies of the SOFTWARE to EDITAG, including any copies and all Documentations and (iii) certify in writing that these obligations will be met. The rights and obligations which, by their nature, will continue after the termination of this license will remain in effect.
10 APPLICABLE LAW AND JURISDICTIONAL COMPETENCE
This license agreement is subject to French law, excluding the Vienna Convention on International Sale of Goods. Any dispute relating to this contract and to its developments, particularly with regard to its interpretation, performance or termination, will be submitted to the Commercial Court effective in the location of EDITAG's headquarters to which competence is expressly attributed notwithstanding plurality of defendants, recourse in warranty, including for procedures upon request or for emergency procedures.
11 GENERAL PROVISIONS
The lack of exercise, the partial exercise or the delay in exercising rights under these Terms does not constitute a waiver of these rights, or a waiver of any other rights. Any waiver or modification of the Terms will only be effective if provided in a written document. Shall any provision of the Terms be deemed invalid, it shall be deemed unwritten but other provisions shall remain in full force and scope, unless the cancelled provision is essential to EDITAG in which case the contract shall be deemed terminated as a whole.
The End User acknowledges and agrees that these Terms constitute a license agreement and all the rights and obligations governing the use of the SOFTWARE replacing any proposal or prior agreement, written or oral.