General terms and conditions of software service
Valid until November 7, 2018. View current version.
1 RECITALS
1.1 Fujitsu RunMyProcess has designed and developed a standard software application (the “Software”) allowing authorized users to (i) design, (ii) develop and (iii) host specific applications (the “Applications”). The Software can be used in industries as diverse as the telecommunication, automotive and mass retail distribution industries.
1.2 The Beneficiary, identified in the Order Form, and its Affiliates wish to obtain the right to use the Software and, more generally, to benefit from the services offered by Fujitsu RunMyProcess so as to design and develop one or more specific Applications of their own, under the following conditions, subject to any express provisions to the contrary that may be contained in the Order Form.
2 DEFINITIONS
2.0 In addition to terms that may be defined elsewhere in the Agreement, the following capitalized terms, when used in the Agreement, shall have the meaning ascribed to them below.
2.1 Affiliates
Means all legal persons controlling or controlled by the Beneficiary within the meaning of section L.233-3 I of the French Commercial Code, and the Beneficiary’s contractual partners (clients, suppliers, service providers and/or agents). Acting as the sole signatory of the Agreement with Fujitsu RunMyProcess, the Beneficiary warrants and guarantees compliance by the Affiliates with all of the provisions of the Agreement, including the amount of the Fee and provisions concerning the terms of use of the Service.
2.2 Applications
Means the computer programs that are designed and developed solely by the Beneficiary using the Software in the scope of the Service. The Applications shall be the property of the Beneficiary, subject to the rights of Fujitsu RunMyProcess to the Runtimes.
2.3 Order Form
Means the document detailing the special terms and conditions on which Fujitsu RunMyProcess agrees to deliver the Service to the Beneficiary. The Agreement may not become effective before express prior acceptance of (i) the Order Form and (ii) the general terms and conditions of software service, by the Beneficiary and by Fujitsu RunMyProcess.
2.4 Agreement
Means all of the provisions contained in these general terms and conditions of software service and in an Order Form, each of which shall have been duly accepted by the parties, it being specified that the recitals and any possible schedules hereto form an integral part hereof.
2.5 Start Date
Means the date set in the Order Form as of which the Service shall be accessible online by the Beneficiary and the Affiliates.
2.6 Software
Means the software (Runtimes included) enabling Fujitsu RunMyProcess to deliver the Service to the Beneficiary.
2.7 Partners
Means the contractual partners of the Beneficiary (service providers, subcontractors, users such as Internet users and/or consumer “end-users”, etc.) whom the Beneficiary wishes to have access to the Applications and be able to use them, free of charge or at a fee. The Beneficiary is solely liable for compliance with the Agreement by the Partners and warrants, without any restriction or reservation, that the Partners shall comply with all of the provisions of the Agreement.
2.8 Fee
Means the amount owed by the Beneficiary to Fujitsu RunMyProcess in consideration of the right to benefit from the Service.
2.9 Runtimes
Means the Software features that are integrated in the Applications. The Applications cannot run without the Runtimes.
2.10 Service
Means the right for the Beneficiary and its Affiliates to use the Software remotely under the conditions laid down in the Agreement, so as to (i) design and (ii) develop one or more Applications and (iii) use them. The Service comprises hosting services for the Software and the Applications and a guarantee of availability carrying penalties for noncompliance. All of the services comprising the Service form an indivisible whole for Fujitsu RunMyProcess.
2.11 Users
Means the individuals, in the employment of the Beneficiary, of an Affiliate or of a Partner, who are authorized to use the Service, the maximum number of whom is set in the Order Form. A User corresponds to an active login, any deactivated user not being included in the calculation of the number of Users. Noncompliance by a User with the terms of use of the Service may entail the immediate suspension of the relevant User’s account and, as a result, the impossibility for the latter to use the Service.
3 PURPOSE
3.1 The purpose of the Agreement is to define the terms and conditions on which Fujitsu RunMyProcess shall deliver the Service to the Beneficiary (including its Affiliates and/or Partners, if any) in consideration of payment of the Fee. Only the Beneficiary’s Administrator, acting under the Beneficiary’s responsibility, may designate the Users authorized to access the Software and/or the Applications, as the case may be, and has the right to grant them access to the Service.
3.2 The Service comprises the nonexclusive and nontransferable right to use the Software and the Applications for the Contractual Term defined in the Order Form, without any right to sublicense, assign, transfer or make them available to any third party other than an Affiliate or a Partner, free of charge or for a fee, irrespective of the practical or legal arrangements thereof.
3.3 The Service, the Software and the Applications may only be used:
(i) remotely on the hosting site chosen by Fujitsu RunMyProcess, with the access codes supplied by Fujitsu RunMyProcess;
(ii) so as to design, develop and use one or more Applications, the Beneficiary expressly agreeing not to make any use of the Service for the purpose of testing, directly or indirectly, its performance or security (intrusion test, etc.);
(iii) within the limit of the metrics contained in the Order Form (number of Users/processes/Applications, etc.), the Beneficiary agreeing not to make any use of any hardware or software permitting to benefit from the Service beyond the contractually agreed metrics or in a way not contemplated in this Agreement.
3.4 The Software, the Applications and the data of the Beneficiary shall be hosted with a specialized service provider possessing a technical infrastructure and hardware and software monitoring tools complying with industry standards. The application and user data shall be hosted on a “cloud computing”-type solution reducing any risk of reliance on a physical hosting environment (service provider or servers in a data center). Fujitsu RunMyProcess hereby agrees to ensure the availability of the Service under the conditions contractually guaranteed to it by its host, as provided (on the date of signature the Agreement) in a schedule hereto for information purposes. The hosting cost is included in the Fee.
4 CONTRACTUAL TERM
4.1 The Agreement shall form a binding contract as of the date of its acceptance (signature of a “paper” copy or online acceptance) by the two parties. It shall become effective (i) as of the Start Date indicated in the Order Form for the term determined in the Order Form (the “Initial Term”) (ii) provided the Beneficiary has previously accepted the Agreement without any reservation, either by signing a “paper” version of the Agreement (general terms and conditions of software service and Order Form), or by accepting the Agreement online (general terms and conditions of software service and Order Form), THE BENEFICIARY EXPRESSLY ACCEPTING THAT COMPUTER RECORDINGS BY FUJITSU RUNMYPROCESS SERVE AS PROOF OF THE BENEFICIARY’S CONSENT.
4.2 At the end of the Initial Term, the Agreement shall be automatically extended for successive periods of a fixed duration of one (1) year, up to a total maximum duration, Initial Term included, of three (3) years, unless earlier terminated by either of the parties by complying with the notice period set in the Order Form, prior to the anniversary date of the contractual period underway.
5 FINANCIAL TERMS
5.1 The amount and the terms of payment of the Fee are detailed in the Order Form and expressed exclusive of VAT. The Beneficiary shall be solely liable for payment of the Fee and of any tax and/or levy in connection with the performance of the Agreement, including those chargeable to its Affiliates and Partners. The Fee is payable in advance.
5.2 Fujitsu RunMyProcess’s receivables are payable at its address and on the debtor’s initiative. Any amount past due more for more than thirty (30) days, despite a final payment request sent by Fujitsu RunMyProcess to the Beneficiary, shall entitle Fujitsu RunMyProcess to suspend the Service and/or terminate the Agreement.
5.3 In case of nonpayment within the contractual time limits, any past due amount shall automatically carry interest on a day-to-day basis until the date of full payment of the principal, interest, fees and incidentals owed, at a rate equal to three (3) times the legal interest rate, without the need for any prior formality, and without prejudice to any damages that Fujitsu RunMyProcess reserves the right to seek at court. The parties agree that any costs (costs of proceedings, expenses, and attorney and official process-server fees) incurred in collecting the amounts owed and unpaid by the Beneficiary shall be deemed to constitute an ancillary to Fujitsu RunMyProcess’s claim.
5.5 In the event an Agreement were to be entered into through the intermediary of a Reseller, the amount and terms of payment of the Fee shall also be detailed in an Order Form, expressed excluding VAT. The Beneficiary shall have immediate access to the Service, subject to payment by the Reseller of the amounts owed to Fujitsu RunMyProcess within a period of thirty (30) days.
6 OBLIGATIONS OF THE BENEFICIARY
6.1 Privileged point of contact and Administrator
6.1.1 The Beneficiary agrees to designate, among the Users, a privileged point of contact whose duties shall be to represent it in its dealings with Fujitsu RunMyProcess and to ensure proper performance of the terms of the Agreement. This point of contact shall possess the experience, know-how, authority and resources required for the performance of his duties.
6.1.2 The Beneficiary also agrees to have at least one (1) administrator (the “Administrator”) among its employees to serve as Fujitsu RunMyProcess’s technical point of contact. The Beneficiary agrees (i) to have that Administrator undergo training as per the requirements defined by Fujitsu RunMyProcess prior to any use of the Service by the Users, (ii) to permanently procure that the Administrator’s level of training is consistent with the requirements and instructions issued by Fujitsu RunMyProcess and (iii) to ensure at all times that there is one (1) Administrator among its employees. Only the Administrator shall be entitled to access the corrective maintenance service. Compliance with the provisions of this section by the Beneficiary is a material condition that is of the essence to the performance by RunMyProcess of its maintenance obligations included in the Service.
6.2 Duty to cooperate
As a general principle, the Beneficiary agrees to cooperate in good faith, in particular by providing Fujitsu RunMyProcess all documents, data and information required or requested so as to allow Fujitsu RunMyProcess to ensure the Service under the conditions laid down in the Agreement.
7 SERVICE AVAILABILITY
7.1 Definition
The Service is deemed unavailable when the Beneficiary no longer disposes of any access to the Service (complete failure) under the following conditions: (a) Service failure for more than FIVE (5) consecutive minutes and (b) Service failure specifically related to a problem affecting the Software (including Runtimes). FUJITSU RUNMYPROCESS EXPRESSLY REMINDS THE BENEFICIARY THAT FUJITSU RUNMYPROCESS DISCLAIMS ANY AND ALL LIABILITY FOR ANY POSSIBLE SERVICE UNAVAILABILITY RELATED TO THE DESIGN OR THE OPERATION OF AN APPLICATION.
Service availability is expressed as a percentage as per the following formula: (number of minutes during the calendar month concerned) less (-) (number of minutes of unavailability during that same month as a result of an Incident) divided by (/) the number of minutes during the same month.
7.2 Measurement method
Fujitsu RunMyProcess shall implement all of the resources available to it to ensure an availability rate of 99.9%. The Service’s monthly availability rate is calculated by subtracting from 100% the monthly percentage of any Service interruption lasting for more than FIVE (5) consecutive minutes, to the exclusion of the following events:
(i) scheduled maintenance program (hardware or software): scheduled maintenance operations should be notified to the Beneficiary by email to the Administrator at least eight (8) calendar days beforehand and may not exceed a monthly duration of two (2) hours;
(ii) case of force majeure or failure outside the responsibility of Fujitsu RunMyProcess (for example, outage of a backbone);
(iii) preventive shutdown of the Service to respond to an attack by a denial of service.
7.3 Penalties
7.3.1 If the monthly availability rate is comprised between 99% and 99.9%, Fujitsu RunMyProcess shall credit the Beneficiary with three (3) days of free Service (added to the contractual period underway;
7.3.2 If the monthly availability rate is comprised between 95% and 99% Fujitsu RunMyProcess shall credit the Beneficiary with ten (10) days of free Service (added to the contractual period underway);
7.3.3 If the monthly availability rate is below 95%, Fujitsu RunMyProcess shall credit the Beneficiary with thirty (30) days of free Service (added to the contractual period underway).
7.3.4 After three (3) consecutive days of unavailability of the Service without restoration, the Beneficiary shall have the right to notify termination of the Agreement and Fujitsu RunMyProcess agrees to refund it any amounts collected pro rata temporis to the term of the Agreement remaining to be run.
8 SERVICE QUALITY ASSURANCE
8.1 Definition
“Incident” means any anomaly in the operation of a feature (a) lasting more than FIVE (5) minutes and (b) specifically related to a problem affecting the Software (Runtimes included). An Incident is either (i) major (critical error affecting the feature without a turnaround) or (ii) minor (feature impaired or not used in the Applications). FUJITSU RUNMYPROCESS EXPRESSLY REMINDS THE BENEFICIARY THAT FUJITSU RUNMYPROCESS DISCLAIMS ANY AND ALL LIABILITY FOR ANY POSSIBLE INCIDENT RELATED TO THE DESIGN OR OPERATION OF AN APPLICATION, unless such failure directly or indirectly stems from the Runtimes.
8.2 Processing and correction commitment
8.2.1 Reporting of an Incident by the Administrator
In Fujitsu RunMyProcess’s system dedicated to that aim, as soon as possible and between 9:30AM and 6PM Mondays to Fridays, excluding bank holidays in France (“Business Hours”).
8.2.2 Lead processing time by Fujitsu RunMyProcess
Within four (4) Business Hours of the report.
8.2.3 Solution for the Incident (as of the lead processing time):
Major
(critical error affecting a feature): Within 24 Business Hours
Minor
(impaired feature): Within 72 Business Hours
8.2.4 Nature of the solution
Restoration of the Service by the installation or supply of a temporary workaround process or of a temporary or permanent update, of the Software.
8.3 Limits to the intervention by Fujitsu RunMyProcess
To benefit from the Service quality offered by Fujitsu RunMyProcess, the Beneficiary is required to:
(i) immediately report any Incident to Fujitsu RunMyProcess and transmit without delay to Fujitsu RunMyProcess any information that is required or useful to locate and replicate the Incident;
(ii) ensure that Incident reports are transmitted to Fujitsu RunMyProcess by the Administrator only and in the manner set forth in this Agreement;
(iii) make at least one (1) Administrator fully available to Fujitsu RunMyProcess, and permit Fujitsu RunMyProcess to enter into contact with any Administrator and/or User likely to provide it with any useful information on the Incident reported.
9 DATA PROCESSING AND CIVIL LIBERTIES (BENEFICIARY LOCATED WITHIN THE EU)
9.1 The Beneficiary has sole responsibility for the processing of its personal data
The Beneficiary has sole responsibility for the data it processes using the Service, in particular personal data. As a result, it is up to the Beneficiary alone to declare, prior to implementing the Service, its personal data processing to the French data processing authority (Commission Nationale de l’Informatique et des Libertés – CNIL), in accordance with Act no. 78-17 dated January 6, 1978 on automated data processing, files and civil liberties, as amended by Act no. 2004-801 dated August 6, 2004 (the “Data Protection Act”). The Software, Applications and data of the Beneficiary are hosted with service providers located within the territory of the European Union, or in the territory of the United States by a service provider who has adhered to the “Safe Harbor” program ensuring the Beneficiary a level of protection for its data equivalent to that ensured on the territory of the European Union, in accordance with the option chosen by the Beneficiary in the Order Form.
9.2 Fujitsu RunMyProcess can only act upon the instruction of the Beneficiary
9.2.1 RunMyProcess reminds the Beneficiary that Fujitsu RunMyProcess is acting as a subcontractor, within the meaning of section 35 of the Data Protection Act, for the processing of the personal data carried out by the Beneficiary. On this basis, Fujitsu RunMyProcess is not the owner of the personal data processed by the Beneficiary using the Applications, and Fujitsu RunMyProcess can only act upon the written instructions of the Beneficiary for any specific processing applicable to the personal data that is not contemplated under the Agreement.
9.2.2 In case of the termination of the Agreement, for whatsoever reason, Fujitsu RunMyProcess reminds the Beneficiary that the latter’s Applications and personal data shall be deleted from its servers, as indicated at section 13.2 “Consequences of termination on the Data and Applications”.
9.3 Protection of the confidentiality of personal data
Fujitsu RunMyProcess agrees to protect the security of the Beneficiary’s personal data and the confidentiality of such data. In this respect, Fujitsu RunMyProcess agrees not to make any use whatsoever of the data entered and/or processed by the Beneficiary using the Applications, unless otherwise previously instructed in writing by the latter, and only in strict compliance with the provisions of the Data Protection Act. On this basis, RunMyProcess agrees not to make any use, for its own account or for that of any of its clients and/or partners, of the Beneficiary’s personal data other than for the purpose of delivering the Service.
9.4 Protection of the security of personal data
9.4.1 Fujitsu RunMyProcess agrees to ensure, and to procure that any technical service provider in charge of implementing the Service complies with, the strictest security in the access and back-up processes for the Beneficiary’s personal data, in accordance with industry standards. On this basis, Fujitsu RunMyProcess agrees in particular to ensure that the hosting provider enabling Fujitsu RunMyProcess to deliver the Service to the Beneficiary is informed of the commitments made by RunMyProcess to the Beneficiary and strictly complies therewith:
(i) Every Beneficiary’s account and Applications shall be compartmentalized: after the opening of an account by the Administrator, Users only access their own data, based on the profile given to each User, at the URLs specific to every Beneficiary;
(ii) SSL data shall be encrypted;
(iii) Users’ passwords to access the Service shall be encrypted and not stored without encryption;
(iv) The connection/login process shall be designed so as to withstand brute force password cracking attacks;
(v) Users’ passwords shall have a minimum of 8 characters;
(vi) All servers shall all be equipped with a firewall.
9.4.2 Fujitsu RunMyProcess agrees to inform the Beneficiary without delay of any impairment of the integrity of files containing its personal data as well as of any unauthorized access thereto of which it has knowledge.
9.5 Back-up of the Beneficiary’s data
Full back-ups shall be made on a daily basis of the Beneficiary’s Applications and data. Fujitsu RunMyProcess shall ensure that the Beneficiary’s Applications and data are properly backed up and agrees to inform it of any possible back-up failure. In addition, in case of failure, Fujitsu RunMyProcess shall take all actions aiming at restoring the conditions for the making of back-ups within the best timely manner.
9.6 Access to its data by the Beneficiary
The Beneficiary’s Administrator may at all times carry out a complete extraction of the data processed by the Applications.
10 INTELLECTUAL PROPERTY
10.1 General
10.1.1 Fujitsu RunMyProcess warrants that (i) the Software is original and that (ii) it is the holder of all of the intellectual property rights in and to the Software and/or benefits from user licenses from the right holders such that it is entitled to propose use of the Software as per the terms and conditions of this Agreement.
10.1.2 The Beneficiary is the sole proprietor of the intellectual property rights in and to the Applications it designs and develops on its own by using the Service, with the exception of Application items corresponding to Runtimes, for which Fujitsu RunMyProcess shall retain the intellectual property rights.
10.1.3 Fujitsu RunMyProcess reminds the Beneficiary that (i) Fujitsu RunMyProcess disclaims any and all liability for any possible design or operation defect in one or more Applications (unless such defect arises directly or indirectly from the Runtimes) and that (ii) the license to use the Runtimes shall cease upon the termination or expiration of the Agreement. Accordingly, if the Beneficiary wishes to be able to continue using the Applications, it shall be up to it to develop software to replace the Runtimes.
10.2 Warranty of non-infringement
10.2.1 During the Contractual Term, Fujitsu RunMyProcess warrants the Beneficiary against any claim or action by a third party asserting that its intellectual property rights are infringed by the Software (Runtimes included). Fujitsu RunMyProcess shall direct, at its cost and election, the defense against any such claim or action against the Beneficiary by a third party asserting that its intellectual property rights are infringed by the Software. Fujitsu RunMyProcess shall pay the full amount of any damages that may be entered against the Beneficiary pursuant to a final decision on the merits by a court of law.
10.2.2 Fujitsu RunMyProcess warrants the Beneficiary non-infringing use of the Software (Runtimes included), provided the Beneficiary notifies it, without delay, of any threatened claim or action, permits it to ensure its defense and cooperates with Fujitsu RunMyProcess in view of such defense at the cost of the latter. Fujitsu RunMyProcess shall have full control over such defense, including over any appeal or negotiations and shall have the right to enter into a settlement agreement within the meaning of sections 2044 et seq. of the French Civil Code.
10.2.3 In case of any such claim or action, or of a verdict against RunMyProcess, the latter may, at its choice and cost either (i) obtain the right for the Beneficiary to continue to use the Software (Runtimes included), or else (ii) replace or modify the Software (Runtimes included) so that it/they are no longer infringing, or else (iii) if the right to continue to use the Software (Runtimes included) cannot be obtained, and if the Software cannot be replaced or modified, at a reasonable cost, so that it is no longer infringing, notify termination of the Agreement and refund the Beneficiary for the full amount of the Fees paid by the Beneficiary.
11 DUTY TO ALERT AND WARN
11.1 The Beneficiary alone shall be responsible for (i) project management of the Service implementation project, (ii) the design of the Applications, (iii) the development and (iv) use of the Applications. The Beneficiary hereby acknowledges that it is responsible for carrying out or having carried out a detailed analysis of its requirements and objectives prior to any use of the Service and/or of the Software and/or of the Applications. The Beneficiary further represents that, through its employees or by reliance on a service provider, it possesses the requisite know-how to that end. The Beneficiary acknowledges that during the period preceding signature of the Agreement, Fujitsu RunMyProcess provided it with all requisite information for it to make its decision on a fully informed basis, and having been duly advised by Fujitsu RunMyProcess of the intended use, capabilities and objectives likely to be attained through the Service. The Beneficiary hereby acknowledges having been clearly informed by Fujitsu RunMyProcess that successful implementation of the Service and development of the Applications is likely to depend on the Beneficiary’s ability to adapt some of its internal organizational and/or operational processes.
11.2 Fujitsu RunMyProcess reminds the Beneficiary that Fujitsu RunMyProcess has no control over the Beneficiary’s Applications or data. As a result, Fujitsu RunMyProcess may in no event incur any liability with respect to any dispute arising out of the nature of the Applications developed by the Beneficiary on its own, or the nature of the data processed by the Beneficiary using the Applications.
11.3 Fujitsu RunMyProcess reminds the Beneficiary that the Internet, which allows it to deliver the Service, is an open and informal network, consisting of interconnections at the worldwide level of IT networks using the TCP/IP standard. The management of the Internet does not depend on any central body, each part of the network belonging to an independent public or private body. Its operation relies on cooperation between the operators of the various networks without any obligation to supply or ensure the quality of supply as between operators. Networks may have unequal transmission capabilities and their own usage policies. RunMyProcess cannot warrant the proper operation of the Internet as a whole nor, consequently, provide any warranty in respect of partial or complete failure to access the Service, the Software and/or the Applications which cannot, consequently, constitute an Incident.
12 LIABILITY
12.1 Fujitsu RunMyProcess agrees to deliver the Service as a diligent professional, in the context of a heightened duty of best efforts, and may only be exonerated from any potential liability by furnishing positive proof of the absence of any fault on its part, in particular in case of Service unavailability.
12.2 Fujitsu RunMyProcess shall assume any direct and proximate financial consequences, within the meaning of section 1151 of the French Civil Code, of liability for foreseeable damage, within the meaning of section 1150 of the French Civil Code, caused by partial or complete nonperformance of the Service.
12.3 Fujitsu RunMyProcess disclaims any and all liability for the financial consequences resulting from consequential or unforeseeable damages caused by partial or complete nonperformance of the Service, including, but without restriction, any lost profits, trading loss, loss of sales or business, loss of clientele, loss of an opportunity, loss, inaccuracy or corruption of files or of data, cost of obtaining a replacement product, software, service or technology.
12.4 The aggregate amount of the financial liability that may be incurred by Fujitsu RunMyProcess shall under no circumstance exceed the amount of the Fees paid by the Beneficiary in respect of the last twelve (12) months of use of the Service, with the exception of the indemnification provided under section 10.2.
12.5 The Beneficiary may not assert Fujitsu RunMyProcess’s liability on grounds of a breach of the Agreement otherwise than during a period of one (1) year as of the occurrence of the relevant breach. The limitations on liability specified in this section 12 have been agreed upon in light of the overall contractual balance achieved between the extent of the obligations of Fujitsu RunMyProcess on the basis of the Service, the amount of the Fee, and the indemnification that Fujitsu RunMyProcess agrees to pay to the Beneficiary in the event its liability is incurred.
12.6 The parties expressly agree that the right of use granted in respect of the Software (Runtimes included) by Fujitsu RunMyProcess to the Beneficiary within the scope of the Service constitutes a service provision within the meaning of sections 1709 et seq. of the French Civil Code by the making available of a copy of the Software. In this respect, and by waiver of section 1721 of the French Civil Code, Fujitsu RunMyProcess expressly excludes all warranties against hidden defects and does not warrant uninterrupted or error-free use of the Service.
13 TERMINATION
13.1 Cause of termination
13.1.1 The Agreement shall automatically terminate in the event a party fails to remedy any breach whatsoever of any of its material or substantial obligations (in particular compliance with the terms of payment of the Beneficiary set forth in the Order Form) within thirty (30) days from the notice of breach and opportunity to cure by the other party.
13.1.2 In the event the Beneficiary breaches any of its obligations under section 3, the Agreement shall be terminated with immediate effect on the date of notification of such breach by Fujitsu RunMyProcess, without any legal or other formality being required, and shall ipso jure trigger the immediate payablity of any amount owed to Fujitsu RunMyProcess and the obligation for the Beneficiary to pay same forthwith, notwithstanding such termination, without prejudice to the right to obtain damages for its entire loss, which Fujitsu RunMyProcess reserves the right to seek at law.
13.1.3 Fujitsu RunMyProcess reserves the right to notify termination of the Agreement at any time:
(i) if an individual or legal entity that develops and/or markets a service or a software which, in the opinion of Fujitsu RunMyProcess, competes with the Service or the Software, acquires direct or indirect control of the Beneficiary within the meaning of section L.233-3 of the French Commercial Code (“Control”);
(ii) if the Beneficiary acquires Control of a legal entity that develops and/or markets, directly or indirectly, a service or a software which, in the opinion of Fujitsu RunMyProcess, competes with the Service or the Software;
(iii) in case of merger, grouping or acquisition of Control of the Beneficiary, recapitalization or reorganization of the Beneficiary, disposal of all or substantially all of the assets or business of the Beneficiary if, once completed, the Beneficiary becomes a direct or indirect competitor of Fujitsu RunMyProcess or develops or markets a service or a software which, in the opinion of RunMyProcess, directly or indirectly competes with the Service or the Software.
13.2 Consequences of termination on the Data and Applications
13.2.1 The Beneficiary shall, as of the effective date of termination or expiration of the Agreement, for whatsoever reason, take all necessary measures to promptly back up its Applications and data, by using the tools made available to it in the scope of the Service, Fujitsu RunMyProcess playing no role whatsoever in the process for the extraction and back-up of the Applications and data.
13.2.2 No later than thirty (30) days after the effective date of termination or expiration of the Agreement, for whatsoever reason, Fujitsu RunMyProcess agrees to delete all of the Beneficiary’s Applications and data from its servers, without keeping any copy whatsoever.
14 CONFIDENTIALITY
14.1 All information in connection with this Agreement and to the provisions set forth herein and, more generally, but without this list being restrictive, to the parties’ business plan, current and future activities, their staff, know-how, whether such information is obtained directly or indirectly from the other party, its employees or those of its Affiliates, its subcontractors, its agents or service providers is confidential. Information is provided on as “as-is” basis, without any express or implied warranties as to the accuracy or integrity thereof.
14.2 The following shall not be deemed to constitute confidential information:
(i) information that is available to the public without entailing any breach of the terms of the Agreement by the party disclosing or using it;
(ii) information validly held by a party prior to the disclosure thereof by the other;
(iii) information that does not directly or indirectly arise from use of all or part of the confidential information;
(iv) information validly obtained from a third party authorized to transfer or disclose such information, without breaching any duty of confidentiality.
14.3 Each party hereby agrees (i) not to use the confidential information of the other party for any purposes whatsoever other than the performance of its rights and obligations arising under this Agreement, (ii) not to disclose the confidential information to any person whatsoever, by any means whatsoever, except to those of their employees, service providers or subcontractors requiring such information for the purposes of performance of the Agreement.
14.4 For the protection of the other party’s confidential information, each party agrees to implement at least the same protective measures that it would implement to protect its own confidential information, and to procure that its employees and those of its Affiliates and possible Partners having access to confidential information sign, prior to any disclosure to their benefit, a confidentiality agreement entailing obligations equivalent to those set forth in this section.
15 FORCE MAJEURE
15.1 Neither of the parties shall incur liability in the event performance of its obligations is delayed, restricted or rendered impossible by reason of the occurrence of an event of force majeure or an Act of God (hereinafter “Force Majeure”).
15.2 In case of occurrence of an event of Force Majeure, performance of the parties’ obligations is suspended. If the event of Force Majeure persists for more than thirty (30) days, the Agreement may be terminated by notice given by the more diligent party but without either party incurring any liability towards the other. Each party shall bear the entire expenses incumbent on it as a consequence of the occurrence of the event of Force Majeure.
15.3 The parties expressly agree that any irresistible event shall be deemed an event of Force Majeure. The following events shall be deemed to events of Force Majeure, but without this list being restrictive: act of State, war (whether or not declared), invasion, rebellion, blockade, sabotage, vandalism, total or partial strike, industrial dispute whether or not involving Fujitsu RunMyProcess, civil strife, adverse weather, natural disasters, fire, epidemics, unavailability or blockage of means of transportation or supply, including electric power supply, heating, air conditioning, and telecommunication networks (including the Internet), etc.
16 MISCELLANEOUS
16.1 Use of the Beneficiary’s name as a reference
The Beneficiary authorizes Fujitsu RunMyProcess to use its names and/or trademarks and/or distinguishing marks as a business reference. Any other use by Fujitsu RunMyProcess of the Beneficiary’s names and/or trademarks and/or distinguishing marks requires the Beneficiary’s prior written authorization.
16.2 Subcontracting
The obligations of Fujitsu RunMyProcess, in particular the Hosting services, may be fulfilled by another company on a subcontracting basis. Fujitsu RunMyProcess shall remain the sole liable vis-à-vis the Beneficiary for the performance of any services entrusted to a subcontractor.
16.3 Insurance
Fujitsu RunMyProcess represents that it has subscribed a policy with a reputable insurance company covering the consequences of its operational and professional liability in connection with the performance of this Agreement.
16.4 Severability
In the event that any provision whatsoever of the Agreement is held to be invalid or unenforceable pursuant to a final decision on the merits having res judicata effect by a court of law, the parties agree to endeavor to restrict, as far as possible, the scope of such invalidity or unenforceability so that the remaining contractual provisions remain in full force and effect and the economic balance of the Agreement is preserved. In that event, the parties agree to renegotiate in good faith the wording of a new provision substituting the severed invalid or unenforceable provision.
16.5 No waiver
No failure or delay by a party in exercising a right, power or remedy may be construed as a waiver of such right, power or remedy to the benefit of the other party. Similarly, exercise of a single right or partial exercise of a right, power or remedy shall not preclude any subsequent exercise of any other right, power or remedy under this Agreement. No waiver shall be effective unless in writing and signed by a representative of each of the parties.
16.6 Assignment of the Agreement
The Agreement may not be the subject of total or partial assignment, for or without consideration, by the Beneficiary, without the prior written consent of Fujitsu RunMyProcess. Notwithstanding the foregoing, the Beneficiary shall be free to assign all or part of its rights and obligations under this Agreement to the Affiliate of its choice, provided the latter has previously signed a counterpart of the Agreement in which the Affiliate agrees without any restriction or reservation whatsoever to assume all of the Beneficiary’s obligations, including those stemming prior periods of performance of the Agreement. No possible takeover/merger or similar operation affecting Fujitsu RunMyProcess shall affect the conditions of delivery of the Service to the benefit of the Beneficiary.
16.7 Entire Agreement
The Agreement sets forth the entire agreement between the parties in respect of the services that are the subject matter hereof. It cancels and supersedes all prior documents, understandings or agreements, whether oral or written, entered into between the parties in respect of the same services. The Agreement may not be varied otherwise than by way of a supplemental agreement signed by the two parties.
16.8 Notices and computation of time periods
All notices (formal notices, reports, approvals or consents) required or rendered necessary in application of the Agreement shall be made in writing and shall be deemed to be validly served if (i) hand delivered or (ii) sent by registered mail with delivery confirmation requested to the other party or by express courier service against signature of an acknowledgement of receipt. Unless otherwise provided in this Agreement, time limits shall be computed in calendar days, a week consisting of six (6) business days and five (5) working days. Any period running as of service of a notice shall be computed as of the date of the first attempted delivery to the recipient, the postmark, as well as the acknowledgment of receipt of the express courier service and the date handwritten on the letter delivered by hand constituting evidence thereof. If a measure must be implemented or a notice served on a specific date or by a specific deadline other than a working day, the relevant measure or notice may be postponed until the following working day.
17 GOVERNING LAW AND JURISDICTION
17.1 The Agreement is governed by the laws of France, both in terms of procedural and substantive rules. In the event the Agreement is translated into a foreign language, only the French language version shall be authoritative and binding.
17.2 THE BENEFICIARY ACTING AS A TRADER, IN APPLICATION OF THE PROVISIONS OF SECTION 48 OF THE FRENCH CODE OF CIVIL PROCEDURE, UNLESS AMICABLY SETTLED BETWEEN THEM, THE PARTIES EXPRESSLY AGREE TO SUBMIT ANY CLAIMS ARISING OUT OF THE INTERPRETATION, PERFORMANCE OR TERMINATION OF THIS AGREEMENT TO THE COMMERCIAL COURT OF PARIS, INCLUDING IN CASE OF SUMMARY PROCEEDINGS.