GENERAL TERMS & CONDITIONS OF SERVICE AGREEMENT
Article 1 PURPOSE
this Agreement’s purpose is to determine the terms and conditions under which Amiral Technologies carries out the Services that were ordered by the Client subsequent to a Proposal of Services.
Amiral Technologies and the Client are considered Parties to this Agreement.
By issuing a Service Order to Amiral Technologies, the Client agrees to the present General Terms & Conditions.
Article 2 DEFINITIONS
Terms and expressions whose first letter of each word is in capital letters have, within the Agreement, the meaning assigned to them below, whether they are used in the singular or plural.
1. “Agreement” shall mean this Agreement, any appendix and amendments, as well as the Proposal(s) of Services and the associated Specifications.
2. “Confidential Information” shall mean any information communicated (written, orally or by any other mean) directly or indirectly by one Party to the other Party prior or after this Agreement’s entry into force including, without limitations, the information related to the subject matter of the Agreement as well as the operations, processes, plans, know-how, commercial secrets, inventions, techniques, commercial opportunities and activities of the Parties.
3. “Force Majeure” shall mean the events external to the Parties, unpredictable and unstoppable, as defined by French case law, the following events shall be deemed to constitute a case of Force Majeure.
4. “Order” or “Service Order” is the documents issued by the Client requesting Amiral Technologies to supply the Services for the agreed Price. The signature on the Proposal of Services is considered to be an Order.
5. “Price” shall mean the amounts due by the Client consideration of the provision of the Services by Amiral Technologies, as indicated in the applicable Proposal of Services.
6. “Proposal of Services” shall mean the description of the Services and the financial conditions submitted by Amiral Technologies and accepted by the Client.
7. “Report” shall mean Amiral Technologies’ report for the Client. This deliverable explains the results of the Services.
8. « Services» shall mean the works that are described in the Proposal of Services or in the Specifications submitted by Amiral Technologies and accepted by the Client.
9. “Solution” shall mean the DiagFit software solution developed by Amiral Technologies for equipment failure prediction.
10. “Specifications” shall mean the document prepared jointly by the Parties describing the context and expectations of the Services.
Article 3 SCOPE OF THE SERVICES
The scope of the Services is defined in the Proposal of Services and/or in the Specifications. The Proposal of Services and/or the Specifications describe the prerequisites and the responsibilities of both parties within the scope of the Services.
No delay in the provision of Services can be blamed on Amiral Technologies if this delay is due to the delay or failure by the Client to provide the data or the prerequisites provided for in the Specifications.
If the Specifications do not correspond to the reality of the Client's needs (e.g., evolution of the System Environment), Amiral Technologies may, at its discretion, review and resubmit the Proposal of Services or the Specifications, particularly the financial conditions.
During the performance of the Services, any request from the Client not covered by the Specifications shall be treated by Amiral Technologies as a specific request, which shall be considered by a new Proposal of Services.
Article 4 ENTRY INTO FORCE – DURATION
The client’s Order is considered firm and definite from the date Amiral Technologies receives and accepts the Order. The Agreement is effective as from the date of the Order and remains in force for the duration of the Services.
Article 5 INTELLECTUAL PROPERTY RIGHTS
This Agreement does not operate any intellectual property rights transfer. In particular, Amiral Technologies does not grant to the Client any intellectual property rights to the Solution and the Client does not grant to Amiral Technologies any intellectual property rights to the Client’s data.
Amiral Technologies remains the owner of all Intellectual Property rights over its equipment, software, tools, methods and know-how that are used or developed during the course of the Services.
Nevertheless, and under the condition of the payment of the Price by the Client, Amiral Technologies grants to the Client, on an exclusive and nontransferable basis, all the intellectual property rights related to the Report, with a view to its exploitation within the framework of its activity by the Client.
It is specified that the assigned rights include the right of reproduction, defined as the right to make or have made an unlimited number of copies of the Report on any medium and by any means, The right of representation, defined as the right to communicate, disseminate, cause to be communicated or cause to be disseminated the Report to the public by any means, The right to modify, edit, exploit, manufacture, adapt or more generally use the Report.
This assignment is made for the entire world and is granted for the duration of protection conferred by the corresponding intellectual property rights.
It is expressly agreed between the Parties that the final price shall also cover the assignment of intellectual property rights as listed in this Article 5.
Amiral Technologies is allowed to use the Client’s elements (e. g. data, text, logo, images, sounds, videos), when necessary for the performance of its obligations under the Agreement. In this context, Amiral Technologies undertakes to comply with any guidelines communicated to it prior to its use of the Client’s elements.
Article 6 FINANCIAL CONDITIONS
In consideration of the Services provision, the Client shall pay to Amiral Technologies the amounts defined in the applicable Proposal(s) of Services.
The amounts due to Amiral Technologies as referred to in this Article 6.1 are exclusive of tax and do not include any delivery and/or travel expenses, unless otherwise specified.
The Price was evaluated on a flat-rate basis by Amiral Technologies, on the basis of the elements described in the corresponding Proposal of Services.
Full payment of the Price is an essential obligation between the Parties.
The Client shall refund Amiral Technologies for any costs incurred, provided that (i) such costs are of a reasonable amount; (ii) Amiral Technologies presents the corresponding supporting documents; and (iii) such costs are incurred by Amiral Technologies to enable it to fulfil its obligations under the Agreement.
6.3 Payment Terms and Conditions
Unless otherwise indicated in the Proposal of Services or on the invoice, the Client shall pay the amounts due to Amiral Technologies - as referred to in article 6.1- within thirty (30) days of the issuance of the corresponding invoice.
In the event of non-payment within the contractual deadlines:
- (i) any unpaid amount shall automatically bear interest from day to day until the date of its full payment in principal, interest, fees and incidentals, at a rate equal to three (3) times the legal interest rate in effect, without any prior formality, and without prejudice to the damages that Amiral Technologies reserves the right to request in a judicial manner;
- (ii) Amiral Technologies reserves the right, at its sole discretion with or without prior notice, to suspend the performance of any current or future service until the full payment of the due amounts;
- (iii) all costs incurred by Amiral Technologies for the recovery of the sums due shall be borne by the Client, including bailiff's fees, legal fees and attorney's fees, which may not in any event be less than the fixed compensation referred to in Article L. 441-6 I 12th of the French Commercial Code, in an amount of forty (40) euros; and
- (iv) any amounts remaining due to Amiral Technologies by the Client shall become immediately due and payable.
The amounts paid by the Client to Amiral Technologies under the Agreement shall remain vested in Amiral Technologies and shall therefore not be refundable, even in the event of termination of this Agreement or any other agreement between Amiral Technologies and the Client.
Article 7 AMIRAL TECHNOLOGIES’ COMMITTMENTS
7.1 Compliance with applicable rules
Amiral Technologies undertakes to perform the Services in accordance with the applicable standards and regulations to the Client’s field of activity, as well as the Proposal of Services and the guidelines applicable to the Solution and; in any event, provide the Services in accordance with the state of the art.
7.2 Staff members
Amiral Technologies declares, where necessary, that it is registered with the Trade and Companies Register, with the URSSAF and/or with any administrations or entities (including social insurance administrations or entities) required for the performance of the Agreement. Registrations made in accordance with this article, as well as registrations made prior to the conclusion of the Agreement, must expressly cover all the Client’s activities for the performance of the services under the Agreement. In accordance with the provisions of Articles L. 8221-1 et seq. and D. 8222-5 of the French Labour Code, Amiral Technologies undertakes to provide the Client, upon request, with any supporting document related to its registration, the payment of its social and tax contributions and the employment certificate of its staff.
Throughout the term of the Agreement, Amiral Technologies is allowed to subcontract in whole or in part with any supplier, service provider and/or subcontractor of its choice.
In this context, Amiral Technologies will remain, under the conditions set out in the Agreement, responsible for the provision of the services.
Article 8 CLIENT’S UNDERTAKINGS
The Client commits to:
- (i) cooperate in good faith in order to ease and assist Amiral Technologies' interventions, in particular by providing it with all relevant or requested information as specified in the Proposal of Services or in the Specifications grant Amiral Technologies all necessary rights and authorizations on said Client’s elements within a time frame allowing Amiral Technologies to fulfil its obligations;
- (ii) when the Services are to be performed on site, provide access to its premises and equipment, as well as the means necessary for the provision of the Services;
- (iii) comply with applicable legislation in the conduct of its business.
Amiral Technologies shall in no event be liable for damages resulting from the Client’s failure to comply with its obligations.
The Client shall indemnify and hold harmless Amiral Technologies against any action, claim, conviction that may be brought against it as a result of any breach by the Client.
Article 9 TERMINATION
Each Party may, without prejudice to any judicial damages, terminate the Agreement with immediate effect in the event of failure by the other Party to fulfil any of its essential obligations under the Agreement, and in particular in the event of non-payment of the Price under the conditions defined in Article 8, if this failure has not been remedied by the defaulting Party within thirty (30) working days of notification of this failure by the other Party, by registered letter with acknowledgement of receipt.
Article 10 WARRANTY - LIABILITY
Amiral Technologies does not provide any warranty on the Services and/or elements provided to the Client under the Agreement.
It is expressly agreed that the provisions of this Article 10 is accepted by Client, so that each of the Parties considers them justified and proportionate in the light of its other commitments under the terms of the Agreement.
Unless otherwise expressly stipulated, Amiral Technologies' obligations under the Agreement are obligations of best efforts and are not obligations of results.
It is expressly agreed between the Parties that Amiral Technologies shall not be liable for any loss of profits; loss of revenue or profit; loss of customers; loss of opportunity; loss of image or reputation; loss of any cost to obtain an alternative product, software, service or technology; or any technical difficulty in routing a message over the Internet.
If the liability of Amiral Technologies was to be held, the cumulative total amount of compensation it would be required to pay may not exceed fifty percent (50%) of the sums actually received by Amiral Technologies under the Agreement , provided that this amount shall not exceed one hundred thousand euros (100,000€).
Amiral Technologies shall in no event be liable for any damages resulting from the Client's failure to comply with its obligations.
Article 11 CONFIDENTIALITY
Both Parties undertake, on their behalf and on behalf of their employees, agents, subcontractors and partners, during the term of the Agreement and for a period of five (5) years after its termination, to:
Article 12 MISCELLEANOUS
12.1 Assignment/transfer of the Agreement
Amiral Technologies shall have the possibility to transfer all or part of the rights and obligations resulting from the Agreement to any subsidiary to be incorporated, as well as in case of- a merger, demerger, partial contribution of assets or total or partial transfer of its business.
It is expressly agreed that any change in the capital structure of Amiral Technologies, including a change of control, shall not affect the performance of the Agreement.
However, the Client is not allowed to transfer all or part of its obligations under the Agreement, in any manner whatsoever, without the prior express written consent of Amiral Technologies.
12.2 Relationship between the Parties
Each Party acts as an independent and autonomous company. The Agreement exclusively covers the purpose defined above and does not contain any form or intention to set up a legal or de facto company, the Parties being devoid of any affectio societatis. Nothing in the Agreement shall be deemed as giving either Party the power to direct the activities of the other Party.
12.3 Notification – Computation of time limits
Any notice (formal notice, report, approval or consent) required or necessary pursuant to the provisions of the Agreement shall be in writing and shall be deemed valid if delivered by hand or sent by registered letter with acknowledgement of receipt to the address of the other Party at the top of the Agreement (or to any other address chosen by one Party and notified to the other).
Unless otherwise specified in an article of the Agreement, the time limits are calculated per calendar day. Any period calculated from a notification shall run from the first attempt to deliver it to the addressee, the postmark being proof.
12.4 Force Majeure
Each Party shall not be held liable if the performance of its obligations is delayed, restricted or made impossible due to the occurrence of an event of Force Majeure. It is expressly agreed between the Parties that the provisions of this Article 16.6 shall not apply to obligations to pay.
In the event of the occurrence of a Force Majeure, the performance of the obligations of each Party shall be suspended. If the Force Majeure continues for more than one (1) month, the Agreement may be terminated at the request of the most diligent Party without any liability on the part of one Party to the other. Each Party shall bear the cost of all costs incumbent upon it as a result of the occurrence of Force Majeure.
The fact that either Party does not exercise any of its rights hereunder shall not constitute a waiver of its exercise, such waiver being subject only to an express declaration by the Party concerned.
12.6 Processing of personal data
Both Parties shall respect the European RGPD regulations in processing personal data.
If one or more of the provisions of this Agreement are considered invalid by a competent jurisdiction, the remaining provisions shall retain their scope and effect.
The provision that has been held to be invalid shall be replaced by another provision whose meaning, and scope shall be as close as possible to the invalidated provision, while remaining in accordance with the applicable legislation and the common intention of the Parties.
The Agreement constitutes the entire agreement between the Parties and supersedes any communication, proposal, declaration and agreement, written or oral, issued by either Party before or after the performance of the Agreement.
Article 13 APPLICABLE LAW-COMPETENT JURISDICTION
This Agreement is governed by French law.
THE PARTIES EXPRESSLY ACCEPT TO SUBMIT ANY DISPUTE RELATED TO THIS AGREEMENT TO THE EXCLUSIVE COMPETENCE OF PARIS COURTS, NOTWITHSTANDING PLURALITY OF DEFENDANTS OR WARRANTY CLAIMS, AND INCLUDING SUMMARY PROCEEDNGS AND EX PARTE MOTIONS.