READ CAREFULLY THESE TERMS AND CONDITIONS, AS THEY, TOGETHER WITH THE ACTIVEEON BUSINESS PROPOSAL ON WHICH THEY ARE REFERENCED, CONSTITUTE A LEGALLY BINDING GTCL AND GOVERN YOUR USE OF THE ACTIVEEON SOFTWARE AND THE PROVISION BY ACTIVEEON OF ASSOCIATED SERVICES, INCLUDING THE ACTIVEEON CLOUD SERVICES. BY DOWNLOADING, INSTALLING AND/OR USING THE ACTIVEEON SOFTWARE, OR BY RECEIVING THE ACTIVEEON SERVICES, OR BY ACCESSING OR USING THE ACTIVEEON CLOUD SERVICES, YOU ARE INDICATING THAT YOU AGREE TO THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT DOWNLOAD, INSTALL THE ACTIVEEON SOFTWARE OR RECEIVE THE ACTIVEEON SERVICES OR ACCESS AND USE THE ACTIVEEON CLOUD SERVICES.
These General Terms and Conditions of License (the “GTCL”) are entered into by and between the ACTIVEEON entity identified in Section 12 (”ACTIVEEON”) and the Client, identified in the Business Proposal, that is purchasing a Software Subscription and/or Services (”You” or the “ Client”), and is effective as of the date you download the ACTIVEEON Software, receive the ACTIVEEON Services, access the ACTIVEEON Cloud Services for production use (i.e. not trial use) or sign the Business Proposal, whichever comes first (the “Effective Date”). ACTIVEEON and the Client are collectively referred to as the “Parties” and individually as a “Party”. If you are entering into these GTCL on behalf of a company or legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “You” and “Your” shall refer to such entity.
These GTCL shall apply to all Software or Cloud Subscriptions and Services, marketed by ACTIVEEON and proposed to the Client. In fact, the provisions contained herein shall apply, based on the License Type and Services actually subscribed by the Client, to any element of the Contract (Exhibits, Business Proposal, quotations, and associated actions) with regard to the aforementioned objects, entered into between ACTIVEEON and all its Clients, worldwide. If the Client is ordering or otherwise obtaining the ACTIVEEON Software and/or receiving Services, then the terms and conditions of these GTCL shall govern the Client’s use of the ACTIVEEON Software and/or Services.
If the Client is ordering the ACTIVEEON Cloud Services, then the additional terms and conditions of Exhibit B to these GTCL shall govern the Client’s access to and use of the ACTIVEEON Cloud Services.
These GTCL supersede any conditions of purchase or any other document issued by the Client, unless formally and expressly waived by ACTIVEEON. Accordingly, any contrary terms and conditions provided by the Client shall not be enforceable against ACTIVEEON regardless of the time at which it may have been brought to its knowledge, unless expressly accepted by ACTIVEEON as evidenced in the Business Proposal. These GTCL constitute an essential element of acceptance for ACTIVEEON to enter into the Contract.
The act of placing an order implies full and unreserved acceptance by the Client of the hereof GTC.
The following capitalized terms shall have the meaning set forth below. Other defined terms shall have the meanings set forth where they are first underlined.
“ACTIVEEON Cloud Services” and “Cloud Subscription” shall be as defined in Exhibit B.
“ACTIVEEON Software” means the object code version of the ACTIVEEON proprietary software for which the Client has purchased a Software Subscription hereunder, as indicated on the applicable Business Proposal, along with any Updates thereto provided by ACTIVEEON to the Client hereunder.
“Affiliate” means an entity that controls, is controlled by, or is under common control with the Client, where “control” means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the relevant entity.
“Business Proposal” means (i) an ACTIVEEON Business Proposal accepted by both Parties, pursuant to which the Client may order ACTIVEEON Software and Services from ACTIVEEON, or (ii) any document accepted by and between an authorized reseller of ACTIVEEON pursuant to which the Client may order ACTIVEEON Software and Services from ACTIVEEON.
“Contract” means these General Terms and Conditions of License, including all Exhibits (available via the following URL: https://www.activeeon.com/GTCL.html), and the Business Proposal and, where appropriate, amendments to these various documents, said latter forming an indivisible whole, the acceptance of the Business Proposal constitutes acceptance of the present GTCL.
“Documentation” means the documentation provided with the ACTIVEEON Software to the Client hereunder, together with any and all new documentation releases, corrections and updates furnished by ACTIVEEON to the Client under these GTCL.
“Generated Code” means an independently executable program generated by the ACTIVEEON Software.
“Major Software Release” means any new version of all or part of the ACTIVEEON Software including substantial improvements and/or substantial changes to existing features, and/or new major features, with the exception of compliance made obligatory by law.
“Open Source Software” means individual software components that are provided with the ACTIVEEON Software, for which the source code is made generally available, and that are licensed under the terms of various published open source software license agreement or copyright notices accompanying such software components.
“Order” means any request whatever its form, its nature or medium placed by the Client with ACTIVEEON and specifying the nature and quantity of the License and Services ordered;
“Services” means collectively the Consulting Services and/or Training Services.
“Software Subscription” means the Client’s right to use the applicable ACTIVEEON Software, subject to the License Type restrictions for which such right has been purchased.
“Software Subscription Key” means a logical code that may activate and control a Software Subscription based on (i) the applicable License Type, (ii) the ACTIVEEON Software edition for which a Software Subscription has been purchased, and (iii) the Subscription Term. A Software Subscription Key is “attached” to a specific hardware machine identified by a MAC address, and may be installed on only one machine at a time.
“Subscription Term” means the period of time for which; (i) a Software Subscription is valid; or (ii) a Cloud Subscription is valid, as set forth in the applicable Business Proposal. Notwithstanding the foregoing, the Subscription Term for any Generated Code is always perpetual.
“Support Services” means the technical support services related to the use of the ACTIVEEON Software and/or ACTIVEEON Cloud Services that are purchased by the Client, as set forth in the Business Proposal, and as further described in ACTIVEEON’s “Support Services Policy” as defined in Exhibit C.The Support Services Policy is hereby incorporated into and made part of these GTCL.
“Update” means any Minor Software Release, Maintenance Software Release, Service Pack and/or Patch (all as defined in the Support Services Policy as stated in Exhibit C) of or for the ACTIVEEON Software that is made generally available by ACTIVEEON to its Clients during the term of these GTCL.
FORMATION OF THE CONTRACT
Acceptance of the Business Proposal by the Client (hereinafter “Acceptance”) is a firm and final Order with ACTIVEEON. The benefit of the Order is personal to the Client and may not be assigned without the prior written consent of ACTIVEEON. Any request for changes or resolution of the Order requested by the Client can only be taken into considered with the express consent of ACTIVEEON and if it is received in writing, or by e-mail at the following address: email@example.com.
Any Software or Cloud Subscription and any subscription to the Services made to ACTIVEEON is valid as Acceptance and implies, on the part of the Client, a definitive commitment to pay the price and unconditional acceptance of all these GTCL. However, Orders only become firm and final until they have been confirmed by ACTIVEEON in writing, such confirmation is materialized by its signature of the Business Proposal.
The Client who wishes to subscribe to a License or the Services following the transmission of a Business Proposal by ACTIVEEON must read carefully the present GTCL and then sign and attach the Business Proposal transmitted and completed by ACTIVEEON based on the License Type and Services actually subscribed.
The duly initialed and signed Business Proposal must be submitted to an ACTIVEEON representative or an authorized reseller of ACTIVEEON, or sent to the following address: ACTIVEEON, LES ALGORITHMES” BÂT. PYTHAGORE B – 2000, Route des Lucioles, SOPHIA ANTIPOLIS – 06560 VALBONNE.
Upon receipt of the signed Business Proposal, ACTIVEEON shall deliver the ACTIVEEON Software in accordance with Section 4.3 below. Upon Acceptance, the Client undertakes to pay the amounts corresponding to the ACTIVEEON Software License Type and Services subscribed in accordance with the Business Proposal, the present GTCL.
Reservation of Rights; Restrictions. ACTIVEEON owns all right title and interest in and to the ACTIVEEON Software and any derivative works thereof, and no other license to the ACTIVEEON Software is granted to the Client by implication, estoppel or otherwise. The Client understands and agrees that the Client’s ability to use the ACTIVEEON Software is determined by a link provided to the Client by any mean or by the Software Subscription Key. The Client agrees not to: (i) prepare derivative works from, modify, copy or use the ACTIVEEON Software in any manner except as expressly permitted in these GTCL; (ii) attempt to circumvent, disable or defeat the limitations on the Client’s use of the ACTIVEEON Software encoded into the Software Subscription Key; (iii) transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the ACTIVEEON Software or the Generated Code in whole or in part to any third party; (iv) use the ACTIVEEON Software or the Generated Code for providing time-sharing services, any software-as-a-service offering (“SaaS”), service bureau services or as part of an application services provider or as a service offering; (v) alter or remove any proprietary notices in the ACTIVEEON Software or the Generated Code; and (vi) make available to any third party any analysis of the results of operation of the ACTIVEEON Software, including benchmarking results, without the prior written consent of ACTIVEEON.
Notwithstanding the foregoing restrictions, in the event the Client has purchased a Software Subscription license for Commercial Use (as such term is defined below), the Client shall be permitted to use the ACTIVEEON Software to provide third party services in cases where such third parties access the Client provided applications or services, but where such third parties do not have the ability to install, configure, manage or have direct access to the ACTIVEEON Software. ACTIVEEON hereby agrees, subject to payment of the applicable fees, to permit such use and the terms of these GTCL, including references to “internal use” and/or “internal business operations” shall be deemed to include and permit such use (hereafter referred to as “Commercial Use”).
Delivery; Software Subscription Keys and Use Manager. The ACTIVEEON Software is only available electronically via download and will not be available in any other format. ACTIVEEON Software shall be deemed delivered to the Client upon ACTIVEEON making available to the Client a link that allows it to download the ACTIVEEON Software or the Software Subscription Key. The Client understands and agrees that this specific link or a Software Subscription Key provided by ACTIVEEON is required to enable the ACTIVEEON Software and that links or Software Subscription Keys are valid only during the Subscription Term.
The Client further understands and agrees that: (i) the Client will be provided with a temporary link or Software Subscription Key upon invoicing, and upon receipt by ACTIVEEON of payment in full for the then-current Subscription Term, the Client will be provided with a link or a Software Subscription Key that is effective for the duration of such Subscription Term; (ii) in case of breach by the Client of the payment terms stipulated in these GTCL, ACTIVEEON will have the right to suspend the Software Subscription and such suspension will not give rise to any modification of the amount of the Software Subscription fee or to any extension of the Subscription Term; (iii) the ACTIVEEON Software will, in the absence of any renewal of the Subscription Term, be disabled automatically upon the expiration of the Subscription Term and (iv) the Software Subscription Key will automatically prevent the use of the ACTIVEEON Software in violation of the applicable License Type restrictions, as set forth in the Business Proposal.
Finally, the Client understands and agrees that upon activation of the ACTIVEEON Software, the software can provide certain information to ACTIVEEON regarding the system environment in which the ACTIVEEON Software is operating, and will monitor the use and security of the ACTIVEEON Software. For example, the software can use HTTP protocol and encryption to provide information about the Operating System, amount of RAM, type and number of CPUs and MAC address, as well as the Client name, license type, version of the ACTIVEEON Software being used, start and end date of the Software Subscription, and number of active users, provided, however, that under no circumstances does the software capture or transmit to ACTIVEEON any Client data being processed by the ACTIVEEON Software.
Support Services. Subject to the payment by the Client to ACTIVEEON of applicable fees, ACTIVEEON will provide the Client with the Support Services specified in the Business Proposal and in accordance with the Support Services Policy detailed in Exhibit C. Support Services are provided to the Client solely for the Client’s internal use and the Client may not use the Support Services to supply any consulting, support or training services to any third party. ACTIVEEON reserves the right to modify reasonably its Support Services Policy from time to time, provided that in no event will ACTIVEEON materially degrade or diminish the level and quality of Support Services provided under its Support Services Policy during the term of these GTCL. ACTIVEEON shall have no obligation to support versions of the ACTIVEEON Software that have been modified by the Client.
Consulting Services. Subject to the payment by the Client to ACTIVEEON of applicable fees, ACTIVEEON agrees to make commercially reasonable efforts to provide The Client with consulting services (the “Consulting Services”), if any, set forth on an applicable Business Proposal, or as may be further described in an applicable Statement of Work. Unless expressly specified in the applicable Business Proposal, Consulting Services are provided on a time and material (“T&M”) basis pursuant to the T&M rates specified in the applicable Business Proposal. Any hour worked during a weekend (Saturday, Sunday) or Bank/National Holiday will be charged at 1.5 times the agreed hourly rate. Any estimate of time or number of days or hours required to perform Consulting Services or any monetary amount stated in the applicable Business Proposal or Statement of Work for T&M Services, shall be deemed an estimate for the Client’s budgeting and ACTIVEEON resource scheduling purposes.
Training Services. Subject to the payment by the Client to ACTIVEEON of applicable fees, ACTIVEEON agrees to provide the Client with the training services (the “Training Services”), if any, set forth on an applicable Business Proposal, or as may be further described in an applicable Statement of Work.
Cancellation and Rescheduling. Cancelling or rescheduling of Consulting or Training Services must be done in writing. Consulting or Training Services scheduled by joint agreement between the Parties and cancelled or postponed by the Client less than five (5) business days prior to the engagement commencing shall be subject to a cancellation/rescheduling fee of $1,500 per ACTIVEEON Consultant in addition, the Client shall reimburse ACTIVEEON for any non-refundable travel expenses that have been incurred by ACTIVEEON prior to such cancellation or postponement of the Consulting and /or Training Services by the Client.
Subcontractors. ACTIVEEON reserves the right to use subcontractors to perform Services on ACTIVEEON’s behalf.
Client Policies. While on premises owned, controlled or hired by the Client, all ACTIVEEON personnel shall conduct themselves in accordance with the standard health, safety and security policies of the Client.
Ownership of Work Product and Other Materials. In the course of performing the Services, ACTIVEEON may create derivative works of the ACTIVEEON Software, new software or other works of authorship (collectively the “Work Product”). ACTIVEEON shall own all right title and interest in and to all Work Product, including all intellectual property rights therein and thereto. ACTIVEEON hereby grants to the Client a license to such Work Product under the same terms and conditions as the Client’s license to the ACTIVEEON Software set forth in Section 4.1 above. Notwithstanding the foregoing, and for the avoidance of doubt, in the case of Work Product that are Generated Code, ACTIVEEON shall retain ownership of the Generated Code. Nothing in these GTCL shall be deemed to prohibit ACTIVEEON from using for any purpose any general knowledge, skills, techniques or methods it learns in the course of performing Services.
Client’s Obligations. The Client agrees to provide ACTIVEEON with such cooperation, materials, information, access and support which ACTIVEEON deems to be reasonably required to allow ACTIVEEON to successfully provide the Services in accordance with each License Type. The Client understands and agrees that ACTIVEEON’s obligations to provide Services are expressly conditioned upon the Client providing such cooperation, materials, information, access and support.
FEES, PAYMENT AND TAXES
Fees. The Client agrees to pay ACTIVEEON the applicable Software Subscription, Services and Cloud Subscription fees stated in the Business Proposal.
Invoicing. Unless otherwise specified on the Business Proposal, the fees for the Services, Software Subscription and/or Cloud Subscription shall be invoiced upon execution of the applicable Business Proposal by both Parties. If no Business Proposal is executed, then upon receipt and acceptance of a valid Purchase Order by ACTIVEEON.
Payment. Unless otherwise specified in the Business Proposal, all invoices will be paid in the official currency of the country in which the ACTIVEEON has its headquarter, and are due upon receipt and will be paid within thirty (30) days of the date of the invoice. Payments will be made without right of set-off or chargeback. All monetary amounts are specified and shall be paid in the lawful currency stipulated in the Business Proposal. Late payments shall accrue interest in accordance with the provisions of article L. 441-6 of the French commercial code at three times the French legal interest rate fixed by decree per day of delay that will run without notice and as of right, and the Client shall reimburse ACTIVEEON for all costs of collection incurred as fixed by decree or, as the case may be, the maximum rate permitted by the applicable national law, determined and compounded on a daily basis from the date due until the date paid.
Pre-Packaged Services & Expenses. Training Services, and any Consulting Services that are not provided on a T&M basis, are sold as “Pre-packaged Services” with fixed prices, as set forth on an applicable Business Proposal. Fees for Pre-packaged Services shall be as stated on the applicable Business Proposal. Any Pre-packaged Services for which the applicable fees are pre-paid must be consumed by the Client within one (1) year from the time of purchase, and such fees are non-refundable. The Client shall reimburse ACTIVEEON for all reasonable travel, accommodation, communications, and out-of-pocket expenses incurred in conjunction with provision of the Services (the “Expenses”), provided that ACTIVEEON agrees that any such reimbursement may, at the Client’s written request, be limited by the Client’s standard travel reimbursement policies.
Taxes. All amounts payable by the Client to ACTIVEEON under these GTCL are exclusive of any tax, levy, VAT or other relevant governmental charge that may be assessed by any jurisdiction (the “Taxes”) and the Client agree to pay such Taxes, except for taxes based on ACTIVEEON’s income, whether based on gross revenue, the delivery, possession or use of the ACTIVEEON Software, the provision of Services, the execution or performance of these GTCL or otherwise, and including without limitation all goods and services tax, sales tax, excise duty, import or export levy, value added tax, governmental permit fees, license fees, and customs. If, as a result of any tax or levy, the Client is required to withhold any amount on any payment to ACTIVEEON, then the amount of the payment to ACTIVEEON shall be automatically increased to totally offset such tax, so that the amount actually remitted to ACTIVEEON, net of all taxes, equals the amount invoiced or otherwise due. The Client will promptly furnish ACTIVEEON with the official receipt of payment of these taxes to the appropriate taxing authority. If the Client is tax exempt, the Client shall provide ACTIVEEON with a certificate of exemption acceptable to the taxing authority.
Purchases through resellers. In the event the Client purchases licenses to the ACTIVEEON Software and/or purchases the Services (including the ACTIVEEON Cloud Services and any renewals thereof) through an authorized reseller of ACTIVEEON, the terms and conditions of these GTCL shall apply and supersede any other GTCL except for any terms and conditions related to pricing, payment or taxes. Such terms and conditions shall be negotiated solely by and between the Client and such authorized reseller. In the event the Client ceases to pay the reseller, or terminates its GTCL with the reseller, ACTIVEEON shall have the right to terminate the Client’s access to the ACTIVEEON Cloud Service at any time upon thirty (30) days’ prior written notice to the Client unless the Client and ACTIVEEON have agreed otherwise in writing.
TERM AND TERMINATION
Term. These GTCL shall commence on the Effective Date and shall, unless earlier terminated under Section 7.2 below, continue in force until the expiration of the applicable Subscription Term.
Termination; Post Termination. Either Party may, upon written notice to the other Party, terminate the Contract for material breach by the other Party if such Party has failed to cure such material breach within thirty (30) days of receiving written notice of such material breach from the non-breaching Party. Notwithstanding the foregoing, these GTCL shall automatically terminate in the event that the Client intentionally breaches the scope of the License granted in Section 4.1 of these GTCL. Upon termination of the Contract, for any reason, the Client shall promptly cease the use of the ACTIVEEON Software and Documentation and destroy (and certify to ACTIVEEON in writing the fact of such destruction), or return to ACTIVEEON, all copies of the ACTIVEEON Software and Documentation then in the Client’s possession or under the Client’s control.
Survival. All payment obligations under Section 6, plus Sections 1, 4.2, 4.5, 7.2, 7.3, and 8 to 14 shall survive any termination or expiration of these GTCL.
Confidential Information. Each Party (the “Receiving Party”) agrees to retain in confidence any information provided to it by the other Party (the “Disclosing Party”) that is marked, labeled or otherwise designed as confidential or proprietary or that Receiving Party knew, or should have known, was confidential due to the circumstances surrounding the disclosure by the Disclosing Party (the “Confidential Information”).
Exceptions. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by the Receiving Party without reference to the other party’s Confidential Information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).
Representatives. Each Party will only disclose Confidential Information to its employees, agents, representatives and authorized contractors (collectively the “Representatives”) having a need to know for the purposes of these GTCL. Each Party will notify and inform such Representatives of each Party’s limitations, duties, and obligations regarding use, access to, and nondisclosure of Confidential Information and will obtain or have obtained its Representatives’ agreement to comply with such limitations, duties, and obligations with regard to such Confidential Information no less restrictive than those contained herein. Each Party is liable for all acts and omissions of the Representatives related to the other Party’s Confidential Information.
Breach. Each Party agrees to give notice to the other Party immediately after learning of or having reason to suspect a breach of any of the proprietary restrictions set forth in this Section. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
WARRANTIES AND REMEDIES
Software Performance Warranty and Remedy. ACTIVEEON warrants to the Client that for a period of sixty (60) days from the Effective Date (the “Warranty Period”), the ACTIVEEON Software will perform in all material respects in accordance with the Documentation unless a longer warranty periods is foreseen by local applicable laws. The Client’s exclusive remedy and ACTIVEEON’s sole obligation for any failure of the ACTIVEEON Software to perform in all material respects in accordance with its Documentation will be for ACTIVEEON to use its commercially reasonable efforts to correct such non-conformance.
Such warranties do not apply to any defect resulting from: (i) misuse, (ii) casualty loss, (iii) use or combination of the ACTIVEEON Software with any products, goods, services or other items furnished by anyone other than ACTIVEEON (unless recommended by ACTIVEEON in writing), (iv) any modification not made by or for ACTIVEEON, or any use of the ACTIVEEON Software by The Client in violation of the terms of these GTCL.
Warranty Disclaimer and Limitations. Except as set forth in section 7.1 above or Exhibit B, the ACTIVEEON Software, the Services and the ACTIVEEON Cloud Services are provided “as is” without warranty of any kind, and ACTIVEEON and its licensors make no warranties whether expressed, implied or statutory regarding or relating to the ACTIVEEON Software, Documentation, Materials, Services or ACTIVEEON Cloud Services furnished or provided to the Client under this GTCL.
To the maximum extent permitted under applicable law, ACTIVEEON and its licensors specifically disclaim all implied warranties of merchantability, satisfactory quality, fitness for a particular purpose and non-infringment with respect to the ACTIVEEON Software, Documentation, Services and ACTIVEEON Cloud Services provided by ACTIVEEON hereunder, and with respect to the use of the foregoing. Further, ACTIVEEON does not warrant results of use or that the ACTIVEEON Software and/or ACTIVEEON Cloud Services will be error free or that the client’s use of the ACTIVEEON Software, deliverables and/or ACTIVEEON Cloud Services will be uninterrupted. ACTIVEEON uses a third party data center to host the ACTIVEEON Cloud Services.
The Client acknowledges that ACTIVEEON does not control the transfer of data over such third party facilities, including the internet, and that the ACTIVEEON Cloud Service may be subject to limitations, delays, and other problems inherent in the use of such third party facilities. ACTIVEEON is not responsible for any delays, delivery failures, or other damage resulting from such problems.
INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS
Obligation. Subject to the applicable conditions and limitations set forth in this Section 10, ACTIVEEON will, at its expense (i) defend, or at its option settle, a claim brought against the Client by an unaffiliated third party alleging that the ACTIVEEON Software and/or ACTIVEEON Cloud Services infringes such party’s copyright or trademark or any other intellectual property right of such party registered in the jurisdiction of the Client’s use of the ACTIVEEON Software and/or ACTIVEEON Cloud Services, or makes intentional, unlawful use of such party’s trade secret (each an “Infringement Claim”) and (ii) pay any settlement of such Infringement Claim consented to by ACTIVEEON or pay any damages finally awarded to such third party by a court of competent jurisdiction as the result of such Infringement Claim.
Remedies. If during the Subscription Term the ACTIVEEON Software and/or ACTIVEEON Cloud Services are, or in ACTIVEEON’s reasonable opinion is likely to become, the subject of an Infringement Claim, ACTIVEEON may, at its expense and option: (i) obtain the right for the Client to continue to use the ACTIVEEON Software and/or ACTIVEEON Cloud Services; (ii) modify the ACTIVEEON Software and/or ACTIVEEON Cloud Services so that it becomes non-infringing but is substantially functionally equivalent; or (iii) in the event that neither (i) or (ii) are commercially reasonable options, terminate the Client’s license to use the ACTIVEEON Software and/or ACTIVEEON Cloud Services and promptly refund to the Client any pre-paid, but unused fees paid by the Client to ACTIVEEON for the Software Subscription or Cloud Subscription that was fulfilled prior to such termination.
Exclusions. ACTIVEEON will have no obligation to the Client to the extent any Infringement Claim is based upon or results from: (i) the Client’s use of any version of the ACTIVEEON Software and/or ACTIVEEON Cloud Services not made available directly through ACTIVEEON or an authorized ACTIVEEON reseller; (ii) the failure of the Client to use an Update of the ACTIVEEON Software and/or ACTIVEEON Cloud Services that would avoid the infringement; (iii) a modification of the ACTIVEEON Software that is not performed by ACTIVEEON; (iv) the combination, operation, or use of the ACTIVEEON Software and/or ACTIVEEON Cloud Services with any other products, services or equipment not provided by ACTIVEEON; (v) any intellectual property right owned or licensed by the Client, excluding the Software or ACTIVEEON Cloud Services or (vi) any third party Open Source Software.
Conditions. The obligations of ACTIVEEON in Section 10.1 are conditioned upon the Client (i) notifying ACTIVEEON promptly of any threatened or pending Infringement Claim, (ii) giving ACTIVEEON, reasonable assistance and information requested by ACTIVEEON in connection with the defense or settlement of the Infringement Claim and (iii) tendering to ACTIVEEON sole control over the defense and settlement of the Infringement Claim. The Client’s counsel will have the right to participate in the defense of the Infringement Claim, at the Client’s own expense. The Client will not, without the prior written consent of ACTIVEEON, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Infringement Claim.
The foregoing provisions of this Section 10 state the entire liability and obligations of ACTIVEEON, and the exclusive remedy of the Client, with respect to any actual or alleged infringement of any patent, copyright, trade secret, trademark or other intellectual property right by the ACTIVEEON Software and/or the ACTIVEEON Cloud Services.
LIMITATION OF LIABILITY
Disclaimer of Certain Damages. In no event shall the Client or ACTIVEEON or its licensors be liable for any loss of profits, loss of use, business interruption, loss of data, cost of substitute goods or services, or for any indirect, special, incidental or consequential damages of any kind in connection with or arising out of the use or inability to use the ACTIVEEON Software or the ACTIVEEON Cloud Services, whether alleged as a breach of contract or tortious conduct, including negligence, even if a Party has been advised of the possibility of such damages. ACTIVEEON will remain liable for death and personalinjury in jurisdictions where this liability may not be restricted. The ACTIVEEON Cloud Services may be subject to limitations, delays, inaccessibility and other problems inherent in the use of the internet. ACTIVEEON is not responsible and disclaims all liability for any delays, failures or damages resulting from such problems. The Client is fully responsible for internet access and connectivity issues. The limitations of liability set forth in this section 9.1 shall not apply to a breach through gross negligence or intentional misconduct by the Client of the scope of the license granted in section 2.1 or to a breach by either Party of its obligations under section 6 (confidentiality) of these GTCL.
Damages cap. In no event shall ACTIVEEON’s or its licensors’ aggregate, cumulative liability under these GTCL exceed the amounts the Client was required to pay ACTIVEEON under these GTCL for the ACTIVEEON Software, Services and/or ACTIVEEON Cloud Services giving rise to such liability, in the twelve (12) months immediately prior to the event giving rise to liability.
The Client agrees that the foregoing limitations, exclusions and disclaimers are a reasonable allocation of the risk between the Parties and will apply to the maximum extent permitted by applicable law, even if any remedy fails in its essential purpose.
CLIENT’S CONTRACTING PARTY, GOVERNING LAWS, JURISDICTION AND NOTICES
General. Notwithstanding where the Client resides, it is contracting with ACTIVEEON, a French simplified joined-stock company, registered in the Trade and Company Register of GRASSE under the number 500 807 284, having its headquarter at “LES ALGORITHMES” BÂT. PYTHAGORE B – 2000, Route des Lucioles, SOPHIA ANTIPOLIS – 06560 VALBONNE, represented by its current President, Mr. Denis CAROMEL.
Governing Law and Jurisdiction. Each Party agrees that by default, these GTCL shall be governed by the laws of France, subject to the exclusive jurisdiction of the Paris courts. Upon Client’s request, if the Client resides in:
USA: the laws of California (USA) could be applicable, subject to the exclusive jurisdiction of the Sacramento courts;
Commonwealth and Europe (except France) and Africa: the laws of United-Kingdom could be applicable, subject to the exclusive jurisdiction of the London courts;
Asia and Pacific: the laws of Hong-Kong could be applicable, subject to the exclusive jurisdiction of the Hong-Kong courts;
Canada: the laws of Québec could be applicable, subject to the exclusive jurisdiction of the Montreal courts;
Mexico, Central America and South America: the laws of Panama could be applicable, subject to the exclusive jurisdiction of the Panama City courts;
Upon such Client’s request and after ACTIVEEON agreement, the governing laws and exclusive jurisdiction will be specified in the Business Proposal.
Notices. Any notice or other communication under these GTCL given by either Party to the other will be deemed to be properly given if given in writing and delivered in person or facsimile, if acknowledged received by return facsimile or followed within one day by a delivered or mailed copy of such notice, or if mailed, properly addressed and stamped with the required postage to the corresponding address stated above. Either Party may from time to time change its address for notices under this Section by giving the other Party notice of the change in accordance with this Section 12.3.
Assignment. The Client may not assign these GTCL, in whole or in part, without the prior written consent of ACTIVEEON. Any assignment in violation of this Section 13.1 shall be void and of no effect. Subject to the foregoing, these GTCL is binding upon, inures to the benefit of and is enforceable by the Parties and their respective successors and assigns.
Client Identification. ACTIVEEON may, upon the Client’s written approval, identify the Client as a user of the ACTIVEEON Software and/or the Services, as applicable, on its website, through a press release issued by ACTIVEEON and in other promotional materials. The Client also agrees to cooperate with ACTIVEEON in writing a case study exposing how the ACTIVEEON Software and/or the Services are being used and the benefits the Client is deriving from this use.
Applicable laws. The Client acknowledges that the ACTIVEEON Software is subject to French export control laws and regulations. The Client warrants that it is now and will remain in the future compliant with all export control laws and regulations, and will not export, re-export, otherwise transfer or disclose any ACTIVEEON Software to any person contrary to such laws or regulations.
Fees. In any judicial proceeding between the Client and ACTIVEEON arising out of or relating to this GTCL, the prevailing Party shall be entitled to recover all reasonable expenses incurred as a result of the proceeding, including reasonable attorneys’ fees.
Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under these GTCL, other than monetary obligations, as a result of any cause or condition beyond such Party’s reasonable control.
Non-waiver. Any failure of either Party to insist upon or enforce performance by the other Party of any of the provisions of these GTCL or to exercise any rights or remedies under these GTCL will not be interpreted or construed as a waiver or relinquishment of such Party’s right to assert or rely upon such provision, right or remedy in that or any other instance.
Language. The governing language of these GTCL shall be English. Any translation of these GTCL is made for information purposes only and the English language version shall prevail.
In accordance with Section 4.1 of the GTCL, the Client shall have a License to use the ACTIVEEON Software subject to the following License Types and associated restrictions.
Description of License Type
A license to use the ACTIVEEON Software for up to the total number of Interactive Users, Named Users, Nodes or Core, number of environments (Dev., Test, Integration, Production, etc.) for which the Client has paid the applicable fees, as specified in the Business Proposal.
To benefit from the Support Services associated to the use of the ACTIVEEON Software and offered by ACTIVEEON, the Client must pay the applicable fees, as specified in the Business Proposal.
Unless otherwise provided in the Business Proposal, the Subscription Term for any subscription of the ACTIVEEON Software License is annual.
A license to use the ACTIVEEON Software for up to the total number of Interactive Users for which The Client has paid the applicable fees, as specified in the Business Proposal. Note: An “Interactive User” means a user that may search, read, write and delete master data, using the native web user interface in the ACTIVEEON Software, including participation in workflow processes.
A license to use the ACTIVEEON Software for up to the total number of Named Users for which the Client has paid the applicable fees, as specified in the Business Proposal. Note: A “Named User” means a specific individual identified by a valid e-mail address. A single Named User may be declared in more than one Repository at a time. Named Users may be further distinguished based on access and use rights as described in the applicable Documentation.
Per Node Limitation
A license to use the ACTIVEEON Software for up to the total number of Nodes for which the Client has paid the applicable fees, as specified in the Business Proposal (“Per Node Limitation”). Note: A “Node” means a Physical Machine or Virtual Machine capable of running the ACTIVEEON Software.
Per Core Limitation
A license to use the ACTIVEEON Software for up to the total number of Cores or Virtual Cores for which the Client has paid the applicable fees, subject to the limitations set forth herein and as specified in the Business Proposal, based on either the Client use within; (i) a single physical hardware system (“Physical Machine”) or (ii) a Virtual Machine (“Per Core Limitation”).
Note: “Cores” shall mean the units within the central processing unit that can read and execute program instructions. “Virtual Cores” means the virtual processing power configured to a Virtual Machine.
“Virtual Machine” means a software container that can run its own operating system and execute applications like a physical machine. Each license of the ACTIVEEON Software is limited for use on a Physical Machine or Virtual Machine with up to the number of Cores or Virtual Cores specified in the Business Proposal. The Client may run the ACTIVEEON Software on a Physical Machine or Virtual Machine with more than the number of Cores or Virtual Cores that have been specified under the Business Proposal, provided however, the Client must purchase additional licenses of the ACTIVEEON Software to do so. In no event shall the Client be permitted to split a single license between a Physical Machine and a Virtual Machine. The Client may however, be permitted to split a single license across multiple Virtual Machines, so long as the Client does not exceed the Per Core Limitation for each license.
A license to use the ACTIVEEON Software for any non-production purpose, including use as part of a Warm Backup, use in a development environment for proof of concept, quality-assurance, or other testing purposes (“Non-Production Runtime”), for which the Client has paid the applicable fees, subject to the applicable License Type restrictions, as set forth in the Business Proposal. Note “Warm Backup” means use of the ACTIVEEON Software for failover purposes where the ACTIVEEON Software is installed on a system that is not actively supporting production activity until activated when the primary system becomes non-operational.
A license to use of the ACTIVEEON Software for any production purpose in an active environment, including use as part of a Hot Backup (“Production Runtime”), for which the Client has paid the applicable fees, subject to the applicable License Type restrictions, as set forth in the Business Proposal. Note “Hot Backup” means use of the ACTIVEEON Software for failover purposes where the ACTIVEEON Software is installed on a system that is actively supporting production activity including any two systems that can process requests simultaneously (“active-active”).
Description of License Type
Cloud Services License
A license to use the ACTIVEEON Cloud Services for up to the total number of End Users Named Users, Nodes or Core, number of environments (Dev., Test, Integration, Production, etc.) for which the Client has paid the applicable fees, as specified in the Business Proposal.
To benefit from the Support Services associated to the use of the ACTIVEEON Cloud Services and offered by ACTIVEEON, the Client must pay the applicable fees, as specified in the Business Proposal.
The additional terms and conditions of Exhibit B to the GTCL shall govern the Client’s access to and use of the ACTIVEEON Cloud Services.
Unless otherwise provided in the Business Proposal, the Subscription Term for any subscription of the ACTIVEEON Cloud Services License is annual.
A license to use the ACTIVEEON Cloud Services for up to the total number of Web Users for which the Client has paid the applicable fees, as specified in the Business Proposal. Note: A “Web User” means a specific individual identified by a valid e-mail address who has received a unique user name and password to access the ACTIVEEON Cloud Services.
A license to use the ACTIVEEON Cloud Services for up to the total number of Studio Users for which the Client has paid the applicable fees, as specified in the Business Proposal. Note: A “Studio User” means a specific individual identified by a valid e-mail address, who may access and use the ACTIVEEON Software (“ACTIVEEON Studio”), as part of the ACTIVEEON Cloud Services. A single Studio User is always entitled to act as a Web User by means of using the same email address. For avoidance of doubt a Web User is not automatically a Studio User.
A license to use the ACTIVEEON Cloud Services for up to the total number of Cloud Engines for which the Client has paid the applicable fees, as specified in the Business Proposal (“Cloud Engine”). Note: A “Cloud Engine” means a runtime (either production or non-production) Node capable of executing the Client workloads through the ACTIVEEON Cloud Services.
A license to use the ACTIVEEON Cloud Services for up to the total number of Remote Engines for which the Client has paid the applicable fees, as specified in the Business Proposal (“Remote Engine”). Note: A “Remote Engine” means a runtime (either production or non-production) Node capable of executing the Client workloads that are deployed on the The Client premise by the Client. Such workloads are run outside of the ACTIVEEON Cloud Services environment.
ACTIVEEON Cloud Services
In this Exhibit B, the following capitalized terms shall have the meaning set forth below. Other defined terms shall have the meanings set forth where they are first underlined or the ones stated in Section 1 of the GTCL.
- “Cloud Subscription” means the Client’s right to access and use the ACTIVEEON Cloud Services on a subscription basis, as specified in the applicable ACTIVEEON Business Proposal and subject to the applicable License Type restrictions.
- “Content” or “Client Data” means all applications, data, data files and software (other than the ACTIVEEON Software) provided by the Client or any End User of the Client that reside on, or runs on or through, the ACTIVEEON Cloud Services environment. The Client agrees not to include any production data in its Content while running in the trial environment of the ACTIVEEON Cloud Services.
- “End Users” means collectively those individuals authorized by the Client or on the Client’s behalf to use the ACTIVEEON Cloud Services, as more fully described in Exhibit A (i.e. Web User/Studio User).
- “Metadata” means technical information about the services in the cloud, including logs, metrics, and audit trail events used by ACTIVEEON to analyze the performance of the ACTIVEEON Software and/or the ACTIVEEON Cloud Services.
- “ACTIVEEON Cloud Services” means the online services operated by ACTIVEEON that is powered by ACTIVEEON technology which provides a web-based interface through which a person may access features and functions of the ACTIVEEON Software to design, manage and monitor integration capabilities including but not limited to data migration, data synchronization, data quality actions, or application and event based integrations.
The Client will be assigned a unique user name and password to access the ACTIVEEON Cloud Services. The ACTIVEEON Cloud Services may be accessed by no more than the total number of End Users for which the Client has purchased a license to use such ACTIVEEON Cloud Services, as set forth in the applicable ACTIVEEON Business Proposal. Additional End Users may be purchased during the applicable Subscription Term at a prorated amount for the remainder of the then-current Subscription Term.
The Client shall be responsible for identifying and authenticating all End User, for approving access by such End Users to the ACTIVEEON Cloud Services, for controlling against unauthorized access by such End Users, and for maintaining the confidentiality of user names, passwords and account information. ACTIVEEON is not liable for any harm caused by the Client End Users, including individuals who were not authorized to have access to the ACTIVEEON Cloud Services. The Client shall be responsible for all activities that occur under the Client’s and the Client’s End Users passwords or accounts or as a result of the Clients or the Client’s End Users access to the ACTIVEEON Cloud Services.
Furthermore, the Client agrees not to transmit or store infringing, obscene, threating, libelous, or otherwise unlawful or offensive Content, materials or information that violates the privacy rights of any person or to transmit or store material containing software virus, worms, trojan horses or other harmful computer code when using the ACTIVEEON Cloud Services. The Client agree that the Client shall abide by all applicable local, state, national and international laws and regulations in connection with the Client’s use of the ACTIVEEON Cloud Services, including those related to taxes, data privacy and the transmission of technical or personal data. ACTIVEEON does not own or accept any responsibility for any Content, data or material that the Client processes or submits to the ACTIVEEON Cloud Services in the course of the Client’s use of such services.
ACTIVEEON will have no access to any the Client Data until the Client transmits such data through its firewall to the ACTIVEEON Cloud Services. ACTIVEEON will not store or permanently maintain any of the Client Data or Content on its systems or through its ACTIVEEON Cloud Services except for metadata. ACTIVEEON shall not be liable or responsible for the deletion, correction, destruction, damage, loss or failure to store any the Client Data. The Client shall be fully responsible for all internet access and connectivity issues to the ACTIVEEON Cloud Services.
The Client retains ownership of all Content/Client Data, materials or information used or processed through the ACTIVEEON Cloud Services. ACTIVEEON and its licensors retain all ownership and intellectual property rights to the ACTIVEEON Cloud Services, including derivative works thereof.
ACTIVEEON will maintain the ACTIVEEON Cloud Services available in accordance with the prescriptions of Section 5.1 of the GTCL and Exhibit C. In any case, the Client’s subscription to the ACTIVEEON Cloud Services is submitted to its subscription, as the same time, to the Support Services provided by ACTIVEEON, in accordance with the Business Proposal and Exhibit C.
ACTIVEEON represents and warrants that it will provide the ACTIVEEON Cloud Services in a manner consistent with general industry standards and that the ACTIVEEON Cloud Services will perform substantially in accordance with the applicable Documentation for such ACTIVEEON Cloud Services, under normal use and circumstances.
PRIVACY; SECURITY; DISCLOSURES
ACTIVEEON’s privacy and security policies may be viewed at https://www.activeeon.com/privacy. ACTIVEEON reserves the right to modify its privacy and security policies from time to time or as required by applicable law. The ACTIVEEON Cloud Services follows best practices for data security, using a third-party data center that is independently audited and certified as its host. (Compliance standards for such third party facility may be found at each cloud provider web site). ACTIVEEON occasionally may need to notify all users of the ACTIVEEON Cloud Services of important announcements regarding the operation of the ACTIVEEON Cloud Services, and may do this online or via email.
Unless earlier terminated in accordance with Section 7.2 of the GTCL, upon the expiration of the Subscription Term, the Client’s Cloud Subscription will cease, unless the Client and ACTIVEEON have agreed to extend the applicable Subscription Term under the GTCL. In such case, the terms and conditions of the GTCL shall remain in full force and effect throughout the duration of the extended Subscription Term.
Section 2 and 4 plus Sections 7-11 of this Exhibit B shall survive any termination or expiration of these GTCL.
ACTIVEEON SUPPORT SERVICES POLICY
Supporting our customers is Activeeon top priority. We are dedicated to fast response time for resolving questions or issues which arise with your use of ProActive Parallel Suite’s products. By subscribing to Activeeon support services, organizations using Activeeon’s solutions benefit from the knowledge of Activeeon’s technical experts, who are directly connected with Activeeon’s Research & Development organization.
Activeeon offers customers several options for support services. Activeeon’s technical support center provides quick, efficient and high-quality support services to ProActive users through three service levels, on a subscription basis for an annual fee. These services are designed to bring efficiency, security and reassurance to subscribers.
The table below outlines the features of our yearly subscription plans for ProActive Parallel Suite:
YEARLY SUBSCRIPTION PLAN*
Support Times CET
(Central European Time)
9 am - 5 pm Mon - Fri
8 am - 6 pm Mon – Fri
Guaranteed Response Time SLA
Next business day
4 hours business day
Email Support Access
Enterprise Telephone Access in English and French
Number of incidents
20 per year
30 per year
200 per year
System Administrator & Developer Assistance
(1 primary, 1 secondary)
Designated Technical Account Manager
Designated Technical Senior Account Manager
Number of Named Supported Users
Included Consulting and Development Support
Yes, 3 Days
Yes, 6 Days
Emergency Consulting and Development Support
Yes, 7 Days Notice on-site
Yes, 2 Business Days on-site
Migration Support to New Minor Releases
Migration Support to New Major Releases
Bug & Patch
Emergency Hot Fixes
Issue Tracker / Bug Tracking
Certified patches and updates committed in the next release
New Release and Update Notifications
*All annual subscriptions are taking place on a single site, if multi-site is needed, it has to be explicitly stated in the Business Proposal.
All generic developments are copyright of Activeeon and will be integrated in ProActive Parallel Suite® ensuring support within future releases. For any specific development and license rights, please discuss a personalized plan that best fits your needs.
Response Time SLA varies depending on the level of Severity.
Sev 4: next business day
Sev 4: 4 hours response
Sev 4: 2 hours response
Sev 3: 2 business days
Sev 3: 8 hours response
Sev 3: 4 hours response
Sev 2: 3 business days
Sev 2: 2 business days
Sev 2: 1 business day
Sev 1: 4 business days
Sev 1: 4 business days
Sev 1: 3 business days
The different levels of severity allow you to define the urgency of the issue you have. The four levels of severity are defined as follow:
Severity 4 (Urgent): The issue is critical and severely impacts your application in production. The situation stops your business and there is no known work around. Recorded incidents for a severity 4 level intervention is 4.
Severity 3 (High): Your application is still running but in a severely reduced capacity. The situation has a high impact to some of your business operations and no known work around procedure exists. Recorded incidents for a severity 3 level intervention is 3.
Severity 2 (Medium): The issue involves partial, non-critical functionality loss of a production or development application. There is a medium-to-low impact to some of your business, but your application continues to function notably by using a work around procedure. Recorded incidents for a severity 2 level intervention is 2.
Severity 1 (Low): A general question, reporting of a documentation error or feature request to be included in a future release. There is low-to-no impact on your business or the performance or functionality of your application. Recorded incident for a severity 1 level intervention is 1.
Included Consulting and Development Support
Consulting support targets clients who need on-demand support services for all phases of development and deployment.
It aims at getting started fast and easy with on-demand guidance and recommendations throughout your evaluation of ProActive, services that assist you during every step of the application lifecycle. We want to provide you with enhanced visibility of your business applications. The client will have tailored advice from the leading experts that work directly on ProActive to optimize their development and their investment. The support includes customized developments.
Emergency Consulting and Development Support
Availability of Emergency Consulting Support for Subscription customers to ensure organizations deploying production middleware applications get priority access with fast response times out of ProActive Parallel Suite® at the right price.
The release numbering is defined as follow: Major.Minor.Maintenance
Major Software Releases (e.g. 1.0.0, 2.0.0):
These releases provide significant new functionality.
Minor Software Releases (e.g. 1.1.0, 1.2.0): These releases provide enhancements to the functionality and new features of a product.
Maintenance and Hot Fix Releases (e.g. 1.0.1, 1.0.2):
These releases are periodically built to include patches of all the corrected bugs in the current minor release. Compatibility between maintenance releases is guaranteed.
The product release supported is the current minor release published at the time of the subscription signature. The support plan also includes Updates to the releases Minor and Maintenance published during the period of the subscription contract.
Why three offers?
With Activeeon subscription plans you have the flexibility to choose from Silver to Platinum subscription plans, to best meet your needs.
Our offer gives you the ease of use and performance because we understand the real-world issues and challenges you face.
At the Gold Subscription Level Activeeon provides:
3 daysdeveloper-to-developer support during the subscription plan
Direct private email support and response from a Designated Technical Account Manager
Phone support if you need additional assistance
30% discount on all future developments
20% discount on training (off and on-site)
At the Platinum Subscription Level Activeeon provides:
6 daysdeveloper-to-developer support during the subscription plan
Direct private email support and response from a Designated Senior Technical Account Manager