Terms & Conditions

5. Joint provisions

5.1 PRIVATE AND CONFIDENTIAL INFORMATION

The term “confidential information” refers, but is not limited, to the ideas, processes, computer programs (source or object code), formulas, expertise, marketing plans, forecasts, new products, non-published financial statements, budgets, prices, costs, client lists, competition information and strategies.

The term “confidential information” as used here excludes any information or other information in tangible form: (a) already in possession of the CLIENT or Kurmi Software, its subsidiaries, its employees or agents, with no prior restrictions; (b) developed independently by Kurmi Software or the CLIENT, its subsidiaries, employees or agents; (c) disclosed to the public by the CLIENT or Kurmi Software; or (d) made available for third parties by the CLIENT or Kurmi Software, its subsidiaries, employees or agents, with no restrictions.

The CLIENT and Kurmi Software agree: (a) not to disclose confidential information to anyone with the exception, in accordance with applicable restrictions, of subsidiaries, employees and agents who need such information to carry out their tasks; (b) to treat this information with the appropriate degree of precaution depending on its strategic (source code) or commercial importance and at the very least in accordance with the provisions laid down for the protection of their own information not intended to be known by third parties.

The obligations outlined above shall apply while their contractual relationship remains in force and during the two years following the expiry of this relationship for whatever reason: termination, expiry or cancellation of the contract.

Unless advised to the contrary, Kurmi Software may mention the CLIENT’s name and logo on a list of commercial references for the purposes of internal or external communication.

5.2 TRADEMARKS AND NAMEDuring the term of this contract, the CLIENT will have the non-exclusive, non-assignable and non-transferable right to indicate publicly that it uses Kurmi Software SOFTWARE. KURMI SOFTWARE may also publicly refer to the CLIENT in its

communications.

The CLIENT undertakes not to modify, delete or hide the trademarks and trading names of Kurmi Software, as well as Kurmi Software’s markers as to ownership, tags or trademarks which appear on every copy of the SOFTWARE and its documentation.

The CLIENT is free to leave Kurmi Software’s trademarks, trading names and copyright markers on users’ computer screens or terminals or to use its own trademark.

5.3 LIMITATION OF LIABILITY

Except for bodily injury or damage resulting from gross negligence or fraudulent misrepresentation, liability of Kurmi Software is limited to direct damages and its cumulative liability will not exceed the amount:

• With regard to the licence contract and the implementation of the solution: to the cumulative amount charged by Kurmi Software and paid by the CLIENT for the implementation services and operating licence in the operational phase;
• With regard to maintenance: to the annual value of the maintenance contract charged by Kurmi Software and paid by the CLIENT.

Kurmi Software may not be held liable for any indirect damage (including operating loss, loss of data, loss of customers or any similar loss of revenue). Kurmi Software has taken out insurance policies to cover its civil and professional liability.

THE CUMMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER PARTY UNDER THIS AGREEMENT FOR DIRECT DAMAGES WILL IN NO EVENT EXCEED AN AMOUNT EQUAL TO ONE HUNDRED THIRTY PERCENT OF THE AMOUNT OF FEES PAID BY LICENSEE TO KURMI SOFTWARE UNDER THIS AGREEMENT.

5.4 PAYMENT DEADLINES

The payment deadlines are specified in the Proposal. Any failure to pay an invoice by the due date authorises Kurmi Software to charge interest on arrears to the sum of twelve per cent (12%) per year or the maximum amount authorised by applicable legislation, with effect from the due date of the invoice until its payment in full, without precluding any other action that Kurmi Software is entitled to carry out, namely the suspension of its obligations or the termination of the contract.

Notwithstanding Article 1153 of the French Civil Code, no formality is required for the application of late penalties.

5.5 PRICE REVIEW

After the first year of the contract, the services prices will be reviewed annually based of the following formula P1 = P0 x (S1/ S0) in which:

• P1 = reviewed price,
• P0 = price define at the contract signature date,
• S1 = last SYNTEC index published at the price review date,
• S0 = SYNTEC index published at the date of the sales proposal.

5.6 FORCE MAJEURE

Are considered as cases of force majeure and therefore authorise the party which invokes them to suspend its obligations while they are occurring, uncontrollable, unpredictable and external events such as general strikes, fires, floods, heavy winds, explosions, lightning, storms and other events of a similar nature which are beyond the control of the party concerned and which affect its activities.

5.7 TERMINATION FOR DEFAULT OR SPECIAL CIRCUMSTANCES

This contract may be terminated in full or in part at any moment by one or other of the parties if the other party:

• Does not carry out one of its obligations stipulated in this contract and, if it is possible to remedy the situation, does not do so within sixty (60) calendar days of the date of receipt of a formal notice sent by the party claiming the default, setting out in detail the said default and requesting the defaulting party to remedy the situation; or
• Fails to pay the amount due, such default on payment remaining unchanged thirty (30) calendar days following the date of receipt of a formal demand; or
• Is subject to voluntary or forced courses of action such as dissolution, winding up voluntarily or by decision of the court, judicial settlement or appointment of an administrator, and that this situation results in an imbalance in contractual relations.

If the claimed default is not remedied within the period granted, termination will take effect on the day of receipt by the defaulting party of the notification of termination.

5.8 CONSEQUENCES OF TERMINATION

The termination of this contract, for whatever reason, does not relieve either party of its liability regarding any act or omission arising before the termination or any obligation in pursuance of its effects following the termination of the contract.

In the event of a termination due to its own default CLIENT shall: (a) discontinue all use of the SOFTWARE within 60 days; (b) return immediately to Kurmi Software all the SOFTWARE and DOCUMENTATION in its possession.

5.9 NON-SOLICITATION OF PERSONNEL

The parties will not hire, directly or through an intermediary, without the written agreement of the other party, any employee of the other party, even if this is at the initiative of the employee. This clause is valid for two years following acceptance of the solution.

5.10 AMENDMENTS AND WAIVERS

The failure of one party to exercise a right, whether immediately or not, shall not constitute the implied waiver of the said right; in the same way, the partial exercise of a right shall not constitute the waiver of any other part of the right or of the totality of any other right.

5.11 SIGNATORIES – NOTIFICATIONS

All notifications or requests of major importance that one party wishes to communicate to the other party should be made in writing and sent by ordinary, express or registered mail (for any matter regarding the right to terminate the contract), or by fax together with a copy by ordinary, express or registered mail, to the addressee at the address indicated below.
All notifications or requests should be considered as sent on the effective date of receipt by the addressee, as noted on the corresponding acknowledgment of receipt.

5.12 ASSIGNMENT OR TRANSFER

Neither party may assign or transfer this contract without the prior written permission of the other party. Such consent, which may not be retained without a valid reason, may depend on the prior execution of a given obligation or on the provision of legitimate guarantees.

5.13 PROVISIONS WITH A SPECIFIC LIFETIME

Provisions 2.1.9, 2.2.4, 5.1 and 5.7 of this contract remain in force in the event of expiry, termination or cancellation of the contract.

5.14 APPLICABLE LEGISLATION

This contract is subject to French legislation.

5.15 ASSIGNMENT OF JURISDICTION

The parties agree to assign jurisdiction for any legal proceedings relating to this contract to the Commercial Court in Paris.

5.16 ANNUAL CONTRACT REVIEW

Kurmi Software will hold, with the CLIENT, an annual review of the performance of the maintenance contract and, more generally, of all commercial relations between Kurmi Software and the CLIENT, in order to improve their performance to the advantage of the two contracting parties.

5.17 SALES LIFE CYCLE FOR KURMI SOFTWARE SUITE RELEASE

The sales life cycle for each Kurmi Software suite release has eighteen (18) months duration (except maintenance releases that are not included into a sales life cycle). After this duration each Kurmi Software suite release has reached the end-of-sales milestone and it’s no longer possible to purchase it.

5.18 CONTRACTUAL DOCUMENTS

The granting of the licence, the roll-out services and maintenance services are expressly subject to these TERMS AND CONDITIONS which constitute, together with the Proposal, the complete and sole agreement between the parties, by such constituting the contract.