Terms & Conditions
1.1 KURMI SOFTWARE SUITE
Kurmi Software Suite is a value-added, unified, provisioning, selfcare and communication services software suite which enables Communication over IP solution to be managed.
1.2 KURMI SOFTWARE
Kurmi Software is the company with exclusive ownership of the intellectual property rights over the software components of this software suite. These property rights do not cover the open source software delivered and installed by Kurmi Software (software tools and software libraries).
Software including the open source software provided by Kurmi Software for the CLIENT in its initial version and later versions in accordance with the maintenance service selected by the CLIENT.
The CLIENT is either a COMPANY or an INTEGRATOR which designs and deploys Communication over IP solutions for “COMPANIES”.
Any ORDER placed by the CLIENT in reference to a Proposal made by Kurmi Software while the offer is still valid, accepted by Kurmi Software. The Proposal and these Terms and Conditions form the contract between the parties.
1.6 SOFTWARE FEATURES
The features are outlined in the Proposal.
1.7 SOFTWARE TRANSMISSION MODE
The software is provided in the form of object or native machine code and is accompanied by DOCUMENTATION.
Hardcopy or electronic documentation relating to the SOFTWARE, in its initial version and later versions in accordance with the maintenance service selected by the CLIENT.
1.9 INTERFACE CUSTOMISATION
This refers to all settings and customisation carried out by Kurmi Software at the request of the CLIENT. The CLIENT remains the sole owner of the results of this customisation.
1.10 CORRECTIVE UPDATES
New SOFTWARE releases correcting faults encountered in the previous version.
1.11 MINOR RELEASES
Releases containing improved features as well as patches for problems. For these releases, the number after the decimal point changes; version 1.1 is thus replaced by version 1.2.
1.12 MAJOR RELEASES
New editions of the SOFTWARE comprising modifications relating to design, features and/or system structure as well as additional features. A release is identified by a specific edition number (for example changing from 11.0 to 12.0).
Malfunctions or defects which have a more or less disruptive impact on the operation of the SOFTWARE. Faults are dealt with as part of the maintenance service.
1.14 PREREQUISITES FOR USE
The “PREREQUISITES” refer to the hardware and software configurations set out in the Proposal and to their environment and usage conditions.
These configurations include the related service platforms required for the roll-out of the Kurmi Software Suite.
Agence pour la Protection des Programmes (Agency for the Protection of Programs). This organisation is the holder of the SOFTWARE source codes on two accounts: to protect the intellectual property rights of the SOFTWARE authors and to allow the CLIENT to have access to the source code in the event of a failure by Kurmi Software to fulfil its obligations (see 2.1.9). Kurmi Software undertakes to file each MAJOR RELEASE of the SOFTWARE with the APP.
1.16 LOCALIZED VERSIONS
Unless otherwise specified in the Proposal, the software release which is the subject of this contract is the French version. Kurmi Software is developing releases for various other countries. The CLIENT may purchase a right of use for the country releases which it requires and which are being developed by Kurmi Software. It is, however, specified that nothing in this contract obliges Kurmi Software or the authors to adapt the SOFTWARE or to develop it in order to comply with any particular needs, legal systems or countries.
2. Licensing conditions
2.1 SCOPE OF THE RIGHTS CONFERRED BY THE LICENCE
Kurmi Software grants the CLIENT an operating LICENCE for the SOFTWARE. This LICENCE is granted to the CLIENT for an unlimited period. The price of this LICENCE may be broken down into a fixed sum and a variable part which depends on the number of extensions declared in the database. Except in the case of a particular configuration for several servers, this LICENCE is intended to be used on a single specified server on which the SOFTWARE is installed. This server, identified at the draft phase, is registered in Kurmi Software’s database; only this server may be used to manage the implementation of the SOFTWARE and the database. The CLIENT must give prior written notification, receipt of which must be acknowledged by Kurmi Software, of any change in the server.
The initial number of extensions declared in the database is mentioned in the Proposal. The CLIENT is informed that the SOFTWARE includes “licence management” check keys which prevent it from being used for more extensions than the number ordered.
Kurmi Software reserves the right to perform audits in order to ensure compliance with the provisions of this contract.
These audits may take place once a year and will be financed by Kurmi Software unless they reveal failure by the CLIENT to carry out the obligations outlined above. In this case, as well as the immediate payment of the licences owed, the CLIENT will be required to refund Kurmi Software the entirety of the costs incurred by the performance of these audits, Kurmi Software reserving the option to invoke the provisions relating to the failure to fulfil a major contractual obligation.
The SOFTWARE is provided in the form of object code.
This non-exclusive LICENCE of unlimited length is personal: at any moment there is only one LICENCE holder who is also the only holder of the copy of the object code passed on in pursuance of this contract and of any subsequent copies made under the conditions set out below.
The CLIENT is permitted to make two copies of the SOFTWARE and its DOCUMENTATION as backups, to carry out tests or for archiving purposes. The statement of copyright must be reproduced on each copy and each saved copy in such a way that the CLIENT is able to justify its existence in compliance with the provisions of this contract.
All copies of the SOFTWARE, in whatever form, including partial copies and all other material provided by Kurmi Software concerning the SOFTWARE, are the exclusive intellectual property of Kurmi Software (with the exception of the open source software mentioned in 1.2).
The CLIENT is not permitted to (a) translate (b) modify the SOFTWARE nor to allow a third party to do so.
The CLIENT undertakes not to render or attempt to render inoperative any security measure integrated in the SOFTWARE.
The CLIENT also agrees not to carry out reverse engineering, nor to decompile or disassemble the SOFTWARE, nor to attempt to do so or to allow a third party to do so.
The CLIENT may have access to the source code in the following exceptional circumstances: after having provided detailed evidence of the failure of Kurmi Software or its legal successors either to correct critical or major faults or to adapt the SOFTWARE to new versions of the Operating System. In this case, the CLIENT will have access to the source code solely for the needs set out above, detailed in its claim to the Agence pour la Protection des Programmes; in pursuance of its regulations, the board of arbitration will be called to examine both sides to ascertain the validity of this claim.
The APP will only pass on to the CLIENT the parts of the SOFTWARE concerned. The CLIENT, in temporary possession of the SOFTWARE source codes, will ensure that their use is solely reserved to the needs defined in its claim and will treat the source code as a confidential document subject to the provisions outlined below in 5.1.
2.2 WARRANTY, REPRESENTATION AND LIMITATIONS
The following WARRANTY representation and limitations constitute the entirety of the applicable provisions in this area. WARRANTY provided by Kurmi Software is as follows:
Warranty relating to the SOFTWARE storage device (CD ROMs etc.)
For three months following delivery : replacement of potentially defective storage devices, subject to these being packaged and returned by the CLIENT to Kurmi Software at its own cost, Kurmi Software bearing the cost of the return of the new storage device to the CLIENT.
Warranty of compliance
Kurmi Software Warrants the CLIENT that the SOFTWARE will comply with the features outlined in the document ‘Functional Description’ annexed to the proposal.
Warranty of operation without disruption
Kurmi Software warrants that the SOFTWARE is substantially lacking in defects that could be reproduced by Kurmi Software in operating conditions that comply with the PREREQUISITES FOR USE; however, Kurmi Software does not guarantee that the CLIENT will be able to use the SOFTWARE continuously without encountering faults which are, by nature, inherent to any software product.
This warranty does not cover SOFTWARE which has been modified in any way unless the author of these modifications is Kurmi Software; it does not cover problems arising from the use of other software used with SOFTWARE NOT PROVIDED BY Kurmi Software or from a malfunction or a modification of the operational characteristics of any computer or operating system associated by the CLIENT with the SOFTWARE.
Warranty regarding third parties intellectual rights.
Kurmi Software guarantees that the rights of use granted over the SOFTWARE and its documentation, as well as any service provided by Kurmi Software to the CLIENT, do not violate any contractual arrangements or intellectual property rights belonging to third parties.
Kurmi Software undertakes to defend the CLIENT against any claim, to compensate it for any costs and/or damages and interest incurred on the basis of such a claim made against the CLIENT if: (1) it concerns the violation of an intellectual property right; (2) it concerns the SOFTWARE in the form provided to the CLIENT; (3) the CLIENT immediately notifies Kurmi Software in writing, entrusting Kurmi Software with the exclusive defence and negotiations with a view to a settlement or compromise solution with the third party and (4) the CLIENT provides Kurmi Software with all assistance required to contest the claim.
If the claim made by a third party regarding the violation of property rights is successful, the CLIENT accepts that Kurmi Software may, at its own cost, (i) modify or replace the SOFTWARE or parts of the SOFTWARE in question, depending on which solution is more beneficial, or (ii) obtain for the CLIENT the right to continue to use the SOFTWARE. If neither of these options is reasonably acceptable in the opinion of Kurmi Software, the CLIENT should, at the request of Kurmi Software, return the SOFTWARE to Kurmi Software, which will refund the cost of the LICENCE.
The obligations set out above do not apply to any legal proceedings based on the violation or alleged violation of any patent or copyright resulting from the combined use of the SOFTWARE and its DOCUMENTATION in full or in part with any elements not provided by Kurmi Software.
It is stipulated that the CLIENT INTEGRATOR is solely liable for any commitments towards its clients.
3. Roll-out conditions
Roll-out requires the participation and cooperation of the CLIENT. It is the responsibility of the CLIENT to implement material resources and to provide human resources of its company which are necessary for project management, participation in tests, staff training, provision of equipment or carrying out of any work.
The roll-out of the Kurmi Software Suite involves four systematic stages: prerequisites and implementation of the project, audit, installation and training, as outlined in the Proposal. A fifth service entitled “Customisation” is optional. All of these closely related services are carried out according to the conditions outlined in the Proposal and the supplementary conditions set out below.
Document provided by the CLIENT outlining the required features, including all necessary information as well as the files belonging to the CLIENT that are necessary for the customisation service; the CLIENT warrants that it holds all intellectual property rights over the trademarks, logos, sounds, images, etc. passed on to Kurmi Software, or has received the consent of their owner.
3.1.2 Customisation specifications
The specifications are considered as under progress until Kurmi Software draws up a document entitled CUSTOMISATION SPECIFICATIONS which includes, as well as the final specifications, the work schedule, the cost of the overall service, and the financial phases.
This price includes all costs relating to this service.
This document also sets the fixed price for a day of servicing and for the travel and overnight costs incurred for professional service by Kurmi Software’s staff in the event that, due to the CLIENT or at the request of the CLIENT, services not included in the package should be carried out.
This refers to work in any form including eventually, programs in object code and source code, carried out specifically for the project by Kurmi Software.
3.2 SCHEDULE FOR THE IMPLEMENTATION OF THE PROJECT
The overall and specific deadlines for each type of service are indicated in the Proposal; Kurmi Software will provide the required expertise in terms of professionalism and personnel; adherence to the deadlines is also strongly dependent on the involvement of the CLIENT; therefore such schedules shall be considered only as guidelines.
It is the responsibility of the CLIENT to take all necessary measures against the risks of loss or accident relating to programs, data and/or files that it entrusts to Kurmi Software and therefore to undertake the corresponding necessary backups. The CLIENT may in no case hold Kurmi Software liable for any damage caused to the aforementioned programs, data or files.
3.4 WARRANTY FOR CUSTOMISATION WORK
Developments fall within a complex domain of information technology; it is not feasible to carry out tests covering all possible usages. Kurmi Software does not warrant therefore that the code resulting from customisation work is free from errors.
During a period of two months after receipt and no later than three months following the delivery date, Kurmi Software undertakes to make every effort, at its own cost, to correct defaults, by any means it considers useful as quickly as possible from the moment the CLIENT notifies Kurmi Software in writing (a detailed report) existence of such a default. This warranty does not cover any use non compliant with the documentation or modifications made by the CLIENT to the SOFTWARE or to the code resulting from customisation work. This warranty is exclusive of any other.
Upon expiry of this warranty period the maintenance contract concluded with Kurmi Software will incorporate the aforementioned Specific Developments. The Proposal, in its “Prices” section, outlines the cost of this maintenance.
3.5 OWNERSHIP OF THE RESULTS OF CUSTOMISATION WORK
This ownership concerns documentation, procedures and algorithms as well as programs. These belong to the CLIENT, Kurmi Software remaining the sole holder of the intellectual property rights over the Kurmi Software tools implemented in order to carry out the work.
4. Maintenance and support conditions
In order to benefit from all maintenance and support services, the CLIENT must have previously subscribed to the maintenance services outlined below.
Kurmi Software offers the CLIENT a maintenance and support SERVICES, and PROFESSIONAL SERVICES ON REQUEST. These services are outlined in the Proposal.
4.2 PREREQUISITES FOR ALL SERVICES
4.2.1 Technical prerequisites
The CLIENT will provide a remote connection with free access for Kurmi Software to any production environment and/or test environment reflecting the settings and data of the production environment. Access to the remote connection requires a computer with MS Windows and an Internet connection (able to support a NAT (Network Address Translation) device). The available bit rate on the remote access to the CLIENT must be sufficient to allow rapid software updates. The CLIENT will provide Kurmi Software with a licence for use and the installation packages for any supplementary software or hardware necessary for remote connection to its network.
The CLIENT will provide Kurmi Software with any information necessary for the resolution of a problem, including the configuration files for other equipment and the user database.
The CLIENT will ensure that the service platform’s technical characteristics comply with Kurmi Software’s prerequisites for use and recommendations.
The CLIENT undertakes to use the SOFTWARE in accordance with its documentation and with state of art technical practice.
Any request must contain sufficient information to allow Kurmi Software to recreate the incident described on its own machines or on the CLIENT’s test machines.
4.2.2 Security prerequisites
The Kurmi Software software solution incorporates internal security devices. The CLIENT is responsible for taking the necessary action to maintain the security of the service platform against potential attacks. The CLIENT is responsible for defining the global architecture in which the SOFTWARE will be installed, taking into account the potential risks of pirating and taking necessary preventive measures.
The CLIENT should ensure that the OS and the software packages of this OS do not contain security flaws and should update them if necessary. Kurmi Software may in no case be held liable for any malicious action carried out on the platforms used by the CLIENT.
4.2.3 Administrative and financial prerequisites
Payment of maintenance fees which are billed in full at the beginning of the contract;
Appointment by the CLIENT of two (2) of its employees as the main technical contacts for technical queries.
Any queries for Kurmi Software’s technical support centre should be asked by one of these two (2) representatives.
4.3 CORRECTIVE AND ENHANCEMENT MAINTENANCE
The aim of Corrective maintenance is to solve defaults.
A “default” is a malfunction in the SOFTWARE identified by the CLIENT or by Kurmi Software which prevents the normal operation of the SOFTWARE.
Every default is subject of an assessment as to its criticality level by the CLIENT (default encountered by the CLIENT) or by Kurmi Software (fault identified by Kurmi Software in the absence of a service request).
Defaults are classified according to three levels: critical, serious and minor
The method for correcting programming errors is determined by Kurmi Software and may include, among other things, a patch, a restriction on usage, a workaround for the programming error, an update or a Service Pack.
Subscription to the corrective and enhancement maintenance service provides access to the latest release published by Kurmi Software for the core Kurmi Software Suite and access to the latest release of the connectors deployed within the CLIENT’s project and available in the Kurmi Software Suite connectors’ portfolio.
4.3.2 Service availability
This service is available during Kurmi Software’s normal working hours (9am to 6pm, French time), five (5) days a week (Monday to Friday), not including Bank Holidays.
4.3.3 Service access
The Kurmi Software support centre is accessible via a web portal. The connection identifiers will be provided by Kurmi Software after the installation phase.
The CLIENT should report any faults directly to the Kurmi Software base for recording faults, available on the Internet.
Should this not be possible, the fault may be reported by email. The fault report must contain sufficient information to allow Kurmi Software to recreate the fault on its own machines.
Kurmi Software will undertake to keep a record of any faults reported by the CLIENT and any service requests. This record will include the date and time of notification and the recommendations or corrective action taken by Kurmi Software or the CLIENT.
4.3.4 Processing of faults
Faults are classified according to three types depending on their criticality level:
Fault with no possible “workaround” which systematically prevents the correct operation of the production process;
Fault which only has a limited impact on production service quality or which concerns some minor operations;
Minimal disruption to service quality.
Each level of fault is treated differently by Kurmi Software, it being understood that the process for dealing with any fault of whatever criticality type is systematically carried out according to level:
Kurmi Software only provides level 3 maintenance.
The integrator or company is responsible for providing levels 1 and 2.
Dealing with calls from Kurmi Software Suite users
Processing and resolution of faults by the company or integrator
Processing and resolution of faults by Kurmi Software
Description of the servicing process
|Carried out by||Tasks to be carried out regardless of the criticality level of the fault|
|CLIENT COMPANY OR CLIENT INTEGRATOR LEVEL 1||
|CLIENT COMPANY OR CLIENT INTEGRATOR LEVEL 2||
|KURMI SOFTWARE LEVEL 3||
4.3.5 Kurmi Software’s commitments to solving faults
18.104.22.168 Critical fault
The fault will be addressed and analysed no more than four hours after receipt of the fault report.
Once the cause of the problem has been identified by Kurmi Software and communicated to the CLIENT, Kurmi Software will provide a patch or workaround within one working day.
In the event that there are major difficulties in solving a problem, the CLIENT may grant additional time at the request of Kurmi Software.
22.214.171.124 Serious fault
Kurmi Software undertakes to provide a patch or workaround for the fault within five working days of the date of receipt of the fault report.
126.96.36.199 Minor fault
Kurmi Software undertakes to provide a patch or workaround with a classification of the fault within 20 working days of the date of receipt of the fault report.
When a fault is corrected, Kurmi Software will inform the CLIENT and will proceed with installing the patches subject to the provision by the CLIENT of a remote connection to the server on which Kurmi Software Suite is deployed.
The maintenance services stipulated in this contract include the installation of patches subject to the provision of a remote connection to the server by the CLIENT.
They do not include services relating to:
Faults caused by third party products;
Faults resulting from customisation work not included in the Proposal;
Any service required because of SOFTWARE use which does not comply with the documentation;
Faults due to problems which are not caused by a fault in the Kurmi Software Suite.
Likewise, the installation of a new software release is not included in the maintenance services but will be covered by a specific service proposal.
4.3.7 Professional services on request
“PROFESSIONAL SERVICES ON REQUEST” describes services which are not covered by the contract. These services may have been requested by the CLIENT during a maintenance service even though they are not covered by the contract or may be requested at the initiative of the CLIENT outside any maintenance service. Kurmi Software will charge the CLIENT for these services on the basis of the time spent in accordance with the terms laid down in the Proposal.
Professional services on request are only provided if the CLIENT has previously subscribed to a maintenance service.
4.3.8 Term and renewal
The term of the contract is one (1) year from the date of its entry into force. It enters into force on the day of acceptance of installation. It is automatically renewed for consecutive periods of one (1) year unless one of the parties informs the other, subject to a notice period of sixty (60) days before the expiry of the current period of validity, of its intention not to renew the contract.
4.3.9 Availability and life cycle of technical support for current Kurmi Software suite release
Kurmi Software insures the CLIENT availability of technical support subject to the conditions outlined above as well as to the conditions of the product life cycle terms listed as follows:
Considering an incident is raised to Kurmi Support at a date Ti, on the version of the product for which the corresponding Nx version was officially released at a time Tr (see table for release in the next chapter), then the commitments resolution depend on (Ti – Tr):
Ti – Tr < 12 months
Kurmi Software is committed to provide the CLIENT with analysis, bug fixes, maintenance releases or workarounds for all kind of faults identified (minor, major, blocking),
12 months < Ti – Tr < 24 months
Kurmi Software is committed to provide the CLIENT with bug fixes, maintenance releases, workarounds for blocking faults only and available fixes, maintenance releases and workarounds already identified.
24 months < Ti – Tr < 36 months
Kurmi Software is committed to provide the CLIENT with fault analysis, and only available identified bug fixes, maintenance releases or workarounds,
Ti – Tr > 36 months
The current version is considered end of support and Kurmi Software no longer provides this service to the CLIENT since the version is considered as end of life.
The same milestones are allocated to the release N.X and its associated minor releases N.X.x.
The end-of-support milestones for each existing release are presented in the DRC058 Kurmi Software Releases Life Cycle document.
The availability of this service is guaranteed if the CLIENT has at least subscribed to a maintenance service for the concerned version. If this is not the case, the CLIENT will have to acquire the updates of its version of the SOFTWARE prior to the conclusion of the maintenance contract.
If the subscribed service proves to be unavailable, the CLIENT may have recourse to the use of source codes under the conditions laid down in 2.1.9.
Kurmi Software will be refunded by the CLIENT for all travel and living expenses incurred as part of the maintenance contract and paid by Kurmi Software, inasmuch as the CLIENT has requested the visit and that the visit was not necessary to carry out the services concerned. Kurmi Software will provide detailed justification of these costs on requesting the refund.
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
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.