General conditions for Famoco's devices' sale and FMS use
1 – INTRODUCTION
The present general conditions (“GC”) apply in their entirety to any order submitted by Client to FAMOCO or any authorized partner, in connection with hardware sold by FAMOCO (“Device(s)”) together with the right to access and use the mobile enterprise management software-as-a-service solution hosted by FAMOCO (“FAMOCO Management Suite” or “FMS”). The Devices include FAMOCO’s Android OS used on Devices for running third party software in connection with the FMS (the “FAMOCO OS”).
The Devices, FMS and FAMOCO OS may be used by Client’s employees or consultants. Client expressly warrants that such use shall be subject to all the terms and conditions of these GC.
The supply of the Devices and the right to access and use the FMS do not include the Devices, FMS or FAMOCO OS installation, configuration, adaptation or any customization services. However, FAMOCO may, upon Client’s request, provide such services in accordance with its current commercial, technical and financial conditions.
The order implies acceptance of the GC without exception. The GC prevail over any other document exchanged between the parties, in particular the Client’s general purchasing conditions, whenever such document may have been brought to the attention of FAMOCO or any authorized partner . Any condition departing from or adding to the GC shall require prior written approval from FAMOCO. All information in the brochures, leaflets, price lists, or any advertisement of FAMOCO are communicated for information purposes only, and cannot bind FAMOCO in any way, FAMOCO reserving its right to modify them at any time.
FAMOCO reserves the right to modify the GC at any time and to modify or discontinue the FMS or any part thereof with a six (6) months notice.
2 – ORDER
Any order issued by Client shall be accepted in writing by FAMOCO or any authorized partner in the form of a sales order or shall be passed by reference to FAMOCO’s commercial offer. Once acknowledged, orders may not be cancelled by Client without FAMOCO’s or any authorized partner’s prior written approval, which shall be provided under conditions allowing FAMOCO to be fully compensated for all loss or damage caused by such cancellation, including any loss of margin. Moreover, any down payment already made shall be kept by FAMOCO.
3 – DELIVERY
All deliveries shall be EXW location indicated in the sales order (Incoterms 2010), except where agreed otherwise in writing by FAMOCO or any authorized partner. All transport, insurance, duty and handling operations are borne by and at the expense and risk of the Client. Risks are transferred upon dispatch of the Devices, without prejudice to FAMOCO’s right to benefit from section 4 of the present GC. Delivery timeframes are indicated for information purposes only. In no event shall any failure to deliver Devices in such timeframes justify cancellation of the order, or grant the Client any right to penalties or damages whatsoever.
In case of export, the Client undertakes that:
– the customs broker coordinates with FAMOCO and reports to it full completion of the export formalities, in particular by providing it with the Devices’ declared prices, and
– evidence of export and/or exit of the European Union territory as well as evidence of import in the territory of use or operations is systematically communicated to FAMOCO as soon as possible after export or import.
4- OWNERSHIP – TRANSFER OF RISKS
Title to the Devices shall not pass to the Client until FAMOCO has received payment in full of the price including any applicable interest. FAMOCO reserves the right to take the Devices away in the event of non-payment in due time. FAMOCO may terminate the sale ipso jure and any down payment already made shall be kept by FAMOCO. Notwithstanding the above, Client shall be in charge of the Devices from delivery. FAMOCO thus recommends that Client subscribe from such time onwards an insurance policy to cover risks of loss, theft, degradation or destruction of the Devices.
5- THIRD PARTY SOFTWARE
The Devices contain or Client may download third party proprietary software, including their documentation, which are licensed to Client under the conditions provided for by such software editor in connection with Devices. Client agrees that the use and/or access of third party software are subject to such terms entered into directly with such third party editor. Thus, FAMOCO disclaims all warranties, indemnities, obligations, and other liabilities in connection with any third party software downloaded on the Devices. In particular, Client is solely responsible for checking and testing the compatibility of such third party software with FMS or FAMOCO OS.
6- RIGHT TO ACCESS AND USE FMS AND ASSOCIATED FAMOCO OS
Together with the Devices’ sale, FAMOCO makes available to Client, for it’s internal business purposes, (i) the mobile enterprise management software-as-a-service solution hosted by FAMOCO, called FAMOCO Management Suite (“FMS”), and (ii) support assistance under the conditions set forth in section 12 below.
The right to access and use FMS includes a personal, limited, non-exclusive and non-transferable license to use one copy, in object code form only, of the FAMOCO OS embedded on Devices purchased by Client to FAMOCO, solely for Client’s internal business purposes and solely in accordance with the applicable documentation and these GC.
Client is solely responsible for maintaining the secrecy and security of any authentication key or credentials given for access to the FMS, and for their use by any and all employees that it allows to access the FMS.
Client is prohibited from using the FMS for any illegal purpose, such as, without limitation, sending spam/unsolicited mail, forgery, violation of system or network security, storage or transfer of obscene, defamatory, pornographic or indecent material, and infringement of third party rights.
Client acknowledges that there are risks inherent in Internet connectivity that could result in the loss of confidentiality or property. Client acknowledges that FAMOCO may update the functionality, user interface, usability and other user documentation relating to FMS from time to time in its sole discretion and as part of its on-going mission to improve the FMS.
Any use not expressly agreed by FAMOCO is prohibited and Client shall not, nor cause nor permit third parties to:
(a) copy, duplicate, alter, adapt, translate in any manner, integrate into another software, disassemble, all or part of the FMS or the FAMOCO OS or the accompanying documentation, nor engage in any reverse engineering except to the extent authorized by mandatory applicable law, nor attempt to discover the source code,
(b) modify in any manner the FMS or the FAMOCO OS, except to correct possible errors only if the modification is required to insure use in accordance with the FMS or FAMOCO OS’s specifications and with FAMOCO’s prior written approval. In such event, FAMOCO reserves the right to make the changes to correct any such error.
(c) distribute, sub-license, disclose, assign, rent, loan, lease, sell, give, or otherwise transfer, even freely, the FMS or the FAMOCO OS in whole or in part, by any means, to any third party without FAMOCO’s prior written approval.
(d) remove, obscure or alter any proprietary notices or labels from the FMS or the FAMOCO OS, nor any legal notices, such as trademark or copyright notices, affixed to or contained within the FMS or the FAMOCO OS or any accompanying documentation, or
(e) use the FMS or the FAMOCO OS to create any derivative works based on all or part of the FMS or the FAMOCO OS or any related know-how or copy any of the features, functions or graphics of the FMS or the FAMOCO OS in order to develop any competing or similar product for the duration of the FMS or FAMOCO OS legal protection.
8- INTELLECTUAL PROPERTY RIGHTS
8.1. Ownership / Copyright Protection. The FMS and FAMOCO OS, and any authorized copy are the intellectual property, the valuable trade secrets and confidential information of FAMOCO or its licensors who own the relevant rights. The FMS and FAMOCO OS, are protected by law, including without limitation the copyright laws of France, the United States and other countries, and by international treaty provisions. FAMOCO does not assign any property right when licensing FMS and FAMOCO OS and reserves all rights not herein granted. Except as expressly stated herein, these GC do not grant Client any intellectual property rights in the FMS and FAMOCO OS or any enhancements and all titles, rights, including intellectual property rights and copyrights, interest in and to the FMS and FAMOCO OS or any enhancements, the accompanying documentation, whatever the form, and any copy, are owned by FAMOCO or its licensors.
8.2. Intellectual Property Rights Indemnity.
8.2.1. Defense and Covered Claims.
If a third party action is brought against Client claiming that Client’s use of the FMS or FAMOCO OS infringes a valid copyright, FAMOCO will defend Client at FAMOCO’s expense and, subject to this section and section 14 below, pay any damages and costs finally awarded against Client in the infringement action, but only if (a) Client notifies FAMOCO promptly upon learning that the claim might be asserted, (b) grants FAMOCO the sole control over the defense of the claim and any negotiation for its settlement or compromise and (c) Client fully cooperates with FAMOCO in its defense or settlement of the claim.
8.2.2. Opportunity to Cure.
If a claim described in 8.2.1 above may be or has been asserted, Client will permit FAMOCO, at FAMOCO’s option and expense, to (a) procure the right for Client to continue using the FMS or FAMOCO OS, (b) replace, as applicable, or modify the FMS or FAMOCO OS to eliminate the infringement or, if (a) or (b) is not economically reasonable, (c) terminate the agreement and refund to Client the license fees actually paid by Client to FAMOCO for the infringing FMS or FAMOCO OS, less depreciation based on a 5-year straight-line depreciation schedule.
The foregoing states the entire obligation and liability and exclusive remedy of FAMOCO with respect to infringement of any copyright caused by or arising from the use of the FMS or FAMOCO OS or any part thereof. The indemnity obligation set forth above shall not apply with respect to a claim, demand, action, cost, expense, loss or damage (hereinafter in this section « the Infringement Claim ») which arises (i) from use of the FMS or FAMOCO OS outside of the scope or in violation of these GC or from a misuse, modification, customization or enhancement of the FMS or FAMOCO OS by Client where such is a material cause of the Infringement Claim (ii) from the use of a superseded or modified release of the FMS or FAMOCO OS by Client, if the Infringement Claim would have been avoided by the use of the current or unmodified release; (iii) from the use, operation, or combination of the FMS or FAMOCO OS with programs such as customizations or development of interfaces, data, equipment, or materials not provided by FAMOCO, if the Infringement Claim would have been avoided by the use of the FMS or FAMOCO OS without such programs, data, equipment, or materials, or (iv) to the extent that Client continues the allegedly infringing activity after being informed of and provided with modifications that would avoid the alleged infringement.
9- TERM, SUSPENSION AND TERMINATION OF FMS AND RIGHT TO USE FAMOCO OS
9.1. FMS subscription
Duration for FMS’ subscription is described in the sales order. FMS subscription and FMS maintenance services are automatically renewed for successive twelve (12) months periods. Each party may notify its decision not to renew its subscription to FMS by providing the other a minimum of two (2) months prior written notice before the subscription’s anniversary date.
9.2. FAMOCO OS
The license to use FAMOCO OS is granted from Device delivery for the duration of the FAMOCO OS’ legal protection and only for the version as delivered. Client expressly acknowledges that any update of FAMOCO OS shall only be granted for a fee.
FAMOCO may suspend or restrict the access to the FMS without liability if (i) FAMOCO reasonably believes that the FMS has been used in violation of these GC, (ii) any payment by Client is overdue, (iii) where FAMOCO reasonably believes that FMS is being accessed or manipulated by a third party without Client’s consent, or (iv) FAMOCO reasonably believes that suspension of FMS is necessary to protect the network used for the FMS or FAMOCO’s other clients.
9.4. Termination of FMS and right to use FAMOCO OS
Without prejudice to any right to compensation for any damage suffered, FAMOCO may immediately terminate the agreement and the relevant order ipso jure, without further obligation or liability, (i) if Client fails to pay any applicable fees due within fifteen (15) days after receipt of written notice from FAMOCO of non-payment ; (ii) if Client or any of the users breaches any term or condition hereof and fails to correct such breach to the reasonable satisfaction of FAMOCO within thirty (30) days after FAMOCO notifies Client in writing; or (iii) to the extent authorized under applicable law, if Client ceases to carry on business as a going concern, becomes the object of the institution of proceedings in bankruptcy or liquidation, or a receiver or similar officer is appointed with respect to a substantial part of its assets. Upon termination for any reason then all rights granted to Client hereunder will cease, except for use of FAMACO OS under the present conditions. Any obligation that by its nature shall persist will survive the termination of the agreement between the parties but shall in no event imply or create any continued right to use the FMS after termination.
10 – PRICE – PAYMENT CONDITIONS
10.1. Devices’ price and payment conditions
Prices are those applicable upon sales order. Prices are EXW without taxes except where provided for otherwise in writing. FAMOCO reserves the right to pass on to the Client any increase of more than 15 % of the price of raw materials or parts used in the manufacture of the Devices occurring between the sales order and dispatch of the Devices.
10.2. FMS’ price and payment conditions
The Client agrees to pay the applicable fees in the amounts as set forth in the sales order. Fees are effective and non-cancellable upon order submission to FAMOCO.
The FMS subscription fees shall be revised upon anniversary date, except in case of non-renewal as described in Section 9 above.
10.3. Common provisions
Prices are payable 30 days from date of invoice. In accordance with article L.441-6 of the French Code de Commerce, FAMOCO may claim, in the event of late payment and without prior notice, (i) late penalties, and (ii) recovery costs corresponding to a lump sum of 40 euros, or any other amount in excess upon evidence. Late penalties shall amount to the interest rate applied by the European Central Bank to its most recent main refinancing operations plus 10 percentage points.
All amounts payable by Client are made without setoff or counterclaim and without deduction or withholding. Payment terms may not be postponed and no deduction shall be made by Client under any circumstances, even in case of dispute. In the event Client fails to pay any invoice at due date, all other invoices shall be due, regardless of any previously agreed to conditions. Breach of payment terms shall also allow FAMOCO to require full payment before dispatch, and to cancel, without compensation or notice, any orders, without prejudice to any other form of action.
11.1. Device warranty. Client shall inspect all batches upon delivery and exercise any claims against carrier, as the case may be. In addition, Client shall proceed with checks of Devices upon delivery in particular in connection with quality, quantities, references and compliance of Devices to the sales order. In no event shall any claim be taken into account after a period of 10 days from dispatch of Devices.
FAMOCO warrants for a period of twelve (12) months from delivery of the Devices that any Device shall be free from manufacturing and material defects in accordance with Device specifications so long as Devices have been used and maintained in compliance with good professional practices and with instructions as stated in the notice provided by FAMOCO. All claims related to Devices’ defects, non conformity or performance, must be submitted in writing within five (5) days of discovery of the defect. Client may obtain, at FAMOCO’s sole option, to the exclusion of any other compensation or action: (i) repair; (ii) replacement; or (iii) refund of defective Devices, reduced by the annual straight-line depreciation amount, with an expected lifetime of two (2) years.
Costs, including transport and customs formalities and duties, incurred by replacement or repair are excluded from the warranties set forth hereunder. In the event of a Device replacement, FAMOCO reserves the right to provide Client a different Device, with equivalent functionalities, than the one purchased. Any repair or replacement of a Device shall not increase the applicable warranty period. Client shall provide the description and proof of any detected defect. FAMOCO shall not accept the return of any Device without prior written return authorization.
The warranties set forth above do not apply to defects or damages due to: (i) improper handling, use or storage of Devices, including during their transport, or any other circumstances that are outside FAMOCO’s control ; (ii) use non compliant with regulations, good professional practices and with FAMOCO’s instructions and the Devices’ specifications; (iii) submission of Devices to abnormal conditions (mechanic, electric, thermal, radiation); (iv) interaction with a third party product, or installation or maintenance services; (v) in the event where serial numbers and/or nameplates of Devices have been handled, removed, or when Devices are not clearly identifiable for any other reason; or (vi) any adaptation of the Device necessary to make the Device compliant with technical or security rules applicable in other country than a Member State of the European Union, Canada or the United States of America.
11.2. FAMOCO OS warranty. FAMOCO warrants for a twelve (12) months period from the delivery of the Device that FAMOCO OS will perform substantially in accordance with the functions described in the documentation. Client’s sole and exclusive remedy and the entire liability of FAMOCO under this warranty will be for FAMOCO to make its best efforts within a reasonable period of time to correct or replace the FAMOCO OS. Any replacement FAMOCO OS will be warranted for the remainder of the original warranty period. This warranty will not apply to any problems caused by software or hardware not supplied by FAMOCO. Furthermore, Client acknowledges that (i) the FAMOCO OS may not be suitable to any and all combinations that Client may choose, and that (ii) the FAMOCO OS may not perform in every operating environment. FAMOCO shall not be held liable under this warranty (i) for any inadequate intervention on the FAMOCO OS by Client or any third party; (ii) for the use of the FAMOCO OS with a component or a third party system that is not compatible; and/or (iii) where the Device or FAMOCO OS has been subjected to abnormal physical or electrical stress, misuse, misapplication, negligence or accident.
Subject to the terms and conditions of these GC, during the applicable FMS subscription term, FAMOCO warrants to Client that the FMS shall perform materially in accordance with its documentation.
Support services are defined in the sales order or FAMOCO’s sales order or commercial offer.
13.NO OTHER WARRANTIES.
EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THESE GC, THE DEVICES, THE FMS AND THE FAMOCO OS ARE PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FAMOCO AND ITS AUTHORIZED PARTNERS DISCLAIM ANY OTHER WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. FAMOCO MAKES NO WARRANTIES OR REPRESENTATIONS THAT THE DEVICES, THE FMS AND THE FAMOCO OS WILL MEET CLIENT’S REQUIREMENTS OR THAT OPERATION OR USE OF THE DEVICES, THE FMS AND THE FAMOCO OS WILL BE UNINTERRUPTED OR ERROR-FREE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (a) IN NO EVENT SHALL FAMOCO OR FAMOCO’S SUPPLIERS BE LIABLE TO THE CLIENT FOR ANY LOST REVENUE, PROFIT, LOST OR DAMAGED DATA, OR BUSINESS INTERRUPTION, OR FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE FMS, THE FAMOCO OS, RELATED SERVICES, FAMOCO’S DEVICES OR OTHERWISE IN CONNECTION WITH THESE GC (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE), EVEN IF FAMOCO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (b) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF FAMOCO ARISING OUT OF OR RELATED TO THESE GC, INCLUDING WITHOUT LIMITATION, THE USE OF OR INABILITY TO USE THE FMS, FAMOCO OS, RELATED SERVICES, FAMOCO’S DEVICES CONCERNED OR OTHERWISE (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE) EXCEED THE FEES RECEIVED BY FAMOCO FROM CLIENT FOR THE APPLICABLE FMS, FAMOCO OS, RELATED SERVICE OR FAMOCO’S DEVICES IN THE PRECEDING SIX (6) MONTHS PRIOR TO THE DATE OF THE FIRST CLAIM, WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SET FORTH IN THIS SECTION.
15-CONFIDENTIALITY – DATA PROTECTION
All FAMOCO’s business and technical information including, but not limited to, financial information, software code, know-how, designs, methods, techniques, specifications, specific developments, marketing plans, strategies and forecasts are confidential (the “Confidential Information”). Client may only use the Confidential Information for the furtherance of these GC and shall not disclose the Confidential Information to any third party, other than employees who have a need to have access and knowledge of the Confidential Information solely for the purpose identified above. Client agrees to take all appropriate measures by instruction and agreement prior to disclosure to such employees to assure against unauthorized use or disclosure of the Confidential Information.
This non-disclosure commitment is not applicable to information already known in the public domain as of its disclosure or which subsequently becomes available to the public through no breach of this section by the Client.
15.2. Data protection.
Client is solely liable for processing personal data in connection with the FMS. Client shall comply with any and all applicable legislation in connection with personal data protection and, in particular, shall be solely responsible for making any request or fill in any form in order to obtain the necessary authorizations in connection with the process of data with the FMS, as the case may be. Client shall also inform any individual concerned by the process of personal data and obtain its consent as provided for by applicable legislation. Client undertakes to process and keep personal data in compliance and only for the furtherance of the purposes as declared to competent authorities, as the case may be, and for which it is authorized to have access and process, and shall indemnify and hold FAMOCO harmless thereof.
FAMOCO shall be automatically discharged from any and all commitment relating to sales orders in the event of the occurrence of a case of force majeure, including but not limited to strikes, fire, explosion, floods, serious accidents, earthquakes, or in any event outside FAMOCO’s control, including difficulties in the supply of raw materials or spare parts, changes to applicable regulations or delays or outages caused by an internet service provider or independent hosting facility.
Client acknowledges that the export of the FMS, FAMOCO OS and documentation, including technical data, may be subject to export or import control and Client agrees that they will not be exported (or re exported from a country of installation) directly or indirectly, unless Client obtains all necessary licenses from the U.S. Department of Commerce or other agency as required by law. In furtherance of Client’s export restriction agreements set forth above, Client agrees as follows: (a) Client represents that it is not under the control of the government of a country to which the United States has prohibited export; (b) Client will not download or otherwise export or re-export the FMS, FAMOCO OS and documentation, directly or indirectly, to the countries referenced above or to citizens, nationals or residents of those countries; (c) Client represents that it is not listed on the United States Department of Treasury lists of Specially Designated Nationals, Specially Designated Terrorists, and Specially Designated Narcotic Traffickers, nor is Client listed on the United States Department of Commerce Table of Denial Orders; and (d) Client will not allow the FMS, FAMOCO OS and documentation to be used for any purposes prohibited by United States law, including, without limitation, for the development, design, manufacture or production of nuclear, chemical or biological weapons of mass destruction.
18-APPLICABLE LAW – COMPETENT COURT
Any order issued under the present GC shall be governed by French law.
Before bringing any legal action, parties shall try to settle, in good faith, any dispute in connection with the validity, performance and termination of the sales order or their relationship. Parties shall meet in order to share their points of view and to try to find a solution to their dispute.
Parties shall make their best efforts to achieve an amicable settlement within 30 days from the notification made by one of them by registered letter with acknowledgement of receipt in order to find an amicable settlement.
Failing to find an amicable settlement, the parties expressly agree that all disputes in connection with the implementation of a sales order shall be submitted to the exclusive jurisdiction of the commercial tribunal of Paris, France, including in case of exceptional or provisional proceedings, multiple defendants or introduction of third parties.
Moreover, any judicial action by Client shall have to be brought within a period of one year of receipt of the sales order. After such period, the Client’s action shall be void.