Terms of Sales

‍HAVING PREVIOUSLY STATED THAT:

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Niagara specializes in the publishing of SaaS (“Software as a Service”) software and applications. It markets application solutions accessible online intended for connecting the factory's production systems that it designed and developed in SaaS mode. The Client wishes to use some of the SaaS services offered by Niagara for the exercise of his professional activity. As part of Niagara's duty to provide information and advice, Niagara's services were presented in detail to the Client, in particular during a demonstration and/or through a documented commercial presentation. Consequently, the Customer acknowledges and declares: Having received all the prerequisites necessary for the installation and functional and technical use of the Services; Have had the time to consult the documentation sent to him and have understood the presentation made to him of the Niagara solutions so that he commits with full knowledge of the facts; Have taken the necessary time and have the skills required to assess the relevance of using Niagara services in accordance with their needs. The Client acknowledges that the degree of pre-contractual information given by Niagara is within the limits of its knowledge of the Client's projects and needs as the latter has stated them to it and within the limits of the Client's IT infrastructure. .

After ensuring the adequacy of the services offered by Niagara with its needs and constraints, the Client has decided to subscribe to a subscription contract for the Services according to the terms and conditions of the Contract, consisting of a Contract of subscription specifying the Scope of the Services as well as these general conditions. The Customer has the option of saving and printing these general conditions using the standard functionalities of their browser or computer.‍

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IT IS AGREED AS FOLLOWS :

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DEFINITIONS

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CONTRACT : contractual package agreed between the Parties, including these general conditions, any orders placed by the Customer within the framework of this contract, and the other documents expressly mentioned, as well as the reports, studies and plans provided by Niagara in execution of this CONTRACT.

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Effective Date : date of entry into force of the provisions of the Contract as set by the Contract, or failing that date of start of performance of the Services.

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Intellectual property rights : any intellectual, industrial or artistic property right, such as patent, trademark, design, model, know-how, software, and any related or equivalent right or element. 

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Deliverables : any report, tool, solution or system agreed in the Contract and Appendix 1, or defined by the Parties and which must be delivered to the Client.

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Services : services the execution of which is entrusted to Niagara under the Contract, detailed in section VIII of the Contract and in Appendix 1.

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ALS Or Service Level Agreement : describes the service commitments made by Niagara and attached in Appendix 2.

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Application solution : data flow connectivity and automation tool designed and developed in SaaS mode providing in a non-exhaustive way: *An interface for visualizing data flows, data, systems; A monitoring interface via dashboards;

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OBJECT OF THE CONTRACT

The purpose of the Contract is to define the technical, legal and financial conditions for the execution by Niagara for the Client of the Services detailed in section VIII of the Contract and in Appendix 1.

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CONTRACT DOCUMENTS

The contractual documents constituting the Contract are the articles of the Contract and the Annexes. The parties voluntarily waive the application of their respective general conditions of sale or purchase, which are therefore expressly excluded. The Parties declare that they have freely negotiated all the terms and conditions of the contract. This therefore constitutes a private contract within the meaning of article 1110 of the civil code.

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OBLIGATIONS OF THE PARTIES

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1. General obligations of the Parties

Appoint a person capable of representing it with the power to take or have the decisions necessary for the proper execution of the Services taken; Execute in good faith the obligations imposed on it by the Contract; Ensure the availability, cooperation and competence of its personnel assigned to the execution of the Services.

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2. Niagara Bonds

Provide the Services with the competence in force in the profession and in accordance with the provisions of the Contract and the rules of the art applicable in its field of competence; Strictly comply with any legal or regulatory obligation, particularly in matters of employment; Has an obligation advising the Client on any choice or request made by him of which he is directly or indirectly aware and which could affect the objectives attached to the provision of the Services; must alert the Client of any event of which it is directly or indirectly aware, which may affect the Services or the commitments of the Parties, including if this event is attributable to the Client; Undertakes to deliver the Services in accordance with the SLA in Appendix 2 .‍3.  

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Customer Obligations

Provide Niagara with all the elements it is responsible for when Niagara requests them (users, factory structure and list of workstations, list of machines, standard parameters); Also ensure access to its premises, if necessary, for Niagara personnel for the activities that must take place there and provide the necessary means to carry out these activities; Put Niagara employees in contact with all the people in its company concerned by the provision of the Services; Proceed within the agreed deadlines or failing that as soon as possible with the validations at your own expense in the event that validation is planned.

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EFFECTIVE DATE – DURATION

The Contract comes into force on the date of its signature known as the Effective Date. The Contract is concluded for a period of 1 year, renewable by tacit agreement for successive periods of 1 year. It may be denounced by one of the parties with notice of three (3) months before the initial term or the term of renewal by registered letter with acknowledgment of receipt or termination by one or the other of the Parties in accordance with the provisions of article 18.‍

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TERMS OF EXECUTION OF SERVICES

The Client and Niagara have agreed on a methodology for deploying the Application Solution. This methodology is included in Appendix 3.

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MODIFICATION OF SERVICES OR THEIR SCOPE

The Client reserves the right, at the start of the performance of the Services, to extend the Services to other sites or subsidiaries under the conditions provided for in Appendix 1. However, any modification of the Services must be subject to by written agreement of both parties.

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SERVICES AND FEATURES

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1. Descriptions of functionalities and services

The functionalities included in the Application Solution designed and developed in “Software As A Service” mode and offered by Niagara include a web application and allow, in a non-exhaustive way, to:

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2. Languages 

Niagara will use its best efforts to ensure that the Application Solution is available in another language within fifteen days of the Customer's written request.

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3. Niagara Failure:

In the event of a major failure by Niagara, a cessation of development or maintenance of the Application Solution or the cessation of its activity, the Customer may have the source code free of charge and continue to use the Solution for its own needs only. . It is expressly agreed between the parties that the Client will not be able to market the Application Solution to third parties, even free of charge. In the cases referred to in this paragraph, the Client expressly undertakes to respect all of the provisions set out in Article XII “Intellectual Property”.

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4. Customer Data (in operation): 

The Client owns the data integrated into the Application Solution based on the Client's data. It is understood that the Client authorizes Niagara to use the data entered by users of the Application Solution in order to enable its solution to operate under the conditions provided for by the Application Solution. Niagara undertakes not to transmit, assign or authorize the consultation of the Client's data to a third party, without written authorization from the Client. The data must be able to be transferred to a server so that the Client can not only archive it in its environment but also exploit them as it wishes. Niagara undertakes to transmit this data to the Client upon written request from an authorized person of the company. With regard to personal data, Niagara undertakes to comply with the applicable legal provisions, the SLA in Annex 2 and the specific commitments in Annex 4. The data must be able to be transferred to the Customer in usable data format. by the Customer within one (1) month of the end of the contract.

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FINANCIAL CONDITIONS

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1. Price

The services covered by this Contract are carried out by Niagara at the rate mentioned in Appendix 1. This rate is firm and fixed for the agreed tasks and deliverables. By express derogation from Article 1195 of the Civil Code, the Parties agree to assume the risks resulting from the occurrence of unforeseeable circumstances and therefore waive the right to request the termination of the Contract or a renegotiation of its terms and conditions, even in the event of change in unforeseeable circumstances which would make the performance of the contract excessively onerous. Niagara's travel costs may be subject to reimbursement on the basis of actual costs within the limits of the travel policy applicable to the Client. The Customer must validate that he is responsible for the costs upfront.

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2. Billing

Invoicing will be done at the level of each legal entity in the Client's group that uses the Application Solution. If a legal entity has several establishments, invoicing will be done at the level of the legal entity. Billing will be done quarterly in advance. In the event that the Contract is validated outside of these dates, invoicing will be prorated for the remaining days of the quarter and triggered on the day the contract is signed. Payment will be made on the 30th of the month. Billing will be done in euros and payment will also be made. Payment will be made by transfer to the RIB/IBAN provided by Niagara. Any unjustified late payment will be subject to penalties under the conditions provided for by the provisions of article L 441-6 of the commercial code.

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STAFF

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1. Niagara Staff Status

The services will be carried out by Niagara staff or agents who remain under the exclusive authority and responsibility of Niagara. In the event of intervention on the Client's site, it will comply, for the proper execution of the Services, with the internal regulations of the Client's site that the latter will have previously communicated to it. Niagara declares that it has fulfilled all its obligations as of with regard to articles L.8211-1 of the Labor Code relating to hidden work. He also certifies on his honor that he has not been the subject, during the last five years, of a conviction entered in bulletin no. 2 of the criminal record for the offenses referred to in articles L.8221-1 , L.8221-3, L.8251-1, L.8231-1, L.8241-1 of the Labor Code. These provisions must be applied and bind Niagara for the entire duration of the Contract.

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2. Non-solicitation and non-poaching of stakeholders

Each Party undertakes not to poach, hire or employ directly or indirectly any person who has participated on behalf of the other Party in the performance of the Services provided for in the Contract, without the prior written agreement of the other Party. This obligation is valid for the duration of performance of the services increased by twelve (12) months after the end of the contract.

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LIABILITY / GUARANTEE

Niagara guarantees the execution of the Services under the conditions agreed in the SLA in Appendix 2. It must exercise all diligence to implement the commitments made, particularly in terms of deadlines for taking problems into account and their resolution. Niagara alone determines the composition of its team and provides its supervision alone. The agents, servants and/or collaborators employed by Niagara for the performance of this contract remain under its sole control and direction. The liability of each Party may be incurred under the conditions of common law solely for direct and foreseeable damage suffered by the other Party, resulting from a failure to fulfill its contractual obligations as defined herein. The Parties therefore waive the right to seek compensation from the other Party for any reason whatsoever, for indirect damage, and in particular, loss of profit, loss of opportunity, commercial and financial loss, increase in general costs or losses originating from or being the consequence of the execution of these presents. Furthermore, in the event of failure to fulfill one of its obligations hereunder, each of the Parties assumes full responsibility for the consequences resulting from its faults, errors or omissions and any damage caused to third parties.

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INSURANCE

Each Party guarantees the other Party having taken out the necessary insurance policies to insure and guarantee the consequences of its professional civil liability in the event that it is involved, so as to cover the financial consequences of the damages for which it would have to respond, which will be attached in Annex 5. Each of the Parties undertakes to maintain these insurance policies throughout the duration of execution hereof.

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INTELLECTUAL PROPERTY

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1. Ownership of rights

This Agreement does not confer on the Client any intellectual property rights of any nature whatsoever over the “Software As A Service” application solution developed by Niagara which remains its full and entire property, which the Client expressly acknowledges and accepts under the terms of the present.

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2. Client Brand

The Client is the owner of its brand and does not grant any rights of use to Niagara under this Contract. The Client authorizes Niagara to use the logo and its name as a commercial reference. Any other use must be subject to written authorization.

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CONFIDENTIALITY

Unless expressly provided otherwise, all information exchanged between the Parties, before or after the date of entry into force of the Contract, or brought to the attention of one of the Parties during the performance of the services, is or have been kept confidential and may only be used for the purposes of the Contract. Both in its own name and in the name of its collaborators, the Party which receives information undertakes as such: Not to use confidential information for purposes unrelated to this Contract; Not to communicate all or part of this information to a third party without the prior written consent of the other Party; To only disclose this information to members of its staff who will need to know it for the performance of the services and ensure that they undertake to respect the terms of this confidentiality clause; Not to copy or reproduce, in any manner whatsoever, this information other than that necessary for the execution hereof. This commitment will remain in effect for a period of three (3) years after the expiration or termination hereof.

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FORCE MAJEURE

Neither Party may be held liable to the other Party in the event that the performance of its obligations is delayed, restricted or made impossible, due to the occurrence of a force majeure event. force majeure means the occurrence of an event presenting the characteristics of unpredictability, irresistibility and externality to the Parties usually recognized by French law and courts. The Parties expressly acknowledge that the following events have the characteristics of force majeure and will have the same effects as the latter: viruses, attacks or any act leading to the paralysis of the Internet network or blocking the use of hardware and IT solutions. The Party affected by a case of force majeure or one of the above-mentioned events undertakes to notify it without delay, as far as possible, to the other Party. The obligations of the Parties will then be suspended for the entire duration of the event for a period which may not exceed three (3) months. The Parties will come together to determine together the most appropriate means to mitigate, if possible, the consequences of the event(s) constituting the force majeure. In the event that the force majeure event were to continue beyond the above-mentioned period, either Party may terminate this Contract, automatically, without notice and without right to compensation of any nature whatsoever, by sending a registered letter with acknowledgment of receipt with immediate effect. This letter must mention the intention to apply this clause.

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ASSIGNMENT OF THE CONTRACT

The Contract cannot be the subject of a total or partial assignment by one Party, without the prior written consent of the other Party.

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SUBCONTRACTING

Niagara may subcontract part of the Services. In this case, Niagara undertakes to inform the Client in writing, including by email, of its desire to subcontract at least five (5) days before the planned conclusion of the subcontracting contract.

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TERMINATION

Each party has the possibility of terminating this contract under the conditions provided for in articles 1226 et seq. of the Civil Code, subject to sending a formal notice to the defaulting party which remains without remedy for a period of one (1) month, then from the notification of the resolution thereto.

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CONSEQUENCES OF THE END OF THE CONTRACT

At the end of the Contract, whether it is its normal expiry, its denunciation or its resolution, Niagara will recover the materials or documents belonging to it which would have been deposited on the Client's site and will return those which would have been released. its disposal by the Customer. The provisions of this contract intended to survive its end will continue to produce their effects, and in particular articles 10, 12, 13, 18, 19, 20. The Customer will retain ownership of any equipment supplied by Niagara under this contract. contract, but will no longer be able to access the online services and Services.  

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GENERAL CLAUSES

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1. Independence of the Parties

Each Party hereto constitutes an independent legal entity, legally and financially, and acts in its own name and under its sole responsibility. The Contract constitutes neither an association nor a mandate given to one of the Parties by the other Party.

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2. Completeness

The Contract expresses the entirety of the obligations of the Parties. It takes precedence over any other document issued or signed by the Parties, including their general conditions of sale or purchase, or over any previous agreement, written or verbal, relating to the same subject. Any modification made to the Contract must, to be valid, be the subject of an amendment signed by the authorized representatives of each of the Parties.

3. Non-competition

The Client expressly undertakes not to develop and/or have developed any product competing with Niagara Solutions or any product presenting functionalities and/or a purpose substantially similar to these, for the entire duration of the Contract and a period of three (3) years from the end of the said Contract for any reason whatsoever.

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4. Notification

Unless otherwise provided, any notification to either Party required under the terms of the Contract must be made by registered letter with acknowledgment of receipt to the address mentioned at the top of this document, or to an address specified subsequently in writing by the one of the Parties to the other Party.

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APPLICABLE LAW – DISPUTES

The law applicable to all disputes likely to arise in connection with the Contract, and in particular its existence, its validity, its formation, its interpretation, its execution or its termination is French law. In the event of a dispute arising from the Contract or in connection with it, the Parties agree to seek an amicable solution before any legal action. Any dispute arising from pre-contractual relations, or linked to the validity, execution, termination or The interpretation of the Contract will be subject, in the absence of amicable agreement, to the exclusive jurisdiction of the Paris Commercial Court to which the Parties expressly grant jurisdiction even in the event of multiple defendants, warranty appeal, emergency or summary proceedings or even opposition upon injunction to pay.