Niagara specializes in the field of software and SaaS ("Software as a Service") applications. It markets online application solutions for the connection of factory production systems that it has designed and developed in SaaS mode. The Customer wishes to use some of the SaaS services offered by Niagara for the exercise of its professional activity. As part of Niagara's duty to inform and advise, Niagara's services have been presented in detail to the Customer, including during a demonstration and/or through a documented commercial presentation. Accordingly, the Customer acknowledges and represents that: it has received all the necessary prerequisites for the installation and functional and technical use of the Services; it has had time to review the documentation sent to it and has understood the presentation of Niagara's solutions in such a way as to make an informed commitment; and it has taken the time and has the skills required to assess the appropriateness of the use of Niagara's services in accordance with its needs. The Customer acknowledges that the degree of pre-contractual information given by Niagara is within the limits of its knowledge of the Customer's projects and needs as stated by the Customer and within the limits of the Customer's IT infrastructure.
After having ascertained the adequacy of the services offered by Niagara with its needs and constraints, the Customer has decided to subscribe to the Services according to the terms and conditions of the Contract, consisting of a Subscription Agreement specifying the Scope of Services as well as the present general conditions.The Customer has the option to save and print the present general conditions using the standard features of its browser or computer.
IT IS AGREED AS FOLLOWS:
DEFINITIONS
Contract: contractual whole agreed between the Parties, including these general conditions, any orders placed by the Customer under this contract, and the other documents expressly mentioned, as well as the reports, studies and plans delivered by Niagara in execution of this contract.
Effective Date: The date the provisions of the Agreement take effect as set forth in the Agreement, or if not, the date the Services begin.
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.
Deliverables: any report, tool, solution or system agreed upon in the Contract and Schedule 1, or defined by the Parties and to be delivered to the Customer.
Services: the services to be performed by Niagara under the Agreement, as detailed in Section VIII of the Agreement and Schedule 1.
SLA or Service Level Agreement: describes the service commitments made by Niagara and attached in Appendix 2.
Application solution: a connectivity and data flow automation tool designed and developed in SaaS mode providing, in a non-exhaustive manner: *An interface for visualizing data flows, data, and systems; A monitoring interface via dashboards;
OBJECT OF THE CONTRACT
The purpose of the Agreement is to define the technical, legal and financial terms and conditions under which Niagara will perform the Services for the Customer as set forth in Section VIII of the Agreement and in Schedule 1.
CONTRACTUAL DOCUMENTS
The contractual documents constituting the Contract are the Contract Articles and the Appendices. The parties voluntarily waive the application of their respective general terms and 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 contract therefore constitutes a private contract within the meaning of Article 1110 of the Civil Code.
OBLIGATIONS OF THE PARTIES
1. General obligations of the Parties
Designate an appropriate representative with the authority to make or cause to be made the decisions necessary for the proper performance of the Services; Perform in good faith the obligations imposed on it by the Contract; Ensure the availability, cooperation and competence of its personnel assigned to the performance of the Services.
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; Comply strictly with any legal or regulatory obligation, in particular with respect to employment;Has an obligation to advise the Customer on any choice or request made by it of which it has direct or indirect knowledge and which could affect the objectives attached to the performance of the Services; must alert the Customer to any event of which it has direct or indirect knowledge, which may affect the Services or the commitments of the Parties, including if such event is attributable to the Customer;Undertakes to deliver the Services in accordance with the SLA in Appendix 2.3.
Obligations of the Customer
To provide Niagara with all the elements in its charge when Niagara requests them (users, structure of the plant and list of workstations, list of machines, standard parameters); To also ensure access to its premises, if necessary, to Niagara's personnel for the activities which must be carried out there and to provide the means necessary for the execution of these activities; To put Niagara's staff in contact with all the persons of its company concerned by the realization of the Services; To proceed within the agreed time or as soon as possible to the validations at its charge in the case where a validation is planned.
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 terminated by either party with a notice of three (3) months prior to the initial term or the renewal term by registered letter with acknowledgement of receipt or terminated by either party in accordance with the provisions of Article 18.
TERMS AND CONDITIONS OF PERFORMANCE
Customer and Niagara have agreed on a methodology for the deployment of the Application Solution. This methodology is set forth in Appendix 3.
MODIFICATION OF THE SERVICES OR THEIR SCOPE
The Customer reserves the right, at the beginning of the execution of the Services, to extend the Services to other sites or subsidiaries under the conditions provided in Appendix 1. However, any modification of the Services shall be subject to the written agreement of both parties.
SERVICES AND FEATURES
1. Description of features 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 :
2. Languages
Niagara will use its best efforts to make the Application Solution available in another language within fifteen days of Customer's written request.
3. Niagara Failure:
In the event of a major failure on the part of Niagara, of a halt in the development or maintenance of the Application Solution or of the cessation of its activity, the Customer may dispose of 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 Customer may not market the Application Solution to third parties, even free of charge. In the cases referred to in this paragraph, the Customer expressly undertakes to comply with all the provisions of Article XII "Intellectual Property".
4. Customer data (in operation) :
The Customer owns the data integrated into the Application Solution based on the Customer's data. It is understood that the Customer authorizes Niagara to use the data entered by the users of the Application Solution for the purpose of enabling its solution to operate under the conditions provided for in the Application Solution. Niagara agrees not to transmit, assign or permit access to Customer's data to any third party unless authorized in writing by Customer. The data must be transferable to a server so that Customer may not only archive it in its environment but also use it as it sees fit. Niagara undertakes to transmit this data to the customer upon written request of an authorized person of the company. With respect 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 available for transfer to Customer in a format that can be used by Customer within one (1) month of the end of the contract.
FINANCIAL CONDITIONS
1. Tariff
The services under this Agreement shall be performed by Niagara at the rate set forth in Schedule 1. This fee is firm and fixed for the agreed upon tasks and deliverables. By express waiver of 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 termination of the Contract or renegotiation of its terms and conditions, even in the event of a change in unforeseeable circumstances that would make performance of the Contract excessively onerous.Niagara's travel expenses may be reimbursed on the basis of actual expenses within the limit of the travel policy applicable to the Customer. The Customer shall validate that he/she is responsible for the costs upstream.
2. Billing
Billing will be done at the level of each legal entity of the Customer's group that uses the Application Solution. If a legal entity has several establishments, the billing 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 will be triggered on the day the Contract is signed. Payment will be made on the 30th of the month. Invoicing will be in Euros and payment will be in Euros. Payment will be made by bank transfer to the RIB/IBAN provided by Niagara. Any unjustified delay in payment will be subject to penalties in accordance with the provisions of Article L 441-6 of the Commercial Code.
STAFF
1. Niagara Staff Status
The Services will be performed by Niagara's personnel or employees who remain under Niagara's exclusive authority and responsibility. In case of intervention on the Customer's site, he will comply, for the good execution of the Services, with the internal rules of the Customer's site that the latter will have communicated to him beforehand. Niagara declares that he has fulfilled all his obligations with regard to articles L.8211-1 of the French Labour Code relating to concealed work. He also certifies on his honor that he has not been the subject, during the last five years, of a conviction registered in the bulletin n°2 of the criminal record for the offences referred to in articles L.8221-1, L.8221-3, L.8251-1, L.8231-1, L.8241-1 of the Labour Code. These provisions shall be applied and shall be binding on Niagara for the duration of the Contract.
2. Non-solicitation and non-poaching of stakeholders
Each Party undertakes not to poach, hire or cause to be employed, 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, except with the prior written consent of the other Party. This obligation is valid for the duration of the performance of the Services plus twelve (12) months after the end of the Contract.
LIABILITY / WARRANTY
Niagara guarantees to perform the Services in accordance with the SLA in Appendix 2. Niagara shall use its best endeavors to implement the commitments made, in particular with regard to the time required to address and resolve problems. Niagara alone determines the composition of its team and is responsible for its management. The agents, servants and/or collaborators employed by Niagara for the performance of this contract remain under its sole control and direction. Each of the Parties may be held liable under the conditions of common law only for direct and foreseeable damage suffered by the other Party, resulting from a breach of its contractual obligations as defined herein. The Parties hereby waive the right to claim compensation from the other Party for any indirect damages, including but not limited to loss of profit, loss of opportunity, commercial and financial loss, increase in general expenses or losses originating from or resulting from the performance of this Agreement. In addition, in the event of a breach of any of its obligations hereunder, each Party shall be fully liable for the consequences resulting from its own faults, errors or omissions and for any damages caused to third parties.
INSURANCE
Each of the Parties warrants to the other Party that it has 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 pecuniary consequences of the damages for which it would be liable, which will be attached in Appendix 5. Each of the Parties undertakes to maintain these insurance policies throughout the performance of the present contract.
INTELLECTUAL PROPERTY
1. Ownership of rights
This Agreement does not grant Customer any intellectual property rights whatsoever in the Software As A Service Solution developed by Niagara, which remains its full and complete property, which Customer hereby expressly acknowledges and accepts.
2. Customer's brand
The Customer owns its brand and does not grant Niagara any rights to use it under this Agreement. Customer authorizes Niagara to use the logo and its name as a trade reference. Any other use requires written permission.
CONFIDENTIALITY
Unless expressly provided otherwise, all information exchanged between the Parties, whether before or after the date of entry into force of the Contract, or brought to the attention of one of the Parties in the course of performance of the services, shall be or have been confidential and may only be used for the purposes of the Contract. Both on its own behalf and on behalf of its collaborators, the Party receiving information undertakes in this respect: Not to use the confidential information for any purpose other than this Contract; Not to disclose all or any part of such information to any third party without the prior written consent of the other Party; To disclose such information only to those members of its staff who will need to know such information in order to perform the services and to ensure that they agree to abide by the terms of this confidentiality clause; Not to copy or reproduce, in any manner whatsoever, such information other than as necessary for the performance of this Contract. This covenant shall remain in effect for a period of three (3) years after the expiration or termination of this Agreement.
MAJOR FORCE
Neither Party shall be liable to the other Party in the event that the performance of its obligations is delayed, restricted or rendered impossible due to the occurrence of an event of force majeure, which shall be understood to mean the occurrence of an event having the characteristics of unpredictability, irresistibility and exteriority 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 force majeure: viruses, attacks or any act leading to the paralysis of the Internet network or blocking the use of hardware and computer solutions. The Party that is the victim of a case of force majeure or of one of the above-mentioned events undertakes to notify the other Party without delay, as far as possible. The obligations of the Parties shall then be suspended for the duration of the event for a period not exceeding three (3) months. The Parties shall meet to determine together the most appropriate means of mitigating, if possible, the consequences of the event(s) constituting force majeure. In the event that the case of force majeure should extend beyond the aforementioned period, either Party may terminate this Contract, by operation of law, without prior notice and without any right to compensation of any kind whatsoever, by sending a registered letter with acknowledgement of receipt with immediate effect. This letter shall state the intention to apply this clause.
TRANSFER OF THE CONTRACT
The Contract may not be transferred in whole or in part by one Party without the prior written consent of the other Party.
OUTSOURCING
Niagara may subcontract a portion of the Services. In this case, Niagara will inform the Customer in writing, including by e-mail, of its intention to subcontract at least five (5) days prior to the proposed conclusion of the subcontract.
TERMINATION
Either party may terminate 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 shall remain without remedy for a period of one (1) month, and then notifying the latter of the termination.
CONSEQUENCES OF THE END OF THE CONTRACT
At the end of the Agreement, whether at its normal expiration, termination or cancellation, Niagara will recover any materials or documents belonging to Niagara that have been deposited at the Customer's site and will return to Niagara any materials or documents that have been made available by the Customer. The provisions of this Agreement that are intended to survive the termination of this Agreement shall continue in effect, including Sections 10, 12, 13, 18, 19, 20, and Customer shall retain ownership of any equipment provided by Niagara under this Agreement, but shall no longer have access to the Online Services and Benefits.
GENERAL CLAUSES
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 own responsibility. The Agreement does not constitute a partnership or an agency given to one of the Parties by the other Party.
2. Integral
The Agreement expresses the entirety of the obligations of the Parties. It shall prevail over any other document issued or signed by the Parties, including their general terms and conditions of sale or purchase, or over any previous agreement, written or verbal, relating to the same subject matter. Any amendment to the Agreement shall be made by an amendment signed by the authorized representatives of each of the Parties to be valid.
3. Non-competition
Customer expressly agrees not to develop and/or cause to be developed any product that competes with Niagara's Solutions or any product that has substantially similar functionality and/or purpose to Niagara's Solutions during the term of the Agreement and for a period of three (3) years after the end of the Agreement for any reason whatsoever.
4. Notification
Unless otherwise provided, any notice to either Party required under the Agreement shall be given by registered mail with return receipt requested to the address at the top of this Agreement, or to an address subsequently specified in writing by either Party to the other Party.
APPLICABLE LAW - DISPUTES
The law applicable to all disputes that may arise in connection with the Contract, and in particular its existence, validity, formation, interpretation, performance or termination, is French law. In the event of a dispute arising out of or in connection with the Contract, the Parties agree to seek an amicable solution before taking any legal action. Any dispute arising out of the pre-contractual relationship, or relating to the validity, performance, termination or interpretation of the Contract shall be subject, in the absence of an amicable agreement, to the exclusive jurisdiction of the Commercial Court of Paris, to which the Parties hereby expressly assign jurisdiction even in the event of multiple defendants, appeal for warranty, emergency or summary proceedings, or even in opposition to an order to pay.
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