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GENERAL TERMS

GENERAL TERMS OF USE FOR THE FINALCAD SOLUTION

ARTICLE 1. AGREEMENT

This Agreement (as defined hereunder) pertaining to the use of the “FINALCAD” solution is entered into between, on the one hand, the corporate person identified in the Membership Form in its capacity as an Eligible Affiliate under the Framework Agreement (the “Licensee”) and, on the other hand, FINALCAD (the “Licensor”) a French corporation identified in the Membership Form, hereinafter referred to individually as a “Party” or collectively as the “Parties”.

For the purposes of this License, the term “Agreement” designates the following documents, listed in decreasing order of legal value:

  1. the terms of the Framework Agreement applicable to the Licensee;
  2. the Membership Form, duly signed and returned by the Licensee,
  3. the Specific Terms of Use specified in Appendix 1 of the Membership Form;
  4. these General Terms of Use; and
  5. the appendices to these General Terms of Use.

In case of conflict between the provisions of one or more of the aforementioned documents, the document with the highest legal value shall prevail. In case of conflict between the provisions of different versions of the same document, the provisions of the most recent version shall prevail as being those of the version currently applicable. Any amendment to any of the documents will automatically become part of the Agreement in replacement of the amended part, with effect from the date on which said amendments are first served by the Licensor on the Licensee.

ARTICLE 2. DEFINITIONS

For the purposes of this Agreement, the terms defined hereby shall have the meaning set forth hereunder:

  • Improvements: any and all improvements, optimizations, ideas, concepts, techniques, inventions, developments, evolutions, fixes and/or modifications included in the Solution, whether or not protected by copyright or by any other Intellectual Property Rights, which are acquired or developed by the Licensor, including in collaboration with the Licensee (or any of its agents, directors, employees or representatives of any kind), for the duration of this Agreement.
  • Database(s): one or more structured and organized sets of data input by the Licensor and by the Licensor’s licensees, including the Licensee hereunder, with respect to which the Solution can be connected, funded, constituted and operated by the Licensor in its capacity as “Producer” within the meaning of Article 341-1 of the French Code of Intellectual Property or “maker” within the meaning of Article 7.1 of European Directive 96/9/EC.
  • Fix: any change, correction or addition made as part of a new Edition or new Version of the Solution, making the Solution compliant with the Documentation, or any procedure which, when complied with in the course of appropriate performance of the Solution, prevents adverse effects or non-compliance.
  • Intellectual Property Rights: rights, including but not limited to, all current or future rights pertaining to the business name, trademarks, patents, software (including their object and source code), trade names, domain names, know-how, designs, inventors’ rights and other rights of industrial and intellectual property rights (whether registered or not).
  • User Documentation: documentation made available to the Licensee by the Licensor, pertaining to and providing assistance for the use of the Solution, in the form of manuals and functionality descriptions provided in electronic format, and which the Licensor may amend.
  • Edition: a new Edition of a current Version of the Solution, such as, for instance, Edition 7.5 versus Edition 7.2.
  • Error: any repeatable failure to perform by the Solution as compared to the Documentation.
  • Update: process by which a new Version or new Edition of the Solution is made available.
  • Observatory: Database or information generated from a Database allowing the Licensor to develop statistics, dashboards, or information and evaluation points concerning the number, nature and actual or average reservation processing time pertaining to the work conducted by a professional or specific group of professionals, including all or part of the professionals involved in a Covered Construction Site (within the meaning of the Framework Agreement).
  • Solution: the construction management software solution and related services platform, referred to as “FINALCAD” (including Improvements as applicable), which remains the property of the Licensor and is made available to the Licensee in the form of a mobile app, and including all successive future versions in the form of executable codes.
  • Territory: designates the territory for which the License is granted, as defined in the Specific Terms of Use specified in Appendix 1 of the Membership Form.
  • Authorized User: employee, agent or any other person for whom the Licensee is responsible, under the terms of this Agreement, to use the Solution or to access a Database for the purposes of the Covered Construction Site (within the meaning of the Framework Agreement) of which it is in charge.
  • Version: an entirely new version of the Solution, such as, for instance, Version 7 versus Version 6.

ARTICLE 3. SCOPE OF THE LICENSE

The Licensor grants the Licensee a non-exclusive, non- transferable right to use the Solution in object code form for the purpose of deploying it to Authorized Users of the Licensee’s company for the conduct of its business and internal needs as regards the Covered Construction Site (within the meaning of the Framework Agreement) of which it is in charge.

The Licensor makes the Solution available to the Licensee in an electronic format.

Should a new Version or Edition of the Solution become available, the Licensee shall be allowed to use it only in replacement of previous Versions or Editions of the Solution made available by the Licensor under this Agreement.

The Licensee acknowledges that an Update shall not be construed as granting a new license to use the Solution, unless otherwise specified by the Licensor when the Update is provided.

ARTICLE 4. INTELLECTUAL PROPERTY

The Licensee hereby guarantees that it holds all rights to use any data, files and information that it itself inputs into the Solution or Databases, including digital blueprints for the sites it wishes to use in conjunction with the Solution or which, depending on the service offer purchased, it transfers to the Licensor for it to incorporate into the Solution under this Agreement.

The Solution, use rights and any other Intellectual Property Rights related to or associated with the Solution, Fixes or Databases, training materials pertaining to it, as well as any interfaces (APIs), formats, methods and know-how used by the Licensor for the purpose of producing plan meshes for possible use with the Solution shall remain the property of the Licensor or its licensors.

Nothing in this Agreement shall be construed as a transfer of ownership or of any intellectual property rights or know- how by the Licensor or its licensors, or as transferring any ownership right whatsoever of the Licensor’s Solution, Databases or training materials, or any other intellectual property rights or know-how held by the Licensor or its licensors.

Any Fixes suggested or comments made by the Licensee to the Licensor pertaining to improvements of any existing or desirable feature in the Solution or Databases remain the exclusive property of the Licensor, since integration in the Solution, Databases or in the Licensor’s methods and know- how is performed by the Licensor. The Licensor remains free to choose, in its own discretion, whether or not to implement any features and Fixes suggested by the Licensee.

Except as expressly provided in this Agreement, the Licensee is not granted any rights to the Licensor’s trademarks, service marks, designs or models, data models and formats, Databases interfacing with the Solution, all of which shall all remain the exclusive property of the Licensor.

The Licensee shall not file or attempt to file an IPR petition nor use or cause to be used any software, trade name, trademark, service mark, domain name, design or model which, in whole or part, is similar to or likely to be confused with the Licensor, its distinguishing marks or its Solution, Databases and interfaces with either of them.

The Licensee may not sublicense, publish, display, disclose, rent, modify, loan, distribute or create derivative works based on the Solution, Database or Fix, or any data or file interface or integration method associated with them, in whole or in part. Except as expressly in this Agreement, the Licensee shall not, and shall not allow any third party to:

  • copy, imitate or produce the Solution in whole or in part,
  • duplicate or extract in a qualitatively or quantitatively substantial manner, or without the Licensor’s prior written authorization, all or part of one of the Databases,
  • translate, analyse, modify, adapt, improve, expand, decompile, disassemble or otherwise reverse engineer the Solution or attempt to derive its source code,
  • use the Solution to provide it, in whole or in part, in the form of Software as a Service (SaaS) or any managed outsourced service hosting or service bureau or any other situation by which the Solution or a Database would be used outside the Territory or to process third-party data.

The Licensee shall promptly inform the Licensor if it becomes aware of any current, foreseeable or suspected counterfeiting of the Solution, a Database or any other intellectual property rights of the Licensor, as well as of any claim or allegation that the Solution or a Database infringes the rights of third parties.

ARTICLE 5. CONFORMITY AND LIABILITY

The Licensee represents and warrants to the Licensor that all operations performed by the Licensee or an Authorized User, or through the Access Codes specified in Article 13.2 hereunder, directly or indirectly through the Solution or Databases accessible to the Licensee shall comply with all laws and regulations applicable to the Licensee’s business and to this Agreement.

The Licensee shall not use the Solution or Databases with plan meshes that have not been approved by the Licensor prior to integration in the Solution or Databases. The Licensee shall accept any refusal by the Licensor to approve a plan mesh created by or on behalf of the Licensee.

In any event, the Licensee shall be solely liable to the Licensor and to any third party for the content, veracity, relevance and factual, technical or legal compliance of data, including digital blueprints it input or cause to be input by the Licensor on its behalf into the Solution or a Database, as well as for all legal circumstances, rulings or actions (hereinafter the “Consequences”) that may result directly or indirectly from such data.

The Licensee shall defend and hold the Licensor harmless from and against any and all claims or actions from third parties, and shall indemnify the Licensor from and against any and all consequences (damages, fees including attorneys’ fees, etc.) and any and all court decision resulting from said data, including digital blueprints or their Consequences, including vis-à-vis third parties, court decision in its favour against the Licensor through an enforceable court decision.

The Licensor shall indemnify and hold the Licensee harmless against all direct damages and reasonable expenses incurred, documented by receipts, which the Licensee is ordered to pay by any final court decision purely based on infringement by the Solution of a third party’s intellectual property rights.

The Licensor shall not be liable to the Licensee for any infringement of a third party’s intellectual property rights which:

  • may occur after any unauthorized use, duplication or distribution of the Solution or a Database by the Licensee or its agents, including the Authorized Users;
  • may occur after modification or alteration of the Solution or a Database by any other person than the Licensor;
  • may occur after use of the Solution or a Database in combination with any software or equipment without the Licensor’s prior written permission; or,
  • could have been avoided by using the latest Edition or Version available at the time, or if the Licensee had followed the Licensor’s instructions.
Should the Solution be recognised as infringing third-party intellectual property rights by a final court decision, and that infringement would prevent the use of the Solution by the Licensee, the Licensor shall make its best efforts, at its own expense, to either:
  • obtain the right for the Licensee to continue to use the Solution under the terms of this Agreement; or
  • make any necessary modifications or adjustments to the Solution to put an end to the infringement of third-party rights; or - replace the Solution with a substantially similar substitute product.

Failing this, the Licensee retains the option to terminate this Agreement immediately, without such termination giving rise to any right to compensation.

The Licensee shall indemnify and hold the Licensor harmless from and against any damages, liability, losses, costs and expenses (including, but not limited to, reasonable attorneys' fees) incurred in connection with any claim, suit or proceeding brought against the Licensor by a third party on the grounds that the Solution, a Database or any modification or alteration of the Solution performed by the Licensee infringes the intellectual property rights of third parties.

Any duty to indemnify arising from this Agreement is subject to the following conditions:

  • (a) the Party entitled to compensation shall promptly notify in writing the Indemnifying Party about the proceedings or claim to which it is subject;
  • (b) the Party entitled to compensation shall allow the Indemnifying Party to retain the power to direct and control the defence and resolution of said proceedings or claims;
  • (c) the Party entitled to compensation shall not interfere with the defence in the proceedings or claim; and,
  • (d) the Party entitled to compensation shall provide the Indemnifying Party with any and all assistance, documents, authority and information reasonably required in connection with the proceedings or claims and the defence thereof.

More generally, the Licensor shall not be liable for consequential damages, including but not limited to loss of profits, loss of production or anticipated profits, business interruption, loss or corruption of data or business information, consequences or any other financial loss suffered by the Licensee in connection with performance of this Agreement.

It is the Licensee’s responsibility to ensure that any data input into a Database in connection with the use of the Solution is regularly and adequately backed up on its own initiative.

The Licensor’s liability under this Agreement, whatever the cause, shall not exceed the total compensation received by it under the License for the Covered Construction Sites which were under the Licensee’s responsibility for a period of six (6) months preceding the event giving rise to the said liability.

The provisions of this article set forth the Licensor’s entire liability and the only remedies available to the Licensee under this Agreement.

ARTICLE 6. WARRANTY

The Licensee acknowledges that the Solution and Databases it accesses under this Agreement are provided “as-is” and may contain Errors. No warranty is granted to the Licensee that the Solution or Databases will be made accessible to the Licensee again after termination of the Agreement for any reason whatsoever.

The Licensor warrants the Licensee that it will make its best efforts to ensure that the Solution operates substantially as stated in the Documentation on the day the Solution was made available to the Licensee.

In addition, it is the Licensee’s responsibility to inform the Licensor of any malfunction identified by it, or to suggest any changes to the Solution or a Database which could result in a Fix or correct any Error, in keeping with the Licensor’s procedures.

ARTICLE 7. FINANCIAL TERMS

7.1 License

The Licensee obtains a license from the Licensor to use the Application described in this Agreement in consideration of payment by the Beneficiary of the Annual Fee (these terms have the meanings ascribed to them in the Framework Agreement).

The Licensee acknowledges that this Agreement may be validly terminated in the event of early termination of the Framework Agreement resulting, for instance, from failure by the Beneficiary (within the meaning of the Framework Agreement) to comply with its obligations to pay the amounts due to the Licensor under the Framework Agreement, and which has not been remedied within the time set by the Framework Agreement.

7.2 Optional Support Services

If the Licensee has purchased Optional Support Services, it agrees to pay the price corresponding to said Support Services as described in the Quotation accepted by the Licensee and having resulted in the issuance of a Purchase Order (these terms have the meaning ascribed to them in the Framework Agreement), within the time limits and in keeping with the modalities set forth in the Framework Agreement. If payment is overdue for more than thirty (30) days, the Licensor reserves the right, in its sole discretion, to suspend access to the Solution, a Database or a service provided under this Agreement, without the Licensee being entitled to make any claim for compensation. Failure by the Licensee to make payments by the due date, if not remedied within thirty (30) days of receiving written notice from the Licensor, constitutes a breach of the Licensee’s essential obligations under this Agreement and may result in application of the provisions of ARTICLE 11. “Termination” hereunder.

ARTICLE 8. ADDITIONAL SERVICES

The Licensor may provide the Licensee with information derived from the Observatory upon request, on a non- exclusive, non-transferable basis, as part of Optional Support Services agreed between the Parties.

ARTICLE 9. TERM

This Agreement shall enter into force on the date the Membership Form is signed by the Licensee, for the duration of the License Period (as specified in the Framework Agreement).

ARTICLE 10. MANAGEMENT OF THE AGREEMENT

The Licensee shall designate, in the Membership Form, an individual who is to be in charge of communicating with the Licensor and forwarding a list of the Licensee’s Authorized Users and the Licensee’s clearance for the said users to access the Solution and/or Databases (hereinafter the “POC” (Point of Contact).

The Licensee shall be fully responsible for the actions of the Agreement signatory, POC and Authorized Users in matters pertaining to the Licensor and any third parties, including in representing the Licensee in the course of the drafting, performance, non-performance or amendment of the Agreement, notified by the Licensor to the Licensee or accepted by the signatory to the Agreement on behalf of the Licensee, by the POC or by an Authorized User who, pursuant to this Agreement, shall be deemed to be representing and be acting in the name and on behalf of the Licensee.

In the event of an amendment to a contractual document made by the Licensor, the amendment shall automatically become a part of this Agreement, with full effect due to any of the events mentioned in the preceding paragraph.

ARTICLE 11. TERMINATION

Without prejudice to the Licensee’s right to terminate the Agreement under the provisions of Article 5 hereof, each Party has the right to terminate this Agreement automatically upon written notice to the other Party of a breach of any of its obligations under this Agreement which it has failed to correct within thirty (30) days of being called on to do so in writing. Upon expiration or termination of this Agreement for any reason whatsoever, (a) all rights and licenses granted to the Licensee shall be terminated; and (b) the Licensee shall return to the Licensor or destroy all copies of the Solution in its possession, as well as all of the Licensor’s Confidential Information.

If the Licensor so requests, a duly authorized representative of the Licensee shall certify in writing that all the materials, services, the Solution and Databases covered by this Agreement have effectively been returned to the Licensor, or been destroyed, or otherwise made inaccessible to the Licensee.

Expiration or termination for any reason whatsoever of this Agreement shall not affect the rights and remedies available to or the liability of each Party, and which are intended to survive the expiration or termination of this Agreement for any reason whatsoever.

ARTICLE 12. FORCE MAJEURE

Neither Party shall be considered in breach of this Agreement should its performance be delayed or prevented by an event of force majeure as defined by the French courts. Events of force majeure under this Agreement may include an act of war, pandemic, partial or general strike, fire, flood, earthquake, volcanic eruption, inclement weather, and partial or total inability to use electronic or electrical communications networks.

ARTICLE 13. GENERAL TERMS AND CONDITIONS

13.1. Confidentiality

The Parties shall not disclose to any third party any Confidential Information obtained through or in the course of negotiations prior to the execution of this Agreement, or in the performance thereof, unless the Parties have agreed to depart from these provisions.

The term Confidential Information means all elements and/or processes and/or data of a commercial, technical, financial or economic nature exchanged between the parties by any means whatsoever, including printed documents, research, documentation, accounting documents, price lists, software and more generally any means and media used for the exchange of confidential information between the Parties, whether or not explicitly identified as such.

The Parties also agree that any Confidential Information regarding the other party:

  • shall be kept strictly confidential and be subject to the same standard of care and protection that it observes for its own confidential information of a similar nature;
  • shall be disclosed exclusively to employees who need it and may be used by them exclusively for the purposes of this Agreement;
  • shall not be used, wholly or in part, for any other purposes than those defined herein, without the prior written consent of the other Party;
  • shall not be disclosed or likely to be disclosed, either directly or indirectly, to any third party, or any other person employed by a company controlled by one of the Parties to this Agreement;
  • shall not be copied, reproduced or duplicated, wholly or in part, unless such copies, reproductions or duplications have been specifically authorized by the other Party in writing.

The Parties mutually agree to ensure that their employees and/or any potential representatives, including Authorized Users, comply with this confidentiality agreement.

Confidential Information does not include information which:

  • had fallen into the public domain at the time of disclosure or thereafter through no action or inaction of the receiving Party in violation of its obligations,
  • was already in the possession of the receiving Party or otherwise known to it prior to such information being received from the other Party,
  • is required to be disclosed by the receiving party in judicial or administrative proceedings, provided that the receiving Party has promptly informed the other Party of the said request so that it may assert its rights.

The confidentiality obligations under this Article survive the termination of this Agreement for whatever reason for a period of five (5) years.

13.2. Security

Access to the Solution or Databases by Authorized Users may be obtained remotely through the Solution and the Internet; this may require the use of logins and passwords, or any other authentication process specified by the Licensor (hereinafter the “Access Codes”), which shall be communicated by the Licensor to the Licensee.

The Licensee is solely responsible for the preservation, security and integrity of the Access Codes, and undertakes to promptly notify the Licensor by any means if said Access Codes are lost or misused, and provided the said loss or misuse is immediately confirmed to the Licensor by registered mail with return receipt. Until receipt by the Licensor of such confirmation, any action performed by an Authorized User will irrefutably be deemed to have been performed by the Licensee, and shall entail the exclusive liability of the Licensee towards the Licensor or any third parties.

The Licensee acknowledges that, notwithstanding the high level of security measures implemented by the Licensor:

  • data transmitted on the Internet transit through independent electronic communication networks with different features and capacities, which may experience periods of overload;
  • the Internet is an open network: information transmitted thereby is therefore not protected against risks of diversion, fraudulent, malicious or unauthorised intrusion in the Licensee's information system, hacking, unauthorised extraction or alteration of data, system software and files, or contamination by viruses, and;
  • it is the Licensee’s responsibility to take all appropriate measures, including raising awareness of and controlling the activities of Authorized Users in order to protect its information systems against contamination by viruses and unauthorised intrusion attempts.

The Licensor reserves the right to suspend access to the Solution or to a Database if it reasonably suspects fraudulent use or attempted fraudulent use of the Access Codes.

13.3. Relationship between the Parties

The Licensee and Licensor act as independent contractors, on their own behalf and for their own account. Nothing in this Agreement shall be construed as creating a partnership, joint venture, or an employment, commercial or agency relationship.

Neither Party shall have authority to act on behalf of the other Party in any matter whatsoever, or to bind the other party in any way whatsoever, without the express prior written consent of the other Party.

The Licensee acknowledges that it does not receive any exclusive right or specific interest through the performance of this Agreement. Any rights or licenses not expressly granted to the Licensee by this Agreement are reserved by the Licensor, including, but not limited to, the right to grant a license for the Solution or Databases on the Territory, either directly or indirectly.

13.4. Intuitu Personae

This Agreement was entered into intuitu personae, in consideration of the Licensee’s personality and reputation. The Agreement may therefore not be assigned, in whole or in part, whether subject to payment or free of charge, without the Licensor’s prior written consent.

13.5. Notices

All notices addressed to one Party by the other shall be sent to the address specified in this Agreement.

Either Party may change the notice address or addressee by giving notice thereof to the other Party under this Article, by registered mail with return receipt.

13.6. Commercial referral

The provisions of Article [12.2] of the Framework Agreement shall apply to the Licensee, under the same terms as provided for the Beneficiary (within the meaning of the Framework Agreement).

13.7. Entire Agreement

This Agreement constitutes the entire Agreement between the Parties, unless otherwise explicitly agreed between the Parties. This Agreement may be amended only by an amendment signed by the Parties.

13.8. Mutual non-solicitation of employees

Neither Party shall attempt to directly or indirectly solicit employees of the other Party who are or were involved in performance of this Agreement.

This obligation applies for the term of this Agreement, and for a period of twenty-four months following the termination of contractual relations between the Parties for any reason.

Unless otherwise agreed between the Parties, the breaching Party agrees to indemnify the other Party, without prejudice to any other rights and remedies available to it, with immediate payment of a sum equivalent to the amount of twelve (12) months of the gross salary received by each person it induced to leave the company.

13.9. Severability

The invalidity, voiding or non-enforceability of all or part of any provision of this Agreement shall not affect the enforceability of the other provisions of this Agreement, which shall be construed as if the void and unenforceable provision had been excluded therefrom.

13.10. No Waiver

The failure by a Party to claim a breach by the other party of any obligations under this Agreement shall not be construed as a waiver of any subsequent breach of the obligation concerned.

13.11. Proof

The Parties hereby agree that all data, information, files or other digital material exchanged between the Parties will constitute admissible, valid and binding proof carrying the same evidential value as a signed written document.

The Parties shall not contest the admissibility, validity, enforceability or evidential value of the aforementioned electronic data elements on the grounds that they are electronic in nature. Unless proven otherwise, these elements shall be valid and binding on the Parties in the same way, under the same terms and with the same evidential value as any document drawn up, signed or held in writing. The provisions of this paragraph shall apply specifically to notice given by the Licensor to the Licensee of any amendments to this Agreement or acceptance by the signatory to the Agreement on behalf of the Licensee, by the POC or by an Authorized User, pursuant to the provisions of Article 10 “Agreement Management” of these Terms of Use.

The provisions of this Article shall not apply to notice between the Parties which must be served by means of registered mail with return receipt.

ARTICLE 14. GOVERNING LAW AND JURISDICTION

This Agreement shall be governed by the laws of France.

The Parties shall attempt to amicably settle any dispute arising in connection with the interpretation or performance of this Agreement.

All disputes arising from the existence, validity or performance of this Agreement shall be submitted to the jurisdiction of the Commercial Court of Paris, notwithstanding plurality of defendants.