1.1.1. These general terms and conditions set forth the terms and conditions under which Prim’X Technologies agrees to grant the Customer licences to use the software it publishes and to provide maintenance and support services, as presented in its sales documents and in the quotation issued. In the absence of any written agreement to the contrary, these general terms and conditions automatically apply to all commercial relations between Prim’X Technologies (hereinafter “Prim’X Technologies”) and the Customer and in particular to the granting of any rights concerning the software published by Prim’X Technologies (hereinafter the “Software”).
1.2. Any order placed with Prim’X Technologies implies the Customer’s full and unreserved acceptance of these general terms and conditions, to the exclusion of any other document. In particular, the Customer declares expressly to waive its own general terms and conditions.
The contractual documents comprise the following:
- The Agreement as defined in clause 2,
- These general terms and conditions,
- The licence shown in Appendix 1.
Any provision to the contrary shall therefore be unenforceable against Prim’X Technologies, unless expressly accepted by the latter or indicated in the Agreement as stipulated in clause 2.
1.3. The Customer agrees that Prim’X Technologies may subsequently reasonably modify these general terms and conditions. The relationship between the Customer and Prim’X Technologies shall at all times be governed by the most recent terms and conditions in effect on the date the order is placed. All modifications shall be notified to the Customer.
Likewise, Prim’X Technologies reserves the right, at any time and reasonably, to make any changes or deletions it may deem useful to the Software and Services as defined below.
2. Ordering – Formation of the Agreement
2.1. The quotation drawn up by Prim’X Technologies constitutes a proposal to enter into an agreement. Unless indicated to the contrary in the quotation, the quotation is valid for 30 calendar days as from the date of its creation.
The agreement is only formed by the Customer’s unreserved acceptance of the terms and conditions indicated in the quotation (hereinafter the “Agreement”).
In practice, the Customer expresses its consent by returning the duly signed quotation or by placing an order expressly referring to the quotation or including the terms of the quotation.
2.2. Depending on the chosen Software, the Customer may have the choice of opting (i) either for an Agreement enabling it to benefit from perpetual user licences for the Software and associated support and maintenance services, (ii) or for an Agreement enabling it to subscribe to a user licence for the Software including support and associated maintenance services for a fixed duration of at least one (1) year. The Customer is informed that some Software may only be acquired under subscription licences and other Software under perpetual licences. According to the nature of the Software acquired, moreover, the licence may be granted either to a workstation for an unlimited number of users (hereinafter the “Workstation”) or to a user. User (hereinafter the “User”) means any user of the Software covered by the Agreement, whether internal or external to the Customer. With regard to the Orizon Software, this does not include people accessing the Software solely via the Orizon Guest application.
2.3. The Customer may under no circumstances unilaterally cancel or modify the Agreement. In any event, any order duly placed must be paid for by the agreed due date.
2.4. The benefit of the Agreement is personal to the Customer and may not be assigned in any manner whatsoever, directly or indirectly, in whole or in part, whether in return for payment or free of charge, (and in particular in the form of a transfer, contribution to a company or, where applicable, a transfer of securities or a change of control of the company operated by the Customer) without the prior written agreement of Prim’X Technologies. In particular, the Agreement may not be assigned to the member entities of the group to which it belongs without the prior written agreement of Prim’X Technologies.
2.5. When the Customer centralises the ordering, invoicing and payment of the Software on behalf of the members entities of its group, Prim’X Technologies grants the Customer and the said entities the possibility of using the Software in accordance with the terms of the Software user licence as appended hereto, with the Customer guaranteeing the compliance of these entities with said licence. The Customer acknowledges and accepts that if any of the entities in the group loses its status as a member of the Customer’s group, for whatever reason, the said entity will lose its right to use the Software.
When the Customer negotiates with Prim’X Technologies the financial conditions of the Software and refers them to the entities of the group to which it belongs, which then order them and pay them directly to Prim’X Technologies, the Customer declares that it is acting both on its own behalf and on behalf of the said entities and is responsible for the ratification of the Agreement in all of its provisions without any reservations by the said entities. In this case, the Customer and the entities acknowledge and accept that if any of the entities in the group loses its status as a member of the Customer’s group, for whatever reason, the said entity will lose its right to benefit from the financial conditions granted to the group to which it belonged, without losing its status as Customer.
3. Provision of the Software
3.1. Delivery and installation of the Software
Delivery of the Software consists in its being made available to the Customer for download from the Internet and by the sending to the Customer of an installation key containing the codes enabling the Customer to install the Software.
The Customer is solely responsible for installing the Software.
3.2. Trial licence
Prior to purchasing a licence for the Software, Prim’X Technologies may provide the Customer, free of charge, with one or more so-called “trial” licence(s). These trial licences may only be used on a limited number of Workstations, only within the Customer’s entity to which they were delivered and for the sole purpose of conducting usability tests, to the exclusion of all other uses. As an exception to the provisions set out in clause 9, trial licences are made available to the Customer for a maximum of three (3) months, which may be renewed at the Customer’s request. Trial licences installed on Workstations must be uninstalled at the end of this period. Trial versions must never be transmitted to third parties without the prior, written authorisation of Prim’X Technologies. All Users of trial licences must accept the user licence appended hereto.
The Customer is expressly informed that while trial licences do encrypt data, they do not offer the same level of security as licences sold by Prim’X Technologies. The Customer is therefore responsible for taking the necessary precautions to ensure the security of data collected by the Software provided to it under a trial licence.
Prim’X Technologies grants the Customer the right to use the Software in accordance with the user licence appended hereto.
When the Software is installed on a computer, the licence will also be displayed on its screen, so that in the case of a Workstation subscription it can be accepted. In the case of a User subscription, each User must accept the licence.
The Customer guarantees that Workstations and Users of the Software will comply with the provisions contained therein.
3.4. The data collected by some Software are encrypted and returned decrypted to the Customer or its partner, in accordance with the provisions set forth below on the website for which the said Software is installed, where such data can also be viewed and downloaded. The data encrypted and returned decrypted as part of this Software belong to the Customer, which takes full responsibility for such data and in particular for their content.
3.5. Some Software enable the Customer to authorise a certain number of Users to access the said Software. The Customer itself attributes User access codes via its login page to the Software in question. Users may be (i) employees or agents of the Customer or (ii) employees or agents of the Customer’s partners who need to access certain documents for which the Customer uses the Software in question. However, the Customer acknowledges and accepts that it may not allocate User access or grant sub-licences of the Software to member entities of the group to which it belongs without the prior written agreement of Prim’X Technologies. Each User accesses the Software using their User access code via a login page. Once attributed by the Customer, User access codes are personal and may not be disclosed to third parties or assigned in any manner whatsoever by Users, the Customer or the Customer’s partner with access to the Software, which the Customer hereby undertakes to guarantee. The Customer must therefore subscribe to as many User access codes as there are natural persons liable to access the Software. The question of subscription licences for any new Software is addressed in clause 2.1.
The Customer is informed that it may not reduce the number of User access codes during performance of the Agreement. The number of User access codes may only be reduced at the end of the term of the Agreement, pursuant to the provisions contained in clause 9.1.
The Customer is responsible for ensuring that all persons it authorises to use the User access codes comply with the provisions stipulated herein, whether they be employees of the Customer or of the Customer’s partner(s).
The Customer may, where necessary, obtain various services from Prim’X Technologies, particularly support, maintenance and training services as set out in the Agreement (hereinafter the ‘Services’).
Where the Customer acquires a perpetual licence to use the Software, it must order the associated support and maintenance Services from Prim’X Technologies, the terms and conditions of which are set out in the Agreement. Where the Customer acquires a subscription licence to use the Software, the support and maintenance Services are included in the price paid, pursuant to clause 8.
The duration of the support and maintenance Services provided by Prim’X Technologies is indicated in clause 9.1.2 below. The support and maintenance Services (hereinafter “Maintenance”) include:
- Technical support and corrective maintenance of the Software (hereinafter “Support”),
- Upgrade maintenance of the Software.
This Support service is accessible in French or English by e-mail, 5 days per week, from Monday to Friday from 9 a.m. to 6 p.m. (Central European Time), excluding public holidays. This service is not accessible directly by Workstations or Users but by the Customer’s administration team (a reduced number of persons, hereinafter the “System Administrator”).
The Customer will receive an access code for the maintenance site.
The Customer undertakes to notify Prim’X Technologies by e-mail (firstname.lastname@example.org) of operating defects or other problems encountered when using the Software provided.
Prim’X Technologies processes the System Administrator’s request for support by issuing an incident ticket.
Prim’X Technologies shall diagnose the Software malfunction as quickly as possible.
As part of the Support, Prim’X Technologies undertakes the following:
- to make every effort to correct any errors in the Software, i.e. to correct the defects causing the malfunction or nonconformity of the Software compared to the Software description and/or specifications. If it cannot correct the Software immediately, Prim’X Technologies shall actively and promptly seek and implement a workaround, with the Customer’s authorisation;
- to inform the Customer of any problem identified in a Software and make every effort to correct it;
- to respond in a timely manner to any questions from the System Administrator (who will, if necessary, have taken the training pursuant to clause 4.2) regarding the Software and its technical documentation.
In the event of excessive use of the Support services, i.e. if the statistics concerning the Customer’s use of the Support service are significantly higher than the average observed with other customers for the same type of service, Prim’X Technologies will offer the Customer a quotation, either to provide appropriate training for the Customer’s personnel in how to make better use of the acquired Software, or for continued use of the Support at an additional cost. If the Customer refuses, Prim’X Technologies will limit its intervention to the average observed with other customers for the Support.
4.1.2. Upgrade maintenance
Prim’X Technologies provides the Customer, as and when they become available, with upgraded versions of the Software including improvements to existing functions, arrangements, harmonisations, adaptations and reactualisations, as well as new versions (software publishing) and updates of the Software. Upgrades and updates of the Software plus their associated documentation will be downloadable from the maintenance site.
At the Customer’s request, Prim’X Technologies provides basic training for the Customer’s designated System Administrator(s) on how to use the Software, for the training modules selected by the Customer and pursuant to the financial terms and conditions stipulated in the Agreement.
At the Customer’s express request, Prim’X Technologies may provide the System Administrator with its technical expertise in the form of tailored training, pursuant to pricing terms and conditions negotiated between the parties.
The Customer acknowledges that under no circumstances during such training will Prim’X Technologies validate the configuration of the Customer’s system and/or analyse the appropriateness of the Agreement given the Customer’s needs.
4.3. Other Services
Any Service other than those provided for herein (specific developments, upgrade maintenance at the Customer’s request, etc.) will give rise to a specific quotation. If the Customer requests additional Services without requesting an additional quotation, the Services shall be provided at Prim’X Technologies’ current rate on the date of the Customer’s request.
The timetable for access to the Software is the one indicated in the Agreement. It commences upon the signing of the Agreement and, if applicable, payment of the deposit. The timetable for access to the Software is indicative. Accordingly, any failure by Prim’X Technologies to provide access on the dates indicated therein shall not give rise to any modification of the price and/or terms and conditions regarding payment for access to the Software. The Customer may never, furthermore, under any circumstances whatsoever, hold Prim’X Technologies liable if the delay is caused by the Customer’s negligence in providing Prim’X Technologies with the necessary elements to enable the latter to perform its work. The absence of any observations formulated by the Customer within three working days after the Software is made available shall constitute acceptance without reservation.
6.1. Subject to payment in full of the agreed price as stipulated in the Agreement, Prim’X Technologies grants the Customer the non-exclusive and non-assignable right to use and make back-up copies of the Software, for the term stipulated in the Agreement, both for France and overseas, in any form not foreseeable and not foreseen on the date of the Agreement, under the terms and conditions set forth in the licence appended hereto.
The trial licences referred to in clause 3.2 may only be used for the sole purpose of conducting usability tests, to the exclusion of any other use.
No rights other than those referred to are granted to the Customer.
6.2. With specific regard to subscription licences, the right of use hereby granted consists in the implementation and use of the said Software by the Customer, for its own use or that of its partners as defined in accordance with the provisions of clause 3.4. The right to use the Software excludes the granting of any other rights and under no circumstances confers the right to carry out any action not expressly authorised, in particular the right to make any copy, translation, adaptation, arrangement or any other modification of the software necessary for its implementation. The Customer shall, moreover, refrain from using the Software for fraudulent ends, attempting to log in to an account other than its own or performing analysis of the system akin to reverse engineering; the Customer shall thus refrain from carrying out or arranging for a third party to carry out any transcription of the software necessary for its implementation in any computer language whatsoever. Any use exceeding that defined herein shall expose the Customer to legal action for copyright infringement.
The Customer is prohibited from the following:
– using the specifications pertaining to the software necessary for its implementation to create or enable the creation of a program for the same purpose,
– disclosing the content of the software necessary for its implementation without Prim’X Technologies’ prior, written consent,
– assigning, leasing, subleasing or transferring its user licence to a third party under terms and conditions excluding the possibility of providing access thereto pursuant to clause 3.4 above,
– not complying with the functionalities of the software necessary for its implementation,
– merging, even partially, the software necessary for its implementation with other programs.
7. Obligations of the Customer
The Customer is solely responsible for defining its needs with respect hereto and in particular the type of Software it wishes to acquire and the number of Workstations it wishes to equip. It states that it has read the Software characteristics and the required configuration.
The Customer undertakes the following:
- to use the Software in compliance with the terms and conditions stipulated in the Agreement and, in particular, the terms and conditions of the licence appended hereto,
- to provide any information in its possession to facilitate the search for the causes of a Software malfunction following a request for corrective maintenance,
- to ensure the presence of one its representatives during work performed by Prim’X Technologies, even if work will only be performed on site by a Prim’X Technologies representative in exceptional circumstances,
- to allow Prim’X Technologies free access to its premises and IT systems, under the supervision of an individual authorised by the Customer, at the dates and times scheduled by mutual agreement between the parties for work to be performed, so that the Prim’X Technologies team can perform Maintenance on the Software, it being specified that in the event of refusal by the Customer, Prim’X Technologies cannot be held responsible for any poor quality of service or malfunction,
- To appoint a System Administrator, who shall be the sole point of contact for the Prim’X Technologies teams.
The Customer is, moreover, solely responsible for backing up the data encrypted by the Software and shall, in this respect, make regular copies of such data.
Prim’X Technologies may, with no limit on frequency, carry out (or have carried out by an independent service provider of its choice) an audit on the Customer’s premises and computer systems in order to check compliance with the Agreement and the conditions of the user license (in particular to check the actual number of Users of the Software and compliance with Prim’X Technologies’ intellectual property rights). Prim’X Technologies undertakes to inform the Customer at least five (5) working days before the planned date of intervention. In order to carry out this audit, the Customer will allow Prim’X Technologies access to its premises and IT systems without delay. The Customer undertakes to:
- cooperate in good faith ;
- provide access to all documents useful for the audit operations;
- make available to Prim’X Technologies all the material resources enabling the latter to carry out the audit operations and in particular to give it access to the information systems where and on which the Software is used.
Prim’X Technologies may use any technology of its choice to carry out the said operations and in particular will be authorised to install on the Customer’s computer systems any script enabling it to find out the conditions of use of the Software by the Users. Prim’X Technologies undertakes to respect and to ensure that any third party working on its behalf respects the strict confidentiality of the information collected in the context of the audits. The Customer may not invoke any secrecy or confidentiality obligation to oppose all or part of these operations. The costs of these audit operations will be borne by Prim’X Technologies unless they reveal a breach of the Customer’s obligations, in which case the costs of these operations will be re-invoiced in full.
Similarly, the Customer undertakes to send, once a year, within thirty (30) days of Prim’X Technologies’ request, a written statement specifying the number of Software used, the number of Workstations equipped, the number of Users, the name of the structure concerned as well as the name and contact details of the person in charge of the licenses in the structure concerned when the Customer centralises the ordering, invoicing and payment of the Software on behalf of the member entities of its group.
8. Financial Terms and Conditions
The Customer shall pay Prim’X Technologies the fees and other sums indicated in the Agreement.
Prices are composed as follows:
- with regard to perpetual licences, a total, fixed price plus a fixed annual Maintenance fee, the amount of which is stipulated in the Agreement,
- with regard to subscription licences, a periodic fee for the Software that includes the associated Maintenance.
Prices may be determined (i) per Workstation or (ii) according to the number of Users, as the case may be.
The price of training provided to the Customer consists in a total, fixed price, unless stipulated to the contrary in the Agreement.
Prices are stated in euros, excluding VAT and any customs duties applicable.
Prim’X Technologies reserves the right to modify its pricing at any time, subject to informing the Customer thereof prior to the latter placing its order. The new prices will apply to orders received after such information has been sent.
The price of the annual sum owed by the Customer according to the option selected (Maintenance in the case of a perpetual licence or fee in the case of a subscription licence) will be fixed for the first year of subscription of said option and may then be revised each year.
Expenses (travel, accommodation, meals, etc.) incurred by Prim’X Technologies in order to provide the Services shall always be payable in addition to the agreed price, unless stipulated to the contrary in the Agreement. Expenses must be paid by the Customer immediately at Prim’X Technologies’ request.
For the first year, perpetual Software licences and the first Maintenance fee included in the Agreement shall be payable in advance upon the signing of the Agreement, in one instalment by the Customer. Subscription licences are also paid in advance upon the signing of the Agreement, in one instalment by the Customer. Training services will be invoiced after they have been provided.
For subsequent years, the Maintenance fees owed in connection with perpetual licences are payable in advance at the start of each contractual year.
8.5. Terms of payment
Invoices must be paid within thirty (30) days from the invoice date. Payments must be made by the Customer by bank transfer to the account indicated in the Agreement.
No discount shall be granted for prepayment.
Any sums owed by the Customer to Prim’X Technologies shall incur interest at a daily rate as from the date on which Prim’X Technologies should have received payment, at three times the legal interest rate applicable in France. The Customer shall, moreover, incur a fixed charge of 40 euros to cover debt collection costs. Late payment penalties shall be payable as from the first day on which payment is late, without any formal notice being necessary, and shall continue to run until the payment in full of all sums owed, including interest.
The Customer may not put forward any grounds whatsoever for deferring or changing the terms of payment, in particular any dispute regarding the quality or nonconformity of the Services and/or of the Software. In the event of failure to pay within the stipulated deadline and 48 hours after the sending of formal notice to pay is left unheeded, Prim’X Technologies shall be entitled to demand immediate payment of the outstanding balance owed and to suspend the fulfilment of its obligations, without prejudice to its right to claim damages and/or terminate or cancel the Agreement.
9. Term and Termination
Under no circumstances may the Agreement be renewed by tacit consent.
Save in the case of early termination, the Software licences are granted to the Customer either for the legal term of copyright, in the case of a perpetual licence, or for the term stipulated in the Agreement, in the case of a subscription licence.
9.1.2. Maintenance Services
In the case of a perpetual licence, the length of time during which the Customer acquires Maintenance Services provided by Prim’X Technologies is indicated in the Agreement. The Customer is, however, hereby informed that subscription to Maintenance and support Services is mandatory for the first year as from its purchase of the Software for orders of more than fifty (50) licences for the Software, and for the first three years as from its purchase of the Software for orders of less than fifty (50) licences for the Software (hereinafter the “Initial Term”).
Prim’X Technologies will not accept any order for Maintenance Services for Software for which the Initial Term has expired, unless the Customer agrees to back date the new effective date to the end of the Initial Term and to pay the price corresponding to this period. Prim’X Technologies reserves the right to refuse any order for Maintenance Services if the Initial Term has expired more than 6 months previously.
In the case of a subscription licence, the period during which the Customer has access to Maintenance Services is the same as that of the Agreement pursuant to clause 9.1.
One party (hereinafter the “Terminating Party”) may terminate the Agreement as of right by sending the other party written notice thereof, by registered letter with acknowledgement of receipt, if the other party breaches any of the provisions whatsoever set out in the Agreement and fails to remedy the said breach within 30 (thirty) days following receipt of the Terminating Party’s notice indicating the Terminating Party’s intention to exercise this clause, without prejudice to any compensation for direct and indirect damage it may suffer as a result of such termination. Obligations the breach of which is liable to give rise to termination of the Agreement include the payment obligation, compliance with the terms and conditions of the Software user licence appended hereto, compliance with the intellectual property rights of Prim’X Technologies and, in general, performance of the Agreement in good faith.
If the breach cannot be remedied (notably in the case of a breach of an obligation not to perform an action) termination shall be with immediate effect.
Prim’X Technologies also reserves the right to terminate the Agreement as of right, with immediate effect, by registered letter with acknowledgement of receipt in the event of a deterioration in the Customer’s financial or commercial situation that risks giving rise to a payment default.
Prim’X Technologies shall not be liable to pay the Customer any compensation in this respect.
9.3. Consequences of termination
If the Agreement is terminated, the parties shall remain liable for any act generating liability that occurred prior to termination and for any amount owed prior to termination.
At the end of an Agreement concerning subscription licences, for any reason whatsoever, the Customer undertakes to uninstall the Software concerned.
10. Confidential Information – Personal Data
10.1. Each party shall consider as strictly confidential and refrain from disclosing any information, data, technical formula or concept the other party made available to it in any form whatsoever (written, oral, by means of magnetic, electronic or computer media, etc.) in the context of the Agreement (hereinafter the “Confidential Information”).
Neither Party shall disclose Confidential Information concerning the other party to a third party (with the exception of its employees) without the express, written consent of the other party, and shall refrain from using any Confidential Information other than for the performance of the Agreement. Each party shall apply the same level of precautions it uses to prevent disclosure of its own Confidential Information to the other party’s Confidential Information.
Each Party may, however, refer to the commercial relationship hereby formed for publicity purposes.
Confidential Information shall not include information that is:
(a) generally available to or known by the public,
(b) already known to the recipient,
(c) developed independently by the recipient outside the scope of the associated Agreement,
(d) lawfully disclosed by a third party, or
(e) disclosed in the form of testimony before a competent authority.
Each party shall return to the other party all documents and/or means of electronic access and/or means of authentication placed at the other Party’s disposal as part of this Agreement as soon as possible after termination of the Agreement for whatsoever reason.
10.2. Customers are hereby informed and accept that when they place an order, Prim’X Technologies may store, process and use any data contained in the Agreement for the purpose of processing it, pursuant to the provisions of the French Data Protection Act of 6 January 1978 as amended by the law of 20 June 2018 and of the European General Data Protection Regulation (GDPR). This information is strictly confidential and is only received by Prim’X Technologies.
In accordance with the national and European regulations in effect, Customers have the right to access, rectify and erase their personal data, to restrict or oppose processing of such data, and to obtain the portability of such data. They may exercise these rights by contacting (email@example.com). They also have the right to lodge a complaint with a supervisory authority. Lastly, they have the right to set out instructions concerning the fate of their personal data after their death.
Customers’ personal data may also be used for e-marketing purposes by Prim’X Technologies or by its partners, subject to obtaining the Customer’s express, prior consent.
10.3. The Customer owns and is solely responsible for the content or data it transfers via the Software. In particular, the customer acknowledges that it is solely responsible for ensuring such content or data conform to applicable laws and regulations regarding the protection of personal data. Prim’X Technologies’ involvement is simply in the capacity of a processor with regard to such laws and regulations.
Likewise, the Customer warrants to Prim’X Technologies that none of the elements provided to the latter as part of this Agreement and the performance of the Services infringe on the intellectual property rights of third parties. It shall hold the Prim’X Technologies harmless from and against all consequences of any kind (including the costs of proceedings, lawyers’ fees, damages and compensation, etc.) in the event that it is held liable by a third party in this respect.
The Customer shall access the Software using its own hardware and under its own responsibility. Some Software require an Internet connection. In this case, it is up to the Customer to subscribe to a communications service compatible with the Software, from a telecommunications and/or Internet service provider. The Customer is hereby informed that Prim’X Technologies may under no circumstances be held liable for any failure of the Software attributable to the telecommunications system used by the Customer.
The Customer expressly acknowledges that Prim’X Technologies has provided it with all information necessary for the licence, in particular information enabling it to assess the ability of the Software to meet its needs and information concerning necessary precautions regarding its implementation and use.
Prim’X Technologies shall take all due care to perform the Services in line with professional standards in its sector, and shall allocate the necessary resources thereto.
In the event of any doubt regarding the interpretation of a clause or in the absence of any indication making it possible to determine the extent of Prim’X Technologies’ obligations, the Customer acknowledges that Prim’X Technologies’ obligations shall constitute “best efforts” obligations.
With respect to the means of encryption, the Customer is responsible for ensuring that Workstations and Users of the Software ensure the safekeeping and recoverability of their keys (passwords, certificates and hardware devices) throughout the term of the licence. The Customer is, moreover, responsible for backing up its data correctly, in accordance with best practice in the field of digital data. In particular, prior to uninstalling the Software from a Workstation, the User is responsible for ensuring that all data encrypted in the context of its use of the Software have been returned in an unencrypted form.
Prim’X Technologies may not be held liable for incorrect use of a means of encryption or, in general, of the Software, nor for undesirable behaviour in connection with the environment in which the Software is used (malice, code theft, etc.).
Finally, the Customer is responsible for ensuring that the manner in which workstations and Users use the Software is compliant with all applicable regulations.
Under no circumstances may Prim’X Technologies be held liable for indirect damage (non-material or commercial loss, loss of data, loss of profits, sales, orders or clientele) suffered by the Customer. UNDER NO CIRCUMSTANCES, MOREOVER, IN ITS RELATIONS WITH THE CUSTOMER, EXCEPT IN THE EVENT OF GROSS NEGLIGENCE, MAY PRIM’X TECHNOLOGIES’ LIABILITY EXCEED THE AMOUNT PAID TO PRIM’X TECHNOLOGIES BY THE CUSTOMER IN CONSIDERATION FOR ITS OBLIGATIONS DURING THE YEAR IN WHICH THE ACT GENERATING LIABILITY OCCURRED.
Any complaint by the Customer that Prim’X Technologies has failed to fulfil its contractual obligations must be justified and sent by registered letter with acknowledgement of receipt within one year from the date of discovery of the facts liable to provide grounds for said complaint. Failure to proceed as such shall be deemed as the Customer having waived all criticism of performance by Prim’X Technologies of its contractual obligations.
12. Compliance with social security legislation
Prim’X Technologies states that it meets its legal obligations with respect to the fight against clandestine work. It guarantees, in this respect, that the work will be performed by persons legally employed with regard to Articles L.3231-4, L.3231-5, L.1221-13, L.1221-14 and L.1221-15 of the French Labour Code (Code du travail) and that it shall require a similar commitment on the part of its subcontractors.
13. Specific conditions for retailers
On an exceptional basis, these general terms and conditions of sale also apply to any sale of the Software and any provision of the Services by Cha Prim’X Technologies to any retailer (hereinafter the ‘Retailer’).
The Retailer shall provide and maintain the Software and perform all Services in compliance with these general terms and conditions. It undertakes, in this respect, to obtain the end customer’s acceptance of these general terms and conditions and guarantee the end customer’s compliance with them.
Should the Retailer ask Prim’X Technologies to perform work on the end customer’s site, any work performed by Prim’X Technologies will be invoiced to the Retailer at the listed rate.
The Retailer is solely responsible towards the end customer for the marketing of any Software and/or Services. The Retailer is solely liable for the information it provides and for any harm or damage resulting from a failure to properly perform its contractual obligations.
For any sale of the Software by the Retailer, the latter shall inform PRIM’X, at the time of the order, of tax rates applicable if any and transmit to PRIM’X the tax discharge of such taxation to avoid any double taxation situation.
14. Applicable law – Jurisdiction
14.1. The general terms and conditions of sale and the Agreement are governed by French law.
14.2. The parties hereby agree to endeavour to resolve any disagreement regarding these general terms and conditions or the resulting Agreement amicably.
SHOULD THEY FAIL TO REACH AN AMICABLE AGREEMENT WITHIN THIRTY DAYS, THE COMMERCIAL COURT OF LYON (FRANCE) SHALL HAVE SOLE JURISDICTION OVER ANY DISPUTE ARISING FROM THE TRANSACTIONS REFERRED TO IN THESE GENERAL TERMS AND CONDITIONS, INCLUDING IN THE CASE OF SUMMARY PROCEEDINGS, AN EX PARTE APPLICATION OR MULTIPLE DEFENDANTS.
15. Severability – Non-waiver – Evidence
Should any of the clauses or paragraphs included in these general terms and conditions be found to be null and void, notably by a court of justice, this will not affect the other provisions, which will remain in full force and effect.
Forbearance by either party with regard to the other may not be construed as a waiver of its right to use all the rights granted hereunder, in particular forbearance regarding payment deadlines.
In the event of a dispute, the parties agree to accept faxes and e-mails as original documents that may be used as evidence, and shall not contest this means of proof, unless to dispute its authenticity.