§ 1 GENERAL
1.1 In these general terms and conditions of supply (“General Conditions”):
(a) “Affiliate” means any entity, whether incorporated or not, that is from time to time controlled by, is under common control with, or controls a person, where “control” means the ability, whether directly or indirectly, to direct the affairs of another by means of majority ownership, contract, or otherwise.
(b) “Contract” means any or (as the case may be) each contract that we enter into with you in respect of the Product and Service Specification (however concluded), and these General Conditions shall form a part of such contract;
(c) “COCKPIT” means a Software as a Service (SaaS) solution (online platform) which digitally maps the work processes of Investor Relations Managers;
(d) “Due Date” means 5.00 p.m. on the day that is 30 days following the date of delivery of our invoice;
(e) “Licenced Platform” means the medium which displays the contents we provide for the client (e.g. corporate website);
(f) “Product and Service Specification” means the product and service specification outlining the scope of the rights of the parties and their obligations to be performed under the Contract;
(g) “RSA SecurID® Token” means the hardware that ensures a secure two-factor authentication to access the COCKPIT;
(h) “Transmitted Information” means any content supplied by us in accordance with the Product and Service Specification;
(i) “we”, “us” or “our” means EQS Group SAS, a company incorporated under the laws of France with registered number 803 942 785 and with its registered office located at 3, rue Tronchet, 75008 Paris, together with any affiliated group company of EQS Group SAS;
(j) “you” or “your” means the person, firm or company purchasing products and services from us.
1.2 The Contract applies to the exclusion of any and all terms and/or conditions that may be submitted by or for you under any purchase order, specification or any other document (“Customer Conditions”), which shall, despite any contrary provisions of any Customer Conditions, be void and of no effect and shall not form any part of the Contract even if any such document:
(a) is referred to in the Contract; or
(b) formed any part of pre-contractual negotiations or correspondence between the parties, and you irrevocably waive any right that you might otherwise have to rely on any Customer Conditions.
1.3 Notwithstanding clause 1.2, we may from time to time vary these General Conditions in such manner as we determine.
1.4 Each Contract entered into between the parties in respect of the relevant Product and Service Specification shall constitute a separate contract that is subject to these General Conditions and you shall ensure that the Product and Service Specification under the Contract is complete and accurate.
1.5 In the event that there is a conflict between the terms of any Contract and these General Conditions, the terms of the Contract shall prevail.
1.6 Notwithstanding any provisions in the Contract to the contrary, we shall be entitled to revise and/or modify the Product and Service Specification under the Contract provided that, at our discretion:
(a) such revision(s) and/or modification(s) are just and reasonable for you; and
(b) the material terms of the Contract are not cancelled and made void.
1.7 Further to clause 1.6 we shall notify you in text form of any proposed revision(s) and/or amendment(s) to the Product and Service Specification under the Contract.
1.8 If at any time any provision of the Contract is, becomes or is found to be illegal, invalid or unenforceable (in whole or in part), the legality, validity and enforceability of the remainder of the Contract shall not be affected.
1.9 We shall not be bound by any clerical or accidental errors in documents issued by us.
§ 2 TRANSMITTED INFORMATION
2.1 You shall be solely responsible for the content and form of the Transmitted Information and you shall be responsible for ensuring that the Transmitted Information is not unlawful and that it complies with all applicable laws and stock exchange regulations, and market customs and practices.
2.2 You shall defend, indemnify and hold us harmless from any and all claims, damage and expenses which may incur from a failure to comply with your obligations under clause 2.1. The same applies in case of claims from third parties as a result of your content, which can be accessed via a link on the Licenced Platform. The indemnity obligations include, without any limitation, the expenses for reasonable and adequate legal fees.
2.3 You shall supply in a reasonable timeframe upon our request all documents and data required by us for fulfilling our obligations in respect of delivering and/or performing the Product and Service Specification under the Contract.
§ 3 ACCESS PROTECTION
3.1 Where the Product and Service Specification involves the use of the COCKPIT, you shall use a user name and a password (including the RSA SecurID® Token) and you undertake to protect the logon details (including the RSA SecurID® Token) from all unauthorised use and access.
3.2 You shall be liable to us for any and all loss or damage resulting from any unauthorised use of the logon details unless such loss or damage is the result of negligence of the duty of care incumbent solely on us.
§ 4 OWNERSHIP
4.1 We retain all rights in the Products. These General Terms as well as the individual Contract grant no ownership rights to you. No license is granted to you except as to use of the Products and Service Specification as expressly stated herein. The name, the logo, and the product names associated with each Party are trademarks of the relevant Party, and they may not be used without the other Party’s prior written consent or as otherwise expressly indicated here.
4.2. You agree not to reverse engineer the Products, the underlying components, or other technology. You will not use or access the Products or Service to: (1) build a competitive product or service, (2) make or have made a product using similar ideas, features, functions or graphics of the Products, (3) make derivative works based upon the Products or Service, unless otherwise provided for by this Agreement, or (4) copy any features, functions or graphics of the Products or Service. You will not frame or mirror the Products or Service. Use, resale, or exploitation of the Products or Service except as expressly permitted in this Agreement is prohibited.
§ 5 PRICE
5.1 Unless otherwise agreed in writing by or for us, we shall be remunerated in accordance with the price list for the Product and Service Specification, such price list being included in the Contract. Prices may be varied by us from time to time by giving you no less than 30 days’ notice.
5.2 Prices payable shall be exclusive of VAT, which shall be charged at the applicable rate as at the date of invoice.
§ 6 PAYMENT
6.1 Unless otherwise agreed in writing by or for us, you shall pay us for all invoiced items by the Due Date and in Euro.
6.2 Our payment method is by bank transfer to such account as we may nominate from time to time in writing. We reserve the right to impose a reasonable surcharge on payments by other methods. Time is of the essence for all payments due to us from you. No payment shall be deemed received until we have received payment in full.
6.3 You shall not, without our prior written consent:
(a) set off any sums payable to you by us against any sums payable to us by you; or
(b) deduct in advance any amounts due from us from payments due from you.
6.4 If any payment is not received by us by the Due Date, then without prejudice to any of our other rights or remedies:
(a) we may cancel any orders in respect of which delivery has not taken place; and/or
(b) credit facilities may be withdrawn, and further supplies of Product and Service Specifications may be on a cash-with-order basis only.
§ 7 WARRANTY AND LIABILITY
7.1 We warrant that the Products or Service will perform as described in the Contract during the term of the Contract. We will correct any reproducible impairment to the features and functionality in the Products or Service so that it conforms to this warranty.
7.2 If the Products or Service does not perform as set forth in the Contract due to our fault or otherwise, our obligation is to: (i) repair the Products or Service so it will conform with its Documentation; (ii) replace the non-conforming Products or Service with Products or Services that does conform with the contractual definition, and is the same as or is functionally the same as the ordered Products or Service; or (iii) if neither of these remedies are feasible, provide a pro-rated refund limited to the period in which our Products or Services were not conforming.
7.3 Claims arising from hidden or apparent defects become statute-barred in 12 months calculated from the start of the statutory statute of limitations.
7.4 Notices of defect shall be given in writing.
7.5 We warrant that the Products or Service and their use by you do not infringe on any intellectual property rights (including without limitation, patents, copyright, moral rights, registered designs and design rights, trademarks or trade names) of third parties in the country of the relevant place of delivery. If a third party brings forward a legitimate claim against you due to a violation of intellectual property rights in connection with Products or Services provided by us, we shall accept the following liability towards you within the period specified in Clause 7.3.
7.6 We shall at our discretion and expense, either procure a right to use the relevant Products or Service or modify it such that the intellectual property rights are no longer infringed, or replace it. If the aforesaid is not reasonably possible for us, you shall be entitled to demand a reduction in price or rescind from the agreement.
7.7 We shall only be bound to the obligations described above provided that you have immediately notified us in writing of the claims asserted by the third party, that you have not acknowledged infringement and that all counter measures and settlement negotiations are reserved to us. Your claims for infringement of intellectual property rights shall be excluded if you are liable for the infringement of the intellectual property rights.
7.8 Any further rights and remedies of you than those as per Clauses 7.5 to 7.8 based on an infringement of third parties’ intellectual property rights shall be excluded.
7.9 You acknowledge that you have not relied on any statement, promise or representation made or given by or for us which is not expressly set out in the Contract.
7.10 EXCEPT AS PROVIDED IN THIS CLAUSE 7, WE SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE OF WHATEVER NATURE AND HOWEVER CAUSED. NOTHING IN THESE GENERAL CONDITIONS SHALL, HOWEVER, EXCLUDE OR RESTRICT OUR LIABILITY FOR FRAUD, DEATH OR PERSONAL INJURY RESULTING FROM OUR NEGLIGENCE OR FOR ANY MATTER FOR WHICH WE CANNOT LAWFULLY EXCLUDE OUR LIABILITY.
NEITHER PARTY TO THIS AGREEMENT, NOR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, OTHER REPRESENTATIVES OR AGENTS OR ANY PARTY TO ANY ORDER/STATEMENT OF WORK, SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES SUFFERED BY THE OTHER PARTY AS A RESULT OF PERFORMANCE OR NON-PERFORMANCE UNDER THIS AGREEMENT (INCLUDING ANY AND ALL STATEMENTS OF WORK), WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN ARISING OUT OF OR IN RELATION TO THIS AGREEMENT. EACH PARTY’S LIABILITY TO THE OTHER PARTY FOR DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT (INCLUDING STATEMENTS OF WORK) SHALL BE LIMITED TO DIRECT DAMAGES, AND SHALL NOT EXCEED THE VALUE OF THE CONTRACT.
§ 8 REPUTATION AND INTELLECTUAL PROPERTY RIGHTS
8.1 You undertake not to do anything calculated or likely to harm our reputation or the reputation of any of our affiliates or any such affiliate’s brands.
8.2 All intellectual property rights in the materials provided by us or on our behalf to you in connection with the Contract shall remain our or our licensors’ property. We hereby grant you a limited, non-exclusive licence to use those intellectual property rights for the duration of the Contract solely for the delivery and/or performance of the Product and Service Specification in accordance with the Contract.
8.3 You shall ensure that any reference to or use of our or our licensors’ trademarks is in a manner and form approved by us and accompanied by an acknowledgement that the trade mark belongs to us or our licensors. You shall not use any other trademarks in relation to the Product and Service Specification without first obtaining our express written consent.
8.4 You shall, immediately on becoming aware of the same, notify us of any infringement or wrongful use of our or our licensors’ trade-mark or other intellectual property rights which comes to your attention, and shall co-operate at all times with us in the prevention of any such infringement or wrongful use.
§ 9 CONFIDENTIALITY
9.1 In this clause “Confidential Information” shall mean any information disclosed (whether before or after the Effective Date and whether in writing, verbally or by any other means and whether directly or indirectly) by a Party (the “Disclosing Party”) or by any person acting on behalf of the Disclosing Party to the other Party (the “Receiving Party”) or to any person acting on behalf of the Receiving Party, including, without limitation, any information relating to the existence or the terms of this Agreement or the Disclosing Party's Software, operations, processes, plans or intentions, Software information, financial information, know-how, design rights, trade secrets, market opportunities and business affairs. .
9.2 During the term of the Contract(s) and for a period of three (3) years following its termination or expiration for any reason, the Receiving Party shall keep the Confidential Information strictly confidential and shall not use it or disclose it to any third party (except solely, if bound by equivalent obligations of confidentiality, any of its personnel that reasonably require access to Confidential Information for the purpose of fulfilling its obligations under the Contract).
9.3 The Receiving Party shall, and shall procure that any such personnel shall, at the Disclosing Party’s request or in any event upon termination of the Contract for any reason:
(a) return any or all Confidential Information to the Disclosing Party;
(b) ensure that all Confidential Information stored electronically, digitally or magnetically by the Receiving Party and/or any such personnel is erased; and
(c) cease all further use of Confidential Information.
9.4 The Receiving Party’s obligations under this clause do not apply to the extent otherwise required by law or by a court, regulatory authority or other competent authority provided that the Receiving Party gives the Disclosing Party not less than five (5) business days’ notice in writing of that disclosure.
9.5 The Section 9.2 does not apply to any Confidential Information:
(a) to the extent that it is or becomes publicly known other than by breach of this Agreement by the Receiving Party;
(b) which the Receiving Party can show by its written records was in the Receiving Party’s possession prior to the Receiving Party receiving it from the Disclosing Party and which the Receiving Party had not previously obtained from the Disclosing Party or from another person on behalf of the Disclosing Party under a confidentiality obligation;
(c) which the Receiving Party obtains or has available from a source other than the Disclosing Party without breaching any confidentiality obligation;
(d) which the Receiving Party develops independently, without use of Confidential Information of the Disclosing Party.
9.6 Confidential Information shall remain the Disclosing Party’s property.
§ 10 REMEDIES
(a) you commit a material breach of the Contract and/or of any other contract between (1) you and (2) us or any of our affiliates (“Other Contract”); or
(b) (i) you make any composition or arrangement with all or any class of your creditors or become subject to an administration or government order or (being an individual or firm) become bankrupt or (being a company) go into liquidation or receivership (otherwise than a voluntary liquidation for the purposes of a bona fide scheme of solvent amalgamation or reconstruction); or (ii) a receiver, trustee, administrator or liquidator is appointed over any of your undertaking, property or assets; or (iii) you cannot pay (or have no reasonable prospect of being able to pay) your debts generally as they become due or suspend any payments to us or cease, or threaten to cease, to carry on your business in the normal course; or (iv) you take, suffer or are the subject of (or propose to take or are threatened with or any step is taken towards) any similar action, event or proceedings in any jurisdiction in consequence of debt; or (v) we reasonably consider that any of the above circumstances are likely to occur,
then without prejudice to any of our other rights or remedies: (A) we shall, by giving you written notice and without any liability to you, be entitled to terminate the Contract and/or (acting, where applicable, on such affiliate’s behalf) such Other Contract with immediate effect or to suspend the performance of our obligations under the Contract and/or (acting, where applicable, on such affiliate’s behalf) such Other Contract; and (B) if any Product and Service Specification has been performed and/or delivered but not paid for, all outstanding sums payable for such Product and Service Specification shall become immediately due and payable (whether or not already invoiced by us).
10.2 Termination of the Contract (for whatever reason) shall not affect:
(a) either party’s rights, obligations or remedies that have accrued before the date of termination; or
(b) the coming into force or continuance in force of any provision of the Contract that is expressly or by implication intended to come into or continue in force by or after such termination.
10.3 We reserve the right, by giving you written notice and without any liability, to postpone performance of the Product and Service Specification (either in part or in its entirety), to amend or revise the scope of the Product and Service Specification ordered by you or to cancel the Contract with immediate effect if we cannot fulfil it due to any circumstances beyond our reasonable control or which make such fulfilment impossible or illegal.
§ 11 DATA PROTECTION
11.1 We will take appropriate measures for storage of data and for protection of our IT systems against software with damage function (viruses) and unauthorized access by third parties, in order to reasonably protect information received from you, and the results generate for the same, against loss, modification, forwarding or access by unauthorized third parties.
11.2 To the extent that we are granted access to personal data in connection with this Contract, we shall comply with the statutory provisions relating to protection of personal data and data privacy and shall enable you to keep yourself informed that such provisions are being complied with. We confirm that we will bind our employees and freelance workers in writing to comply with applicable data privacy laws.
§ 12 ASSIGNMENT
You may not, without our prior written approval, assign, charge or otherwise dispose of all or any part of the benefit of the Contract or sub-contract any or all of your obligations under it.
§ 13 GOVERNING LAW AND JURISDICTION; SEVERABILITY CLAUSE
13.1 The Contract and any related dispute or claim (contractual or non-contractual) shall be governed by and construed in accordance with the laws of France.
13.2 Each party irrevocably submits for all purposes of the Contract (including, without limitation, any such dispute or claim arising from it) to the exclusive jurisdiction of the courts of France. The application of the UN convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) shall be excluded.
13.3 In the event of legal invalidity of individual stipulations, the other parts of this Contract shall remain valid. The aforesaid shall not apply where compliance with the terms of this Contract would constitute unacceptable hardship for either party.