GENERAL TERMS AND CONDITIONS OF USE FOR SOFTWARE IN SAAS MODE (SOFTWARE AS A SERVICE)

*IMPORTANT NOTICE: These Terms and Conditions have been translated into English for convenience purposes only. This Agreement is governed by French law. In the event of any discrepancy, inconsistency, or conflict between this English version and the original French version, the French version shall prevail and be the only legally binding version.

PREAMBLE

The company NVEIL, a société par actions simplifiée (simplified joint-stock company) with a capital of 30,000 euros, registered with the Trade and Companies Register (RCS) of Grenoble under number 939 296 109, and whose registered office is located at: C/O Satt Linksium, 31 rue Gustave Eiffel, 38100 Grenoble, France, specializes in software publishing.

In the context of this activity, NVEIL has developed the visualization software named NVEIL AI (hereinafter the “Software”).

NVEIL publishes the Software in SaaS mode.

The Software is intended for both natural persons and legal entities wishing to acquire it in the context of their activity (hereinafter the “Users” or the “Clients”).

Users may act as professionals (hereinafter the “Professional Clients”) or as consumers and/or non-professionals (hereinafter the “Consumer Clients”) within the meaning given by the preliminary article of the French Consumer Code (Code de la consommation).

Provisions applicable exclusively to Professional Users are expressly stipulated as such in these terms. Similarly, provisions applicable solely to Consumer and/or non-Professional Users are expressly stipulated as such in these terms. All other provisions are applicable to all types of Users.

These general terms apply to any use of the Software by a User.

The User acknowledges having read these General Terms (GT) prior to subscribing to a Subscription (free or paid) for the Software license and undertakes to respect them.

Thus, the Parties have observed the convergence of their interests and have agreed to establish this contract, recording the rights and obligations of each Party in this respect.

The Parties intend to specify as a preliminary point that this Contract is not a standard form contract (contrat d’adhésion) as defined in paragraph 2 of Article 1110 of the French Civil Code (Code civil), i.e., a contract whose general conditions would have been withdrawn from negotiation. They declare that the provisions of this contract have been, in compliance with the mandatory provisions of Article 1104 of the French Civil Code, negotiated in good faith.

This Contract prevails regarding the subject matter of the contract over any general terms of sale or supply established by either of the Parties.

ARTICLE 1 – PRE-CONTRACTUAL INFORMATION

The following provisions of Article 1 apply only to the Consumer Client.

In accordance with the requirements of Articles L.111-1 et seq. of the French Consumer Code, NVEIL provides the User, prior to subscription to any Software license Subscription, with the description of each functionality of the Software, either on the NVEIL website, available at the following address https://www.nveil.com/ (hereinafter the “Site”) or in these GT.

The User is also informed, in a legible and understandable manner, of these GT and of all the following information:

  • the essential characteristics of the Software’s functionalities,
  • the financial terms/prices of the Subscriptions,
  • information relating to the identity and contact details of NVEIL (indicated in these GT and on the Site),
  • the existence and modalities of exercise of the applicable legal warranties as indicated in these GT,
  • the accepted means of payment,
  • information relating to the right of withdrawal (existence, conditions, time limit, modalities of exercise),
  • the possibility of resorting to conventional mediation in the event of a dispute.

ARTICLE 2 – ACCEPTANCE OF THE GT – ORDER PLACEMENT

The User acknowledges having read these General Terms of License (hereinafter the “GT”) prior to subscribing to a Software license Subscription and undertakes to respect them.

The subscription by the User to a Software Subscription as well as the act of checking the box provided for this purpose implies the User’s express and unreserved acceptance of these GT.

The GT are also accessible on the NVEIL Website at the address www.nveil.com and/or upon accessing the Software.

In the event of non-acceptance, express and without reservation, of these GT by the User, access to the Software may under no circumstances be granted.

These GT prevail over any other general terms of sale or purchase of the User or NVEIL that have not been accepted in writing by both Parties.

ARTICLE 3 – DEFINITIONS

Terms whose first letter is capitalized have, by mutual agreement between the Parties, the following meaning:

“Subscription”: designates the concession of the right to use the Software in SaaS mode for a limited duration, as well as the performance by NVEIL of the associated maintenance and hosting services. The Subscription to the Software may be, depending on the functionalities the Client wishes to benefit from, free or paid. NVEIL offers the Client different levels of Subscription, giving rise to the application of different levels of maintenance and different functionalities of the Software. The different Subscriptions offered by NVEIL are described and listed on the Site.

“Anomaly”: designates any defect, bug, design, implementation, programming or other error, malfunction or incident of all or part of the Software that is reproducible and renders the Software, in its use, non-compliant with the Documentation.

“Blocking Anomaly”: designates an Anomaly making the use of the Software or one of its essential functionalities impossible without a workaround solution having been found.

“Major Anomaly”: designates a Blocking Anomaly for which a workaround solution has been found.

“Minor Anomaly”: designates an Anomaly that is neither Blocking nor Major.

“Client” or “User”: designates the person subscribing to the Software use license with NVEIL.

“Content”: designates the various documents, photographs, elements, data (notably scientific, financial, etc.) integrated by the Client into the Software for their scientific visualization.

“Contract” or “GT”: designates these general terms as well as their Annex.

“Documentation”: designates the documents provided by NVEIL to the Client describing the functionalities of the Software. The applicable version of the Documentation is the version existing on the date of subscription to the Subscription by the Client.

“Data”: designates any information (including Content), emanating from the Client, stored, integrated, manipulated, processed via the use of the Software.

“Environment”: the type(s) of hardware, operating systems and/or software required for the use of the Software, as indicated in the Documentation.

“Software”: designates the NVEIL AI software, published by NVEIL and allowing the Client to generate visualizations from a dataset uploaded by the user.

“Maintenance”: designates the services comprising:

  • Corrective maintenance
  • Preventive maintenance
  • Evolutionary maintenance

“Site”: designates the NVEIL website available at the address [www.nveil.com], on which the Software is accessible, as well as the various Subscriptions offered, with a description of the services included in each Subscription.

ARTICLE 4 – OBJECT

The purpose of this Contract is to define the conditions under which NVEIL grants the Client a Subscription for the use of the Software in SaaS mode, including the maintenance and hosting services for the Software.

ARTICLE 5 – CONTRACTUAL DOCUMENTS

The following documents, which prevail in case of contradiction in the order in which they are listed, form the Contract binding the Parties and express the entirety of their obligations.

These documents are:

  • These GT
  • Their Annex

These GT and their Annex express the entire agreement of the Parties. They cancel and replace all prior provisions, whether written or oral. The GT and their Annex may only be modified by a written amendment signed by an authorized representative of each Party.

ARTICLE 6 – PROVISION OF AND ACCESS TO THE SOFTWARE

The Client may access the Software via the NVEIL Website after payment of the Subscription fee as specified on the Site.

To access the functionalities of the Software, the User proceeds with their registration during their first use of the Software, after access via the Site.

For this purpose, the User completes the fields appearing on the Software, namely by providing their surname, first name, email address, and telephone number.

Where applicable, when choosing to subscribe to a paid Subscription, the User pays the amount indicated on the Site, then finalizes their registration.

Upon completion of their registration, the User receives a confirmation email at the address indicated.

Access to the Software is effected via a remote connection directly through the NVEIL Website.

Upon creation of their account allowing access to the Software, the Client creates a username (identifier) and a password.

The credentials allow the Client to access their personal space on the specific portal provided for this purpose on the Site.

The Client is solely responsible for the confidentiality of the Users’ credentials and passwords and undertakes to ensure their security.

In the event of loss of the password, the User may use the procedure for generating a new password provided on the Software.

In general, the Client assumes responsibility for the security of the individual workstations of Users having access to the Software.

The Client undertakes to inform NVEIL by any means and as soon as possible in the event of:

  • Loss of a username or password;
  • Loss of any hardware/IT medium allowing a third party with no rights under these terms to access the Software directly or indirectly;
  • Hacking of one or more terminals belonging to the Client.

The User may connect to the Software at any time (24/7) with the exception of maintenance periods.

The internet network allowing access to the Software by the Client is chosen by the Client, who is solely responsible for it. The Client undertakes to comply with the technical prerequisites indicated by NVEIL. NVEIL’s liability may under no circumstances be incurred due to a problem accessing the Software arising from non-compliance with the technical prerequisites and/or the Client’s network and/or the internet in general.

The following provisions of Article 6 are exclusively applicable to Professional Clients.

NVEIL cannot be held liable for any unavailability or slowdowns in the use of the Software arising from technical hazards inherent to the Internet, as NVEIL is unable to guarantee the continuity of remote use of the Software’s functionalities.

NVEIL cannot under any circumstances be held liable for any impact whatsoever resulting from such unavailability related to maintenance on the Client’s activities.

ARTICLE 7 – RECOMMENDATIONS RELATING TO THE USE OF THE SOFTWARE

In order to access the Software and thus use its functionalities, the Client subscribes to a Subscription on the Site.

The Client uses the Software under their sole responsibility. They must in particular:

  • Ensure the proper configuration of their hardware/IT equipment, as well as their networks and operating systems;
  • Develop operating measures, set up control points and security mechanisms appropriate for the backup and restoration of data in the event of Anomalies;
  • Have qualified personnel available to remedy potential Anomalies and incidents;
  • Designate a project manager, chosen from among their personnel, to be NVEIL’s point of contact.

The Client is responsible for:

  • The protection of recorded data;
  • The results obtained and all direct and indirect consequences that may arise therefrom;
  • The use of the Software in their Environment.

ARTICLE 8 – RIGHTS GRANTED UNDER THE SUBSCRIPTION

NVEIL grants the Client a right of use over the Software and the associated Documentation, for the duration of the Subscription selected at the time of subscription on the Site.

This right of use is personal, non-exclusive, non-assignable, and non-transferable, in whole or in part, by any practical or legal means whatsoever, and allows the Client to use the Software for their internal needs only.

The Client is notably prohibited from copying, decompiling, or accessing the source codes of the Software in any way whatsoever.

This license is granted to the Client in consideration of the payment by the Client of the Subscription price (when the Client chooses to subscribe to a paid Subscription).

Any use or reproduction of the Software or the Documentation is prohibited and is likely to constitute an infringement (contrefaçon), which may be subject to civil or criminal legal proceedings.

The Client acknowledges that their compliance with the conditions of use is a determining condition of NVEIL’s consent within the meaning of Article 1110 of the French Civil Code, failing which the latter would not have contracted. It is agreed that the Client expressly refrains from:

  • Sublicensing, selling, renting, leasing, sharing, or otherwise transferring, or more broadly carrying out any operation likely to allow a third party to use the Software or to confer upon them any right whatsoever over the Software in any form whatsoever without the prior written agreement of NVEIL;
  • Distributing the Documentation to third parties, making the Documentation accessible via the Internet by any means whatsoever, and creating derivative works from the Documentation.

ARTICLE 9 – SOFTWARE MAINTENANCE TERMS

Within the framework of the SaaS mode Subscription to the Software, NVEIL provides maintenance and hosting services.

The Subscription to the Software includes the performance by NVEIL of preventive, corrective, and evolutionary maintenance of the Software intended, at NVEIL’s choice, to correct Anomalies and/or to upgrade the Software. Corrective maintenance aims at correcting Anomalies occurring during the use of the Software.

Corrective maintenance is not applicable in the event of:

  • Refusal of the Client to collaborate with NVEIL, notably by answering questions and requests for information issued by the support service;
  • Use of the Software not in accordance with its intended purpose and instructions given by NVEIL, in particular if the Anomaly is due to an event or environment placed under the Client’s control;
  • Installation of any software, software packages, or operating systems incompatible with the Software;
  • Failure of electronic communication networks;
  • Voluntary act of degradation, malice, sabotage;
  • Deterioration due to a case of force majeure;
  • Breach by the Client of their contractual obligations.

The Client benefits, within the framework of corrective maintenance, from access to the NVEIL hotline under the conditions described on the Site.

The response times for Anomalies ensured by NVEIL are indicated on the Site.

The response time starts from the declaration of the Anomaly by the Client using the support access points indicated on the Site.

It is the Client’s responsibility to ensure the compliance of Client workstations with the technical prerequisites indicated by NVEIL.

NVEIL declares and warrants that on the occasion of Software upgrades, it will not proceed with any removal, regression, or limitation of functionalities previously made available to Users, except upon prior warning to the Client, and where applicable by specifying the workaround or replacement functionalities it makes available to the Client within the framework of the new version.

ARTICLE 10 – HOSTING

NVEIL ensures the hosting of the Software and Client data in compliance with the Service Levels as indicated on the Site.

The Software is hosted on servers located in the European Union.

The Client may connect to the Software at any time (24/7) except for maintenance periods which will be indicated in advance.

In the event of interruption of access to the Software for maintenance, NVEIL will inform the Client, by implementing a pop-up window, during the use of the Software by the Client in the days preceding the planned maintenance, in order to allow them to take measures to avoid disruption to their activity.

NVEIL cannot be held liable for non-compliance with Service Levels for an event not attributable to it, and notably in the following cases:

  • Breach by the Client of their obligations under the Contract;
  • Failure of electronic communication networks used by the Client;
  • Failure of one of the elements constituting the Client’s software environment (Operating system, network systems, other software, etc.);
  • Voluntary action by the Client of degradation, malice, sabotage, intrusion, computer hacking;
  • Force majeure.

In certain exceptional cases, when the Client so requests, hosting may be carried out directly by the Client on their own internal servers.

ARTICLE 11 – OBLIGATIONS OF THE PARTIES

The Parties undertake to collaborate closely to allow the proper execution of the Contract and notably the smooth running of the Maintenance performance.

The Parties undertake to provide each other with mutual help and assistance to rapidly overcome any difficulties or incidents that may arise during the performance of the Maintenance.

Within the framework of its obligation of advice and assistance towards the Client, NVEIL undertakes to communicate to the Client all documents relating to the Software and in particular the Documentation presenting the functionalities of the Software.

The Client undertakes to use the Software in strict compliance with the terms and conditions of this Contract and in accordance with the Documentation.

ARTICLE 12 – LIMITS OF USE OF THE SOFTWARE – OBLIGATIONS OF THE USER

The Client acknowledges that the Software made available to them under this contract consists of an AI-type system allowing, under the conditions described on the Site, the scientific visualization of Data (notably scientific, marketing, financial accounting) transmitted by the User.

The Software does not have the object or function of interpreting, analyzing, or verifying the Data provided; it is limited to proposing a visual representation thereof.

NVEIL does not in any way guarantee the accuracy, relevance, or interpretation of the visualizations produced by the Software.

Furthermore, the Client acknowledges that the response times of the Software may vary depending on the volume of requests simultaneously made by the Client or by other users of the Software.

NVEIL shall not be held liable for any slowdowns or extensions of processing times resulting therefrom.

The Client undertakes not to integrate into the Software any personal data within the meaning of Regulation (EU) 2016/679 (GDPR).

Consequently, NVEIL declines all liability regarding processing carried out by the Client in the event that the latter integrates, in violation of these terms, non-anonymized personal data into the Software.

In such a case, the Client acknowledges:

  • acting under their sole and entire responsibility,
  • having obtained the consent of the data subject(s), or having an appropriate legal basis in accordance with the requirements of the GDPR,
  • assuming alone the obligations arising from the applicable regulations regarding personal data protection.

The Software may allow the Client to share in a collaborative manner the results generated from their requests.

This sharing is left to the entire initiative of the Client, who warrants having all necessary authorizations for this purpose.

The Client may also proceed with the export of results obtained via the functionalities provided for this purpose, under their sole responsibility regarding the use made thereof.

The User undertakes to:

  • Respect NVEIL’s recommendations;
  • Use the Software reasonably, with prudence and discernment;
  • Not publish Content (images, photographs, comments, descriptions, etc.) or information that is illicit, insufficient, inaccurate, or misleading, or even contrary to public policy (ordre public) and morality (bonnes mœurs) or infringing the rights of third parties, and notably Content of an abusive, defamatory, racist, xenophobic, revisionist nature or harming the honor or reputation of others, inciting discrimination or hatred of a person or group of persons based on their origin or their belonging to a specific ethnic group, race, or religion, nation, race or religion, threatening a person or a group of persons, of a pornographic or pedophilic nature, inciting the commission of a misdemeanor, a crime, or an act of terrorism or other, infringing the rights of others and the safety of persons and property;
  • Not publish Content (images, photographs, comments, etc.) infringing the rights of third parties, in particular personality rights, intellectual property rights, or any other personal right.
  • Consequently, the User undertakes either to be the owner of the Content integrated into the Software, or to have the rights authorizing them to disseminate it;
  • Respect the laws and regulations in force;
  • Not make commercial use of the Software and/or its contents;
  • Not upload or transmit Content containing or likely to contain viruses or programs that destroy or alter data, or that are likely to harm the Software and/or disrupt its operation or cause any prejudice whatsoever to other users of the Software and/or to NVEIL.

ARTICLE 13 – DURATION OF THE CONTRACT

The Contract enters into force upon subscription by the Client to the Software Subscription.

The Subscription is subscribed for either one year or one month, depending on the choice made by the Client at the time of subscription.

At the end of the initial period selected by the Client during registration, the Subscription will renew by tacit renewal (tacite reconduction) for new periods of the same duration (either one year or one month depending on the initial duration chosen by the Client) and may be terminated by simple registered letter with acknowledgment of receipt sent with a notice period of:

  • three (3) calendar months before the end of the current period, when the Subscription is annual;
  • 15 (fifteen) calendar days before the end of the current period, when the Subscription is monthly.

ARTICLE 14 – FINANCIAL CONDITIONS

Price

The Software is offered in the form of a Subscription, the paid or free nature of which depends on the functionalities selected by the Client at the time of subscription.

When the Client opts for a free Subscription, they benefit only from the functionalities indicated as such on the NVEIL Site.

NVEIL reserves the right to modify, limit, or remove all or part of the free functionalities, without compensation, subject to informing the Client in advance within a reasonable timeframe.

When the Client chooses a paid subscription, the applicable price is that in force on the day of subscription or renewal, as indicated on the Site.

The Subscription price is indicated in Euros.

Annual Revision

The Client is informed that a revision of the Subscription price will be automatically carried out at the beginning of each calendar year, based on the evolution of the Syntec Index (indice Syntec, French index for engineering, consulting and computing services) by application of the following revision formula:

P = P0 (S/So), in which:

  • P: Price after revision
  • Po: Original price
  • So: Last SYNTEC index, or any new index that would officially replace it, published on the date of entry into force of the Contract
  • S: The most recent SYNTEC index, or any new index that would officially replace it, known on the date of revision

In the event of the disappearance of the index, express jurisdiction is attributed to the President of the Commercial Court of LYON to define an index that will be integrated into the revision formula. This index must be chosen so that it is as close as possible to the disappeared index and respects the spirit that the Parties intended to define when establishing this revision clause.

Invoicing and Payment Terms

The Subscription is billed at the beginning of the period to fall due for the coming period. Payment for the Subscription is made solely in Euros. The amounts due to NVEIL are excluding taxes and net of all fees. The Client is solely responsible for the payment of any tax and duties related to the Subscription subscription. Sums due to NVEIL are fully payable no later than thirty (30) days following the date of issue of the NVEIL invoice subject to any specific provisions agreed in the Proposal. Any payment by set-off (compensation) is excluded. The Subscription price may be paid by the Client via the use of the STRIPE payment platform, in an environment secured by a data encryption process ensuring confidentiality. Validation of the order by means of the bank card number and the expiration date serves as a mandate to pay the price excluding taxes (HT) appearing on the order that the payment server transmits to the Client’s credit institution.

The following provisions of Article 14 are exclusively applicable to Professional Clients.

In the event of non-payment within the contractual deadlines, any unpaid amount will automatically bear interest day by day until the date of full payment in principal, interest, costs, and accessories, at a rate equal to three times (3) the legal interest rate in force, without any prior formality, and notwithstanding damages. Furthermore, in accordance with legal provisions, any late payment gives rise to the payment by the Client of a lump sum indemnity for recovery costs set by decree, at the date hereof, at 40 (forty) euros. All unpaid fees following a bank rejection of a Client’s payment will remain the financial responsibility of the Client. In addition, the failure by the Client to pay an invoice that has reached its due date will entail the acceleration of payment (déchéance du terme) of other current invoices and will consequently allow NVEIL to demand payment of all other invoices, including those whose due date has not yet passed.

ARTICLE 15 – DATA

Data Ownership

The Client is and remains the owner of all data they use within the framework hereof. The Client must take all necessary measures for the protection of their information system and notably regarding protection against viruses, worms, and other hostile intrusion processes. Generally, the Parties warrant that they have complied with all obligations incumbent upon them under applicable laws and regulations and notably European Regulation No. 2016/679 on the protection of personal data known as “GDPR“. In this respect, the Client declares that they have informed and obtained the consent of the natural persons concerned regarding the use made of their personal data. It is the Client’s responsibility to proceed with administrative formalities, authorization requests, and impact assessments provided for by laws and regulations in force concerning the processing they carry out and the data processed. The Client holds NVEIL harmless against any recourse, complaint, or claim emanating from a natural person whose personal data would be reproduced within the framework of the services.

Data Processing

Within the framework of using the Software, the Client includes their data, whether information, publications, and generally any data from their database that can be consulted by Users. The Client is solely responsible for any content included on the server and refrains in this respect from displaying any data:

  • Likely to violate public policy (ordre public) or contravening any legal provisions whatsoever;
  • Contravening the rights of third parties, image rights, privacy rights…

Generally, the Client is solely responsible for the quality, lawfulness, and relevance of the data and Content they transmit for the purpose of using the Software. They further warrant being the holder of the intellectual property rights allowing them to use this data or Content. They undertake not to infringe the rights of third parties. They will assume alone all consequences arising from non-compliance with these undertakings. In this regard, the Client warrants that they have all necessary rights and/or authorizations and will hold NVEIL harmless against any potential claim by a third party claiming to have an intellectual or industrial property right or any other right over any of the elements and notably texts, audio descriptions, films, files, software, databases that the Client uses within the framework of this Subscription. Consequently, NVEIL shall in no case be liable for any non-compliance of data and/or contents with laws and regulations, public policy, or the Client’s needs. The Client indemnifies NVEIL upon first request against any prejudice that would result from being implicated by a third party for a violation of this warranty. More generally, the Client is solely responsible for contents disseminated via the use of the Software. The Client remains the sole owner of data processed via the use of the Software.

Management of Personal Data / GDPR

The Client is informed that within the framework of managing its own client and supplier data, NVEIL acts as a Data Controller within the meaning of the GDPR. In this capacity, NVEIL hereby informs the Client that data collected for the performance of hosting and Maintenance, as well as data concerning Users, such as surname, first name, email address, may be retained for the needs of the processing and the duration of the contract, which the Client acknowledges and accepts upon signing hereof. This collected data is intended for referencing and management of its clients and suppliers (administrative operations, related to contracts, orders, etc.). The Client is informed that each contact/User is entitled to request to update, oppose, delete, or correct data concerning them, for legitimate grounds. They may exercise their rights subject to providing proof of identity to NVEIL, at the GDPR contact details present on the website. NVEIL undertakes to ensure confidentiality and security, and informs the Client and contacts/users that no data is transferred to a third party or outside of Europe within the framework of this processing.

ARTICLE 16 – INTELLECTUAL PROPERTY

The layout, structure, and graphic and textual elements of the Software, editorial content, drawings, illustrations, images, photographs, graphic charters, trademarks, logos, acronyms, corporate names, audiovisual works, multimedia works, visual content, audio and sound content, as well as any other content published within the Software and/or any other element composing the Software are the property of NVEIL or exploited by the latter under a license or authorization and subject to laws governing intellectual property.

Use of the Software confers no rights upon Users other than the use of the Software as provided herein.

Consequently, Users may under no circumstances and in no way reproduce, represent, disseminate, market, copy, translate, adapt, extract, and/or decompile all or part of any of the elements reproduced on the Software and all or part of the Software in general, without the prior and express agreement of NVEIL, except for Content originating from them.

Intellectual Property on Content

It is expressly understood that by integrating Content into the Software for analysis and visualization, the User acknowledges that they have the faculty to disseminate said Content via the Software.

By integrating Content and registering on the Software, the User thus grants the Publisher (NVEIL), for the whole world and the entire duration of copyright protection, the right to reproduce, represent, and act on said Content on the Software, for the sole purposes of carrying out the visualization work expected by the Client without any financial counterpart, which the User expressly acknowledges.

Furthermore, the User declares and warrants being the owner of the Content they integrate into the Software and that strictly free of all rights, or, at the very least, that they have the necessary rights for their integration and/or dissemination via the Software.

The following provision of Article 16 is solely applicable to Professional Clients.

The Client will bear all consequences whatsoever arising for NVEIL from the non-obtaining by the User of said authorizations, under the conditions required by law, from the persons concerned. In this respect, the Client indemnifies NVEIL against any recourse, complaint, or claim regarding the fact that contents provided by the User are reproduced without prior authorization from their owners.

ARTICLE 17 – WARRANTIES

Anti-virus Warranty

NVEIL undertakes that the Software is free of any virus known at the date of signature of the Contract. This anti-virus warranty also applies to any update, patch, or new Version.

Warranty of Quiet Enjoyment and Infringement

NVEIL declares being the holder of property rights over the Software and warrants the Client the quiet enjoyment of rights granted over the Software.

NVEIL warrants to the Client and undertakes to prove upon first request by the latter:

  • that it is the owner or holds sufficient rights over the elements necessary for the performance of its obligations under the Contract;
  • that if elements of the services are a derivative work, it has respected the intellectual property rights of the author of the initial work, in accordance with the Intellectual Property Code;
  • that the result of its services does not constitute an infringement (contrefaçon) of a pre-existing work.

In this respect, NVEIL undertakes to defend, at its own expense, the Client against any action brought against the latter on the grounds that the use of the licensed Software infringes the rights of a third party, subject, on the one hand, to the Client notifying NVEIL promptly and in writing of any action brought and, on the other hand, to the Client collaborating loyally in the defense by providing its assistance to NVEIL, and finally, the Client giving NVEIL control of the defense and/or of any action, including with a view to reaching a settlement. The Client expressly undertakes not to acknowledge the merit of a claim without the prior written agreement of NVEIL.

It is the Client’s responsibility to ensure that any User of the Software complies with the provisions of the Contract.

The choice of the Software and the results obtained therefrom are the sole responsibility of the Client. Moreover, it is the sole responsibility of the Client to take necessary measures for the protection of their data, in particular their backup and archiving.

The following provisions of Article 17 are exclusively applicable to the Professional Client.

NVEIL does not warrant that the Software is free from errors or bugs. Furthermore, NVEIL does not warrant in any way that the functions of the Software correspond to the Client’s needs and expectations, or that its use will be free from errors or other interruptions, nor that such errors will be corrected.

The provisions of the following paragraphs of Article 17 apply only to the Consumer Client.

The Software is guaranteed under:

  • the legal guarantee of conformity (garantie de conformité) provided for by Articles L.217-4 et seq. of the French Consumer Code, and
  • the warranty against hidden defects (garantie des vices cachés) provided for in Articles 1641 et seq. of the French Civil Code, under the conditions and according to the modalities referred to in the boxes below.

The User has a period of two years from access to the Software to obtain the implementation of the legal guarantee of conformity in the event of the appearance of a lack of conformity. During this period, the User is only required to establish the existence of the lack of conformity and not the date of its appearance.

The legal guarantee of conformity gives the User the right to bring the element concerned into conformity within thirty days following their request, without cost and without major inconvenience to them.

If the Software is brought into conformity within the framework of the legal guarantee of conformity, the User benefits from a six-month extension of the initial guarantee.

The User may obtain a reduction in the purchase price by keeping the non-compliant Software or terminate the contract by being fully refunded against cessation of use of the Software, if:

  • NVEIL refuses to bring the Software into conformity;
  • Bringing the Software into conformity occurs after a period of thirty days;
  • Bringing the Software into conformity causes a major inconvenience for the User, notably when the User bears associated costs;
  • The non-conformity of the Software persists despite NVEIL’s unsuccessful attempt to bring it into conformity.

The User is also entitled to a reduction in the price of the Software or to the resolution of the contract when the lack of conformity is so serious that it justifies that the reduction in price or the resolution of the contract be immediate. The User is then not required to ask for the Software to be brought into conformity beforehand.

The User is not entitled to the resolution of the sale if the lack of conformity is minor.

Any period of impossibility of use of the Software with a view to bringing it into conformity suspends the guarantee that remained to run until the delivery of the Software brought into conformity.

The rights mentioned above result from the application of Articles L. 217-1 to L. 217-32 of the French Consumer Code.

If NVEIL obstructs in bad faith the implementation of the legal guarantee of conformity, it incurs a civil fine of a maximum amount of 300,000 euros, which may be increased up to 10% of the average annual turnover (Article L. 241-5 of the French Consumer Code).

The User also benefits from the legal warranty against hidden defects pursuant to Articles 1641 to 1649 of the French Civil Code, for a duration of two years from the discovery of the defect. This warranty gives the right to a price reduction if the Software is kept or to a full refund against cessation of use of said Software.

In order to assert their rights, the User must inform NVEIL in writing of the non-conformity and/or defects affecting the Software within the deadlines referred to above. NVEIL will refund or bring into conformity the Software under warranty deemed non-compliant or defective under the aforementioned conditions.

Refund of the Software deemed non-compliant or defective will be made as soon as possible, and at the latest within fifteen (15) days following the finding of the lack of conformity or hidden defect.

Article 1641 of the Civil Code: The seller is bound by the warranty for hidden defects of the thing sold which render it unfit for the use for which it is intended, or which so diminish this use that the buyer would not have acquired it, or would have given only a lesser price, had they known of them.

Article 1644 of the Civil Code: In the case of Articles 1641 and 1643, the buyer has the choice to return the thing and have the price returned, or to keep the thing and have a part of the price returned.

Article 1648 of the Civil Code: The action resulting from redhibitory defects must be brought by the purchaser within a period of two years from the discovery of the vice. In the case provided for by Article 1642-1, the action must be introduced, under penalty of foreclosure, within the year following the date on which the seller can be discharged from apparent vices or lack of conformity.

Article L. 217-4 of the Consumer Code: The seller delivers goods in conformity with the contract and is liable for lack of conformity existing at the time of delivery. He is also liable for lack of conformity resulting from the packaging, assembly instructions or installation when the latter was made his responsibility by the contract or was carried out under his responsibility.

Article L. 217-5 of the Consumer Code: The commercial guarantee means any contractual undertaking by a professional to the consumer with a view to the reimbursement of the purchase price, replacement or repair of the good or the provision of any other service in relation to the good, in addition to his legal obligations aimed at guaranteeing the conformity of the good. The commercial guarantee is the subject of a written contract, a copy of which is given to the buyer. The contract specifies the content of the guarantee, the terms of its implementation, its price, its duration, its territorial scope as well as the name and address of the guarantor. Furthermore, it mentions clearly and precisely that, independently of the commercial guarantee, the seller remains bound by the legal guarantee of conformity mentioned in Articles L. 217-4 to L. 217-12 and that relating to defects of the thing sold, under the conditions provided for in Articles 1641 to 1648 and 2232 of the Civil Code. The provisions of Articles L. 217-4, L. 217-5, L. 217-12 and L. 217-16 as well as Article 1641 and the first paragraph of Article 1648 of the Civil Code are reproduced in full in the contract. In case of non-compliance with these provisions, the guarantee remains valid. The buyer is entitled to avail himself of it.

Article L217-9 of the Consumer Code: In case of lack of conformity, the buyer chooses between repair and replacement of the good. However, the seller may not proceed according to the buyer’s choice if this choice entails a cost clearly disproportionate with regard to the other modality, taking into account the value of the good or the importance of the defect. He is then bound to proceed, unless impossible, according to the modality not chosen by the buyer.

Article L. 217-12 of the Consumer Code: The action resulting from lack of conformity is prescribed by two years from the delivery of the good.

ARTICLE 18 – CONFIDENTIALITY

Each Party undertakes to ensure the confidentiality of information provided by the other Party within the framework of this Contract, of whatever nature, notably commercial, relating to know-how, organization, industrial strategy, notably relating to the activity of the other Party, the Software and its Documentation…etc… and any information not indicated as non-confidential both previously and during the performance hereof.

The Parties undertake, furthermore, not to exploit and not to have exploited the information obtained in application of this Contract for a purpose other than that of the performance of this Contract.

The Parties take all necessary measures to inform the recipients of the information of its confidential nature and the obligations arising from this clause.

This reciprocal confidentiality undertaking is valid for the duration of the Contract and the five (5) years following its expiration.

The Parties undertake, at the end of the Contract, to return to the other Party all documents containing confidential information or to proceed with their destruction, proof of which they must provide at the request of the other Party.

The Parties may under no circumstances keep documents or copies of documents containing confidential information without the express and prior agreement of the other Party.

ARTICLE 19 – LIABILITY

The following provisions of Article 19 apply only to the Professional Client.

NVEIL shall only be liable for the reparation of the pecuniary consequences of direct and foreseeable damages caused by its action within the framework of the execution of orders.

NVEIL shall under no circumstances incur liability for indirect or unforeseeable damages, which include notably, but without this list being exhaustive, any missed gain, commercial prejudice, loss of turnover or profit, loss of clientele, loss of opportunity (perte d’une chance), inaccuracy or corruption of files or data.

NVEIL is only liable in the event of proven misconduct (faute prouvée). The amount of NVEIL’s pecuniary liability is limited to the amount billed during the year of subscription to the Subscription.

NVEIL can under no circumstances be held liable for the fact that:

  • the Software is not adapted to the Client’s needs, insofar as the latter is solely capable of verifying the adequacy of the functions and specifications referred to in the Documentation with their needs;
  • the Software does not function under all particular conditions desired by the Client;
  • the Software does not function, whereas the Client has not respected the conditions indicated by NVEIL, or if they use a modified version of the Software without this version being certified by NVEIL.

The limitations and exclusions of liability specified are determined by the balance constituted together by the scope of NVEIL’s obligations and the agreed prices (or even the free nature of certain Subscription formulas), the amounts of compensation that NVEIL could be led to pay to the Client in the event of its liability being implicated, and the stipulations of the insurance policy covering NVEIL’s professional civil liability.

The Client is aware that the rates practiced by NVEIL are determined according to the existence of this limitation of liability.

ARTICLE 20 – ASSIGNMENT

The Contract may under no circumstances be the subject of a total or partial assignment or transfer, whether for consideration or free of charge, on the part of the Client, without the prior express written authorization of NVEIL.

NVEIL reserves the right to freely assign all or part of the Contract, or its rights or obligations arising therefrom, to companies of its group, or to any other company that may succeed it, regardless of the legal modalities thereof. In this hypothesis, the Client will benefit from the same rights and obligations as those appearing in this Contract, which will apply automatically (de plein droit) to any company succeeding to the rights of NVEIL.

ARTICLE 21 – FORCE MAJEURE

Neither Party shall be held liable in the event that the performance of its obligations is delayed or rendered impossible due to the occurrence of a case of force majeure or a fortuitous event (hereinafter “Force Majeure”) within the meaning of Article 1218 of the French Civil Code.

In the hypothesis of the occurrence of Force Majeure, the performance of the obligations of the Party suffering it is suspended.

The Parties shall, however, strive to take all reasonably possible measures with a view to continuing the Contract. However, if the Force Majeure persists for more than 30 days, this Contract will be automatically terminated.

Are notably considered as cases of Force Majeure: total or partial malfunction of the Software resulting from disruptions or interruptions of telecommunications means generated by local operators to whom the network is connected, exceptional weather conditions, floods, cases of riot, war or attacks, cases of total or partial strikes, blockage of means of transport.

ARTICLE 22 – TERMINATION

In the event of a serious or repeated breach by a Party of one of the obligations placed upon it in this Contract not remedied within a period of 30 (thirty) days from the receipt of a formal notice (mise en demeure) addressed by the other Party, the latter may terminate this Contract by sending the defaulting Party a registered letter with acknowledgment of receipt or any other extrajudicial act.

Termination will take effect on the date of receipt of the registered letter with acknowledgment of receipt by the defaulting Party.

The following provisions of Article 22 are exclusively applicable to Professional Clients.

In the event of termination of the Subscription by the Client, except in the case of termination for contractual breach on the part of NVEIL, all fees to remain due for the end of the current contractual period remain due.

In the event of termination of the Subscription to the Software and generally of the Contract for any cause whatsoever, the Client acknowledges that the amounts paid by them for the corresponding Subscription are non-refundable, and that such termination does not exempt them from paying on that date all amounts due to NVEIL under the Contract.

In the event of termination, for any cause whatsoever, or expiration of the Contract, NVEIL is released from all its contractual obligations towards the Client.

The Client must, for their part, cease using the Software and the Documentation of NVEIL.

ARTICLE 23 – SUSPENSION OF THE SUBSCRIPTION

If NVEIL considers in good faith that the use of the Software by the Client or their authorized Users may (i) present a risk for security or negatively impact the Software or other clients, (ii) lead to or allow impacting, removing, disabling or limiting in any other way the effectiveness of any technical protections (including any systems for management, control or analysis of the installation, access or use of the Software or protections of NVEIL’s intellectual property rights), (iii) engage the liability of NVEIL, a reseller or any other user or Client, or (iv) not respect the Contract, including the failure to pay any sums due under the Contract, NVEIL reserves the possibility, 15 (fifteen) days after a formal notice has remained unsuccessful or immediately in cases of particular seriousness, to deactivate or suspend immediately the Client’s access to the Software as well as to its content.

The Client will be informed of the suspension at the time it takes effect.

ARTICLE 24 – OPPOSITION TO TELEPHONE SOLICITATION

The provisions of the following article apply only to the Consumer Client.

The User is informed that insofar as they are led to transmit their telephone number to NVEIL for the creation of their account, they benefit, pursuant to Article L223-2 of the French Consumer Code, from the possibility of registering on the list of opposition to telephone solicitation (known as “Bloctel” in France).

ARTICLE 25 – RIGHT OF WITHDRAWAL

The provisions of the following article apply only to the Consumer Client.

In accordance with the provisions of Article L221-28 of the French Consumer Code, the User is informed that the right of withdrawal cannot be exercised for services fully executed before the end of the withdrawal period and whose execution has begun after the prior express agreement of the Consumer Client and express waiver of their right of withdrawal.

In this context, provided that the User expressly accepts the immediate execution of the subscribed services (by checking the box provided for this purpose during their subscription to the Subscription), they may under no circumstances avail themselves of the right of withdrawal, and the order will be final upon its validation by the User.

If nevertheless these conditions were not met, in accordance with Articles L.221-18 et seq. of the French Consumer Code, as soon as the User proceeds with the subscription to a Subscription, they benefit under the conditions of said articles from a right of withdrawal.

In this hypothesis, the User has a period of fourteen (14) working days from the date of activation of the Software to withdraw, without having to justify the reason.

To exercise their right of withdrawal, the User must notify NVEIL of their decision to withdraw by means of an unambiguous statement via the use of the withdrawal form accessible at the end of these GT in Annex 1, at NVEIL’s address, indicated at the head hereof.

NVEIL will then send the User an acknowledgment of receipt of the withdrawal upon its handling of the mail/email.

In case of withdrawal via the Software, NVEIL will communicate without delay to the User an acknowledgment of receipt of the withdrawal on a durable medium.

NVEIL undertakes to reimburse payments received in consideration for access to the Software without undue delay and, in any event, no later than fourteen (14) days from notification of withdrawal.

NVEIL will proceed with the reimbursement using the same means of payment as that which the User used for the initial transaction, except for return costs which remain the responsibility of the User.

ARTICLE 26 – MISCELLANEOUS PROVISIONS

The fact that one of the parties does not avail itself of any of the obligations referred to herein shall not be interpreted subsequently as a waiver of the obligation in question. The parties elect domicile at their respective registered offices as mentioned at the head hereof. The Contract forms, with any other document relating to the identification of these services for access to the Software functionalities, an indivisible whole. The Client accepts that NVEIL may, freely and without prior formality, subcontract all or part of its obligations hereunder, under its responsibility. If one or more stipulations hereof were held to be invalid or declared as such pursuant to a law or following a final decision by a competent court, the other stipulations would retain their force and scope. The parties will do what is necessary to replace the litigious provision with an adequate provision within the spirit of the Contract. The Client authorizes NVEIL to cite its name and use its logo in its commercial references.

ARTICLE 27 – LAW AND JURISDICTION

The following provisions of Article 25 apply exclusively to the Professional Client.

This Contract is in any event subject to French law both for rules of form and for rules of substance. In the event of a dispute, express jurisdiction is attributed to the Commercial Court of GRENOBLE (Tribunal de Commerce de GRENOBLE) notwithstanding plurality of defendants or third-party appeals (appel en garantie).

The following provisions of Article 25 apply exclusively to the Consumer Client.

These GT are in any event subject to French law both for rules of form and of substance.

ANY DISPUTE ARISING FROM THE EXECUTION OR INTERPRETATION OF THE PROVISIONS OF THESE GT OBLIGES THE PARTIES TO COME TOGETHER AND ATTEMPT TO FIND AN AMICABLE SOLUTION TO THEIR DISPUTE, BEFORE SEIZING THE COMPETENT COURT.

THE USER ACKNOWLEDGES AND ACCEPTS THAT ONLY FRENCH COURTS SHALL BE COMPETENT, IN APPLICATION OF THE RULES ENACTED BY THE FRENCH CODE OF CIVIL PROCEDURE.

IN ACCORDANCE WITH ARTICLES L.616-1 AND R.616-1 OF THE CONSUMER CODE, NVEIL HAS SET UP A CONSUMER MEDIATION SYSTEM.

THE MEDIATION ENTITY RETAINED IS: CM2C (Centre de la médiation de la consommation de conciliateurs de justice)

IN THE EVENT OF A LITIGATION, THE CONSUMER CLIENT MAY FILE THEIR COMPLAINT BY POST BY WRITING TO: CM2C 49 rue de Ponthieu, 75008 Paris

THE MEDIATOR, BY MAKING KNOWN TO THE PARTIES THE SOLUTION THEY PROPOSE, REMINDS THEM, BY SIMPLE MAIL OR BY ELECTRONIC MEANS:

  • THAT THEY ARE FREE TO ACCEPT OR REFUSE THE PROPOSED SOLUTION;
  • THAT PARTICIPATION IN MEDIATION DOES NOT EXCLUDE THE POSSIBILITY OF RECOURSE BEFORE A COURT;
  • THAT THE SOLUTION MAY BE DIFFERENT FROM THE DECISION THAT WOULD BE RENDERED BY A JUDGE.

THE MEDIATOR ALSO SPECIFIES WHAT ARE THE LEGAL EFFECTS OF THE ACCEPTANCE OF THE PROPOSED SOLUTION AND SETS A DEADLINE FOR ACCEPTANCE OR REFUSAL THEREOF.

ANNEX 1 – WITHDRAWAL FORM

The provisions of this Annex apply only to the Consumer Client.

This form must be completed and returned only if the User wishes to withdraw from the subscription to a Subscription to the Software.

To the attention of NVEIL

  • Order of: ………………………………………………….. (Date)
  • Order number: …………………………………………………..
  • Name of the User: ……………………………………………………
  • Address of the User: …………………………………………………….

Signature of the User:

(Date and Signature)