EntropySoft SAS is a French corporation having a place of business at 10, rue d'Uzès, 75002 Paris, France, registered with the Commercial and Corporate Registry of Nanterre under the number 481 141 083 (“EntropySoft”)
NOTICE: BY DOWNLOADING AND INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU (“the Client”) AGREE TO BE BOUND BY THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT ("SLA") AND BY THE SPECIFIC CONDITIONS OF THE ORDER FORM, IF YOU DO NOT AGREE TO THE TERMS OF THIS SLA AND WITH THE SPECIFIC CONDITIONS OF THE ORDER FORM, YOU MAY NOT DOWNLOAD, INSTALL, COPY OR USE THE SOFTWARE. "YOU" MEANS THE NATURAL PERSON OR THE ENTITY THAT IS AGREEING TO BE BOUND BY THIS SLA, THEIR EMPLOYEES AND THIRD PARTY CONTRACTORS THAT PROVIDE SERVICES TO YOU. YOU SHALL BE LIABLE FOR ANY FAILURE BY SUCH EMPLOYEES AND THIRD PARTY CONTRACTORS TO COMPLY WITH THE TERMS OF THIS AGREEMENT AND WITH THE SPECIFIC CONDITIONS OF THE ORDER FORM.
ARTICLE 1 - DEFINITIONS
«Confidential Information» shall mean any information communicated (whether in writing, orally or by any other means, directly or indirectly) by EntropySoft or the Integration Partner to the Client before or after the Effective Date, including, without restriction, the information relative to the Software or products, software programs, operations, procedures, plans, know-how, inventions, and proprietary technology of EntropySoft.
«Contract» shall mean this Software Licensing Agreement, including the Order Form.
«Documentation» shall mean the operational description of the Software which is delivered with the Software (Technical Documentation file), including technical prerequisites to the installation and instructions to use the Software.
«Effective Date» shall mean the date that the Client or the Integration Partner downloads, installs or uses the Software.
«Error» means a material failure of the Software to conform as described in the applicable User Documentation, which failure (a) is demonstrable in the environment for which the Software were designed and (b) can be reproduced by EntropySoft and (c) causes the Software to be inoperable, to operate improperly in the environment for which they were designed, or produces results different from those described in the applicable User Documentation. Failures resulting from Integration Partner or Client's negligence or improper use of the Software, modifications or damage to the Software by Integration Partner or Client, and Integration Partner or Client's use of the Software on third-party hardware of software not identified and certified to Integration Partner or Client as compatible by EntropySoft, are not considered Errors.
«Error Correction» means either a modification or addition that, when made or added to the Software, brings the Software into substantial conformity with its User Documentation or a procedure or routine that, when observed in the regular operation of the Software, avoids the practical adverse effect of such nonconformity.
«Integration Partner» shall mean the services company taking the Order Form from the Client pursuant to the terms and conditions set forth in the Partner Program.
«License» shall mean the rights to use the Software and receive the related Maintenance services subscribed to by the Client for the Permitted Purpose and within Customer's licensed Capacity limits set forth in the Order Form.
«Maintenance» shall mean the corrective and improvement maintenance services provided by EntropySoft to the Client in the License framework.
«Migration Package» shall mean the use of EntropySoft products to the extent detailed in the Order Form or in the Partner Program documentation, confirmed by EntropySoft approval and subject to a subscription fee paid to EntropySoft (the “Subscription Fee”).
«Minor Functional Improvements» shall mean a Sub-version of the Software regrouping the corrections to a given number of Anomalies, and including specific minor evolutions or improvements to the Software. The definition of Minor Functional Improvements shall be made by EntropySoft.
«Order Form» means the order form sent to the Client by the Integration Partner or EntropySoft including the details of the migration package and the Subscription Fee.
«Partner Program» means a program promoted by an EntropySoft Partner which includes the use of EntropySoft products.
«Patch» shall mean the delivery of one or several software components that correct one or several Errors.
«Permitted Purpose» shall mean the use of EntropySoft products to the extent detailed in the Order Form, confirmed by EntropySoft approval and subject to a subscription fee or perpetual license agreement
«Software» shall mean (i) the Software granted under the License to the Client by EntropySoft, exclusively in object code and according to the details appearing in the Order Form, and (ii) the Related Documentation.
«Updates» mean any bug fixes, patches or other revisions or changes to or modifications of the Software that are made generally available to EntropySoft’s customers as a part of Support and Maintenance. Updates do not include Upgrades, new features or major improvements in functionality. Updates are designated by a change in the version number to the right of the first decimal point.
«Upgrades» mean any new releases of the Software which would typically include some level of new functionality or features. Upgrades are designated by a change in the version number to the left of the first decimal point.
Updates and Upgrades will be provided to the Integration Partner or Client via the EntropySoft World Wide Web support site.
ARTICLE 2 - PURPOSE OF THE CONTRACT
The purpose of the Contract is to define the legal terms and conditions for the License subscribed by the Client with EntropySoft, and the respective undertakings and commitments of the Parties, including:
- a limited license for the use of the Software under the terms and conditions set forth in Article 4 and for the Permitted Purpose, as set forth in the Order Form;
- Maintenance relating to the Software.
ARTICLE 3 - DURATION
3.1 Initial Duration and Termination. The Contract shall become effective as of the Effective Date for a limited period of time, as indicated in the Order Form. The Contract shall be automatically terminated at the end of such period.
ARTICLE 4 - LICENSE CONCESSION
4.1 License Concession. Subject to the payment of the relevant fees, EntropySoft grants to the Client the individual and non-exclusive, non-transferable right to use the Software exclusively for the Permitted Purpose and within Customer's limited license, as set forth in the Order Form.
4.2. Restrictions. The Client’s rights to the Software are limited to those rights that have been expressly granted to it under Article 4.1 herein. EntropySoft reserves all other rights concerning the Software that have not been expressly granted to the Client under the Contract. Specifically, the Client is prohibited from:
a) Reproducing or copying the Software, with the exception of one (1) backup copy, which may be used only in the event where the original version has been damaged or destroyed,
b) selling, transferring, granting Sub-licenses or distributing in any way whatsoever the Software to third parties,
c) correcting, modifying, adapting or translating the Software,
d) providing the Software to any third parties or making its functions available to such under provision of any hosting services in the form of shared time access, or under provision of any similar services, and,
e) developing its own activation codes or attempting to bypass or causing the Software activation codes to fail to function.
4.4 Ownership of the Software. The Software and all intellectual property rights to the Software are and shall remain the exclusive property of EntropySoft. The Client shall reproduce the statements relating to EntropySoft’ intellectual property on any copy of the Software, and shall not change or remove or erase any such statements.
4.5 Source code. The Client shall not acquire any right to the source codes of the Software.The Client is prohibited from disassembling, decompiling or any reverse engineering of the Software, or attempting to access the source codes of the Software in any way whatsoever, or allowing any third parties to carry out such procedures.
ARTICLE 5 - SOFTWARE MAINTENANCE AND SUPPORT
5.1. First Level Support Obligations.
Integration Partners or EntropySoft as detailed in the Order Form shall provide all First Level Support for the Software to the Client with respect to the Software. “First Level Support” shall mean the following responsibilities:
• Interaction with Client regarding.
• Operation and Use of Software.
• Intake and Classification of errors regarding suspected Software Errors.
• Delivery to Client of any bug fixes, patches, Error Corrections, workarounds, new releases, updates and upgrades or other benefits of Second Level Support it may receive from EntropySoft.
• Integration Partner will identify for EntropySoft one point of contact, each a Trained Support Engineer (“TSE”) for managing all communications.
• Resolution of Maintenance and Support Client questions regarding the use and operation of the Software, including,
• Have qualified TSE review errors and determine if error is result of software or hardware other than Software
• If TSE determines that there is an error in Software, having TSE submit a detailed description of the error to EntropySoft sufficient for EntropySoft to reproduce the error, or if TSE is not able to replicate the error, TSE will provide any additional information required by EntropySoft, including, if possible, remote access to Maintenance and Support Client’s computer system
• Making technical staff available to EntropySoft for problem identification and resolution.
• Provide Resolution of Software errors not requiring access to Software code.
5.2. Second Level Support Obligations.
In consideration of the payment of the fees, EntropySoft shall provide Second Level Support for the Software to the Integration Partner. “Second Level Support” shall mean the following responsibilities:
• Updates & Upgrades will be provided directly to the Integration Partner.
• Resolution of errors in the Software or Documentation (“Errors”) for the Integration Partner in accordance with EntropySoft’s Support Procedures summarized below.
• EntropySoft will identify a primary point of contact at EntropySoft for managing all support communications, and an escalation point of contact for escalating any issues related to support or maintenance services.
• EntropySoft will not be obligated to interact directly with the Client
5.3. SUPPORT AND MAINTENANCE SERVICES
5.3.1 Error Correction/Call Priorities
Call priorities are established consistent with the level of urgency or impact on the Clients business.
Priority Class A: Concerns a less important defect, such as either a partial loss of functionality, or a loss of already saved data. EntropySoft will begin to work on the problem within 8 hours and will offer either a workaround or a fix for the defect within four (4) working days.
Priority Class B: Concerns a fix that is required for a problem that does not entail either a loss of functionality, or a loss of data. EntropySoft will contact the Integration Partner, within seven (7) working days, to confirm whether the defect will be corrected, or not, and of the likely timescale for the fix. The potential fix will be included either in a patch, or in the next Major or Minor Version of the product.
All response times for Priority A and B are based on EntropySoft’s standard support hours from 9.00 to 12.30 and from 13.30 to 18.00, Paris time, on business days, Monday to Friday.
If EntropySoft is unable to correct the Error(s) as described above for Priority A Errors, within 4 days from the time of EntropySoft’s initial response as applicable, EntropySoft will provide the Integration Partner with the then-existing diagnosis of the problem and outline EntropySoft’s then existing plan and timetable for resolving the Error.
5.3.2 Integration Partner Responsibilities. The Integration Partner agrees to notify EntropySoft in writing or by phone promptly following the discovery of any Error. Further, upon discovery of an Error, the Integration Partner agrees to submit to EntropySoft a listing of output and any other data that EntropySoft may require in order to reproduce the Error and the operating conditions under which the Error occurred or was discovered.
5.3.3 Telephone Support. EntropySoft will provide the Integration Partner with a telephone answering service during normal office hours (Monday till Friday, from 9.00 to 12.30 and from 13.30 to 18.00 (Paris time)) to answer stringent technical problems. Outside the normal office hours, the Integration Partner may leave a message either on an EntropySoft telephone answering machine, an EntropySoft fax number or on the EntropySoft Website for a response by EntropySoft during its normal office hours.
5.3.4 Supportflow. Integration Partner is entitled to access an online support service located at EntropySoft support site (http://support.entropysoft.net).
5.3.5 Exclusions from Maintenance. Maintenance Services under these Support and Maintenance Terms do not include, system administration training, operations training, network management setup for the Products, travel and living expenses for installation and training, file conversion costs, optional products and services, directories, consulting services, shipping charges, or the costs of any recommended hardware.
These Support and Maintenance Terms also do not cover support or maintenance services for any failure or defect in the Products caused by any of the following:
(a) the improper use, alteration, or damage of the Products by Integration Partners or persons other than EntropySoft employees;
(b) modifications to the Products not made or authorized by EntropySoft;
(c) software other than the Products;
(d) application interfacing between the Products and other software that has not be approved or certified by EntropySoft as being compatible with the Products; and
(e) use of Products with hardware, or third party software that has not been approved and certified by EntropySoft.
5.4. Updates and Upgrades
5.4.1 Updates/Upgrades. During the duration of the License as indicated in the Order Form, EntropySoft shall provide Integration Partners with Updates and Upgrades of the Software for the Client at such time as such updates and upgrades are made generally available by EntropySoft to its customers of the Software.
5.4.2 Update Support Policy. EntropySoft will support the current and immediately precedent Upgrade.
ARTICLE 6 - AUDIT
Subject to compliance with a notice period of at least seven (7) days, EntropySoft may carry out one audit on the premises of the Client with the staff of the Client, during business hours, in order to verify that the use of the Software by the Client is in conformity with the terms and conditions of the Contract and in particular with the Order Form.
These audits shall be made at EntropySoft’ expense, except where the results of such audits demonstrate that the Client has not complied with its obligations under the Contract. In such case, the Client shall reimburse EntropySoft for all costs incurred by EntropySoft during the audit, upon presentation of EntropySoft’ invoice, and without prejudice to any damages and interest that may be claimed by EntropySoft.
ARTICLE 7 - WARRANTY
7.1 Warranty. EntropySoft hereby guarantees the Client that, for a period of thirty (30) days from the Effective Date, the Software shall operate in conformity with the Documentation. The Client shall present any claim under this Warranty to EntropySoft during this period of thirty (30) days.
7.2 Exclusive Recourse. Under this Warranty, EntropySoft may choose, at its own expense, to offer to the Client any one of the following forms of recourse, to the exclusion of any other:
a) Immediate replacement or correction of all defective Software or support, or
b) provision to the Client of a reasonable procedure allowing it to bypass the Error, or
c) if EntropySoft is unable to provide one or the other of these solutions, to reimburse the Client up to the fees received by EntropySoft for the project where the problem occurred, provided that the Integration Partner return such defective Software to EntropySoft during the above-cited Warranty period
7.3 Exclusions. The above Warranty excludes the following:
a) if the Software is granted under a Test or Demonstration license, or
b) if the Software is used in conjunction with materials or software other than those established in the Documentation, or
c) if, after claims based on an Error, the Client refuses to install the most recent sub-version of the Software corresponding to the version installed with the Client.
In addition, to the extent authorized under applicable law, EntropySoft excludes any Warranty relating to the Software, including but not limited to, any form of Warranty relating to the conformity of the Software, its intrinsic characteristics, its performance exempt from errors or uninterrupted, or concerning the adequacy of the Software for a specific Client use or its compatibility with any other product or software.
ARTICLE 8 - LIMITATION OF LIABILITY
8.1 Excluded Damages. EntropySoft shall not under any circumstances be held liable under the Contract for indirect or immaterial damages such as, but not limited to, loss of profits, losses, inaccuracy or corruption of files or data, commercial harm, loss of turnover or profits, loss of clientele, loss of business opportunity.
8.2 Liability Cap. In any event, the total financial liability of EntropySoft in the context of each License period, all damages included, is limited to the reimbursement of the amount of the fees
ARTICLE 9 - FORCE MAJEURE (ACTS OF GOD)
9.1 Definition of Force Majeure. The following are considered events of Force Majeure under the terms of the Contract: any event (i) whose consequences, even if foreseen by EntropySoft, could not have been prevented, and (ii) when EntropySoft has taken all measures normally required of any diligent professional in order to avoid such taking place (« Force Majeure»). Such events of Force Majeure include, but are not limited to, the following: action by the Client, government action, fire, flood, epidemic, quarantine, energy crises, strikes, corporate difficulties, war, acts of terrorism, riots, accidents or shortages.
9.2 Effects of Force Majeure. EntropySoft cannot be held liable with regard to the Client in the event where the performance of its obligations is delayed, restricted or made impossible due to the occurrence of a case of Force Majeure. In the event where EntropySoft suffers a Force Majeure event, the performance of its obligations shall be suspended. If the case of Force Majeure extends beyond one (1) month, the Parties may in good faith negotiate the termination of the Contract.
ARTICLE 10 - CONFIDENTIALITY
Except with the prior written consent of EntropySoft, the Client undertakes in its own name and on behalf of its agents, for the duration of the Contract and after its termination, not (i) to use the Confidential Information except for the purposes of the performance of its obligations in conformity with the Contract or (ii) to disclose the Confidential Information to any person other than the salaried employees of the Client.
ARTICLE 11 - TERMINATION
11.1 Termination for misconduct. EntropySoft reserves the right to terminate the Contract immediately and automatically, without the need for intervention by the courts, in the event of failure by the Client to fulfill any of its material obligations under the Contract, if such failure is not remedied by the Client within ten (10) days from the date of receipt of the written notice.
11.2 Consequences of the termination of the Contract. In the event of termination by EntropySoft due to the Client’s misconduct or gross negligence, EntropySoft, without prejudice to any other damages and interest it may claim, shall have the right to keep the amount of fees due and paid for the period covering the time from the date of such termination to the end of the ongoing contractual period.
ARTICLE 12 - MISCELLANEOUS
12.1 Sale or Transfer. The Client may not sell or transfer the Contract.
12.2 Indivisibility. In the event where any of the stipulations of the Contract shall be found null and void, illegal or unenforceable, the validity, legality or enforceability of the remaining stipulations shall not in any manner be reduced or diluted. The Parties hereby accept and agree to attempt to limit the extent of such invalidity or unenforceability and to maintain the financial fairness of the Contract to the extent possible.
12.3 Failure to Exercise a Right. Failure to exercise, or delay in exercising, any right or prerogative held by any of the Parties in the context of the Contract shall not be considered as such Party having waived any such right or prerogative for the benefit of the other Party. Any such waiver cannot be effective unless such is stipulated in writing and signed by a legal representative of each of the Parties.
12.4 Notifications. Any notification made under the Contract by one of the Parties to the other Party shall be made in writing and delivered by hand or sent by registered letter or E-mail, with acknowledgement receipt requested, or by express courier outside of France, correctly labeled and sent to the address of the other Party. The notifications (i) delivered by hand shall be considered as having been made at the time of their delivery, (ii) made by registered letter or E-mail with acknowledgement receipt requested shall be considered as having been made at the time of their initial presentation, and (iii) sent by express courier shall be considered as having been made at the time of their delivery. Each Party may change its address by sending notice of such to the other Party.
12.5 Integrality of the Contract. The Contract represents the entirety of the exclusive agreement between the Parties for the purposes set forth herein, and shall take precedence over all other prior or simultaneous written or oral agreements and contracts concerning the same purpose.
ARTICLE 13 - APPLICABLE LAW AND RELEVANT JURISDICTION
The Contract is governed by and interpreted under the French law. Any dispute or lawsuit arising in connection with the Contract shall be submitted to the exclusive jurisdiction of the Courts of Paris, notwithstanding the multiple natures and number of defendants or any invoking of the Warranty
