PROVISION OF SERVICES
During the Term, Customer may access and use the Services, on the basis of a number of subscriptions defined in the Order Form.
Subscriptions may be added during the Term at the same fees as indicated in the Order Form, prorated if applicable for the portion of that subscription term remaining at the time the subscriptions are added. Any added subscriptions will terminate on the same date as the underlying subscriptions.
Customer acknowledges that its subscriptions are not contingent on the delivery of any future functionality or features relating to the Services, or dependent on any oral or written public comments made by Provider regarding future functionality or features relating to the Services.
From time to time, Provider may make, at its sole discretion, Pilot and Beta Services available to Customer at no charge. Customer may choose to try such Pilot and Beta Services or not in its sole discretion. Pilot and Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Pilot and Beta Services are not considered “Services” under this Agreement. However, this Agreement shall apply by reference to the use of Pilot and Beta Services. Unless otherwise stated, any Pilot and Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Pilot and Beta Services becomes generally available without the applicable Pilot and Beta Services designation. Provider may discontinue Pilot and Beta Services at any time in its sole discretion and may never make them generally available. Provider will have no liability for any harm or damage arising out of or in connection with a Pilot and Beta Service.

RESTRICTIONS ON USE
The use of the Services shall be restricted as follows:
Customer shall not grant access to the Services or make the Services otherwise available to individuals outside its organization.
Customer shall not grant access to the Services to a number of users exceeding the number of subscriptions defined in the Order Form.
A user’s password shall not be shared with any other individual. 
A user’s identification may only be reassigned to a new individual replacing one who will no longer use the Service.
Customer shall not (i) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit, (ii) attempt to gain unauthorized access to any Service or its related systems or networks, (iii) use any of the Services to access or use any of Provider’s intellectual property except as permitted under this Agreement and an Order Form, (iv) copy a Service or any part, feature, function or user interface thereof, (v) frame or mirror any part of any Service, other than framing on its own intranets or otherwise for its own internal business purposes, (vi) access any Service in order to build a competitive product or service, or (vii) reverse engineer any Service (to the extent such restriction is permitted by law).
Customer shall not use a Service or a Service component in a way which threaten the security, integrity or availability of Provider’s products or services; Customer shall in particular not use a Service or a Service component in particular to (i) store or transmit infringing, libelous, or otherwise unlawful or tortious material, (ii) store or transmit material in violation of third-party privacy rights, (iii) store or transmit malicious code, (iv) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein.
Customer shall notify Provider promptly if Customer is aware of any non-compliance with the restriction on use of the Services. 

THIRD PARTY APPLICATIONS
The Services may comprise third party applications. Terms of use of third party vendors are reserved. Provider does not endorse such third-party applications and in no event shall Provider be responsible or liable for any applications of such third-parties.
Customer acknowledges that the Services may contain features designed to interoperate with third party applications. To use such features, Customer may be required to obtain access to such third-party applications from their vendors, and may be required to grant Provider access to Customer’s account(s) on such third-party applications. Provider cannot guarantee the continued availability of such Service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a third-party application ceases to make the third-party application available for interoperation with the corresponding Service features in a manner acceptable to Provider.

PROVISION OF SUPPORT & MAINTENANCE SERVICES
During the Term, Provider shall use commercially reasonable efforts to provide Customer with S&M Services.
S&M Services relating to third party applications supplied by Provider, for instance as part of the Services, are limited to the delivery of updated or upgraded versions of the third-party applications to the extent and under the conditions such versions are made available by the third-party.

EXCLUDED S&M SERVICES
S&M Services do not include in particular any of the following: 
Assistance in developing user-specific customizations. 
Assistance with products, services or technologies provided by third parties, including but not limited to implementation, administration or use of third-party systems. 
Content management services. 
Provision of major updates and upgrades.
In the event Provider and Customer agree on the provision by Provider of any of the services listed in Section 4.1 above, the terms of this Agreement will apply by reference, unless otherwise agreed in writing between the parties.

S&M SERVICE LEVELS
Services relating to the implementation of the Platform or the Services
The terms governing the S&M Services relating to the implementation of the Platform or the Services shall be specified in the Order Form.
Other S&M Services 
Provider shall use commercially reasonable efforts to make the S&M Services available from Monday to Friday during office hours (8am to 5.30pm French time), except for French public holidays and for planned downtime (of which Provider shall give advance electronic notice).
IT Users may submit their request for S&M Services either by sending an email to the Provider at Provider’s support and maintenance email address or by calling the Provider support and maintenance line. 
DATA MANAGEMENT AND SECURITY
Customer possesses and retains all right, title, and interest in and to Customer Data, and Provider use and possession thereof is solely on Customer’s behalf. Customer may access and copy any Customer Data in Provider’s possession at any time, and Provider shall reasonably facilitate such access and copying promptly after Customer’s request.
Unless it receives Customer’s prior written notice, Provider: (i) shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the S&M Services; (ii) shall not give any of its employees access to Customer Data except to the extent that such individual needs access to facilitate performance under this Agreement and is subject to reasonable written nondisclosure agreement with Provider protecting such data, with terms reasonably consistent with those of this Section; and (iii) shall not give any third-party access to Customer Data, including without limitation Provider’s other customers, except subcontractors subject to provisions of this Section. Notwithstanding the foregoing, Provider may disclose Customer Data as required by applicable law or by proper legal or governmental authority.
Provider shall not permit any subcontractor to access Customer Data unless such subcontractor is subject to a written contract with Provider protecting the data, with terms reasonably consistent with those of this Section. Provider shall exercise reasonable efforts to ensure that each subcontractor complies with all of the terms of this Agreement related to Customer Data.
Provider shall exercise commercially reasonable efforts to prevent unauthorized exposure or disclosure of Customer Data. In addition, and without limiting the generality of the preceding sentence, Provider shall implement and maintain a program (comprising administrative, physical, and technical safeguards) for managing unauthorized disclosure or exposure of Customer Data stored by or accessible through the S&M Services. In the event of a data breach, or in the event that Provider suspects a data breach, Provider shall (i) promptly notify Customer by telephone and (ii) cooperate with Customer and law enforcement agencies, where applicable, to investigate and resolve the data breach, including without limitation by providing reasonable assistance to Customer in notifying injured third parties. Provider shall give Customer prompt access to such records related to a data breach as Customer may reasonably request; provided such records shall be Provider’s confidential information, and Provider shall not be required to provide Customer with records belonging to, or compromising the security of, its other customers. The provisions of this Section do not limit Customer’s other rights or remedies, if any, resulting from a data breach.
Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement (Article 12), Provider will make Customer Data available to Customer for export or download. After such 30-day period, Provider will have no obligation to maintain or provide any Customer Data, and will thereafter delete or destroy all copies of Customer Data in Provider’s systems or otherwise in Provider’s possession or control, unless legally prohibited.

FEES AND PAYMENT
In consideration of the provision of Services, Customer shall pay all fees indicated in the Order Form, it being specified that (i) fees are based on the number of subscriptions defined in the Order Form and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of subscriptions defined in the Order Form cannot be decreased during the Term.
It is specified that billing will be annually. 
In case of renewal of the subscription of the Services based on one-time priced subscriptions, Provider’s list price in effect at the time of the renewal shall apply.
Provider shall invoice Customer in advance and otherwise in accordance with the Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Provider and notifying Provider of any changes to such information.
If any invoiced amount is not received by Provider by the due date, then without limiting Provider rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
If any amount owing by Customer under this or any other agreement for Provider’s products or services is 30 or more days overdue, Provider may, without limiting Provider other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Provider’s products or services to Customer until such amounts are paid in full. Provider will give Customer at least 10 days’ prior notice that Customer’s account is overdue before suspending products or services to Customer.
Payment Disputes. Within a maximum of 30 days and provided that the Customer sends to Provider a written and detailed notification, Provider will not exercise its rights under Section 10.5 or 10.6 above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

PROPRIETARY RIGHTS AND LICENSES
Subject to the limited rights expressly granted hereunder, Provider and its licensors and content providers reserve all of their right, title and interest in and to the Services, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
Customer grants Provider, its Affiliates and contractors a worldwide, limited-term license to host, copy, transmit and display Customer Data created by or for Customer using a Service or for use by Customer with the Services, as reasonably necessary for Provider to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, Provider acquires no right, title or interest from Customer or its licensors under this Agreement in or to any of Customer Data.


CONFIDENTIALITY
The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither Party will disclose the terms of this Agreement or any Order Form to any third-party other than its Affiliates, legal counsel and accountants without the other Party’s prior written consent, provided that a Party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section. Notwithstanding the foregoing, Provider may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or third-party application provider to the extent necessary to perform its obligations to Customer under this Agreement, under terms of confidentiality materially as protective as set forth herein.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
Provider represents and warrants that all services will be performed in a professional and workmanlike manner. Provider does not warrant that it will be able to correct all types of errors.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT, PILOT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, (I) EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS, AND (II) PROVIDER HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

LIABILITY
General Principles. Without prejudice to the limitations of liability set forth in this Section, either Party seeking compensation for damages from the other Party is required to provide evidence that:
a loss or damage has been suffered; and
there is natural and adequate causal link between (i) the breach of obligations under this Agreement, and (ii) the damage or loss suffered.
The parties shall not refuse to discharge their financial obligations under this Agreement by offsetting such obligations against any claims for damages, unless such claims have been recognized by a competent court in accordance with this Agreement.
Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. 
Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

TERM AND TERMINATION
This Agreement shall enter into force upon its signature by both Parties and remain in force during the Term. 
In case no Term is specified in the Order Form, either Party may terminate this Agreement upon 30 days prior written notice of termination. 

JURISDICTION AND GOVERNING LAW
The parties consent to the personal and exclusive jurisdiction of the courts of Bayonne. 
This Agreement are governed solely by the internal laws of France, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights and duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws.

MISCELLEANOUS
Notices. Any notice under this Agreement or related to Provider’s services should be addressed to: ELQANO, 3 rue Chinchoenia – 64700 Hendaye (France). All notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the third business day after mailing, or (c), on the day of sending by email. All notices to Customer will be addressed to the relevant billing contact designated by Customer.
Force majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by a Disaster, or other causes beyond the performing Party’s reasonable control. The Parties expressly agree to refer to the definition of force majeure in article 1218 of the Civil Code.
Anti-Corruption. Each Party, pursuant to the anti-money laundering regulations, declares that: (i) the origin of the funds paid by the Customer in return for his payment obligation is lawful and does not stem from any activity contrary to the law applicable to him, in particular the provisions of Article L. 562-2 of the monetary and financial code ; (ii) it has not facilitated the false justification of the origin of the property or income of the perpetrator of a crime or offense which has given him a direct or indirect profit, or a contribution to an operation placement, concealment or conversion of the direct or indirect proceeds of a crime or offense.
Entire Agreement. This Agreement is the entire agreement between Customer and Provider regarding Customer use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the Party against whom the modification, amendment or waiver is to be asserted.
Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, either Party may assign this Agreement in its entirety (together with all Order Forms), without the other Party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
Waiver. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.