Terms & Conditions
GENERAL TERMS AND CONDITIONS OF SUBSCRIPTION TO THE XPERTEYE SOFTWARE
I - GENERAL PROVISIONS
These General Terms and Conditions (hereafter “Terms and Conditions”) determine the conditions applicable to the subscription and use under License, by a Customer and its Users, of the remote assistance XpertEye Software edited by AMA.
Any use made of the Software implies the unconditional acceptance of these General Terms and Conditions. The applicable General Terms and Conditions shall be those in force at the time the order is placed.
The fact that AMA does not avail itself of a prerogative recognised by these Terms and Conditions shall not be construed as amounting to a waiver of the right to rely upon the same on a future occasion. Any order placed by the Customer entails the latter’s unconditional and unrestricted adherence to the prices and General Terms and Conditions.
Each provision of the Terms and Conditions will be applied to the extent permitted by law, and the invalidity, in whole or in part, of any clause shall not affect the rest of the clause and the Agreement as a whole. In such circumstances, the Parties agree to substitute any invalid provision with a new, valid provision that reflects their initial intention.
II - DEFINITIONS
Each time they are used within these terms and conditions, the following terms will be defined as follows:
2.1. Affiliated Companies – companies in which one of the Parties directly or indirectly (i) holds more than half of the voting rights; or (ii) can appoint or recall more than half of the members of the administrative, management or supervisory body or of the bodies appointed for lgal representation; or (iii) has the right to conduct the business of the company. Affiliated Companies are no Third Parties within the meaning of this Agreement.
2.2. Customer – means natural or legal entity acting in the context of its professional activity and having subscribed to the Terms and Conditions with AMA.
2.3. License – designates the right to use the Software, most specifically the XpertEye Software.
2.4. Third Party – means legal or natural person other than the Parties to the Agreement, AMA and Customer, or Users.
2.5. Users – means natural and legal entity using the Software acting on behalf of Customer or duly authorised by Customer and/or AMA to use the Software under the present Terms and Conditions subscribed to by Customer. Comprehends Affiliated Companies.
2.6. Web Site – means Internet web site accessible at the address given during the deployment of the Software and enabling a secured access to the Software, to be distinguished from the website where the software is purchased.
2.7. XpertEye Software or Software – means the Software packages published by and owned by AMA CORPORATION PLC (AMA Group), in the version described in the License. Designates all versions of the XpertEye Software, as well as all documentation enabling the good functioning of the Software, whether they are embarqued on equipment or available through the Web site. The Software enables text, images and sound capturing through videos, in particular the live interaction and transmission of contents between Users.
III - APPLICABLE LAW - ATTRIBUTION OF JURISDICTION
3.1. Any questions regarding the present Terms and Conditions, together with any Agreements they cover, will be governed by and construed in accordance with French laws.
3.2. In the event of a dispute, any disagreement relating to these Terms and Conditions, and the Agreements they cover, the sole competent court is the French court having jurisdiction in the place where AMA has its registered head office, even in the case of emergency procedures, introduction of Third Parties, incidental claims or plurality of defendants.
3.3. In addition, in the event of a dispute with a Customer who is not a member of the European Union, the disagreement may also be settled, at the request of AMA , through arbitration before an arbitral tribunal made up of three arbitrators, with each Party designating an arbitrator and the third arbitrator nominated by the two aforementioned arbitrators. The arbitration shall take place in Paris in the French language and will be judged in accordance with French law. The arbitrator's decision is final and is not subject to appeal.
IV – TERMS AND CONDITIONS OF LICENSE TO USE THE XPERTEYE SOFTWARE
4.1 – ORDERS
Any order placed on the AMA website constitutes a firm commitment between the Customer and AMA, after full payment of the price.
Any modifications submitted by AMA at the time of confirming the order, formulated by the confirmation e-mail received by the Customer,will be deemed accepted in all their terms unless Customer objects to them in writing within three (3) working days from the date of their communication. No orders may be cancelled and/or transferred without the agreement of AMA.
4.2 – PRICING
4.2.1. The price for the License is the one indicated on the AMA website when the order is placed. Prices are indicated in Euros, quoted net and do not include taxes. Any provision of service that is not mentioned in the joint bid is excluded from the price aforementioned and shall be invoiced separatly. AMA undertakes to provide the Customer the necessary secure means of payment.
4.2.2. Payment information
Any modification of the Client’s payment information as related to the order of the Software must be reported to AMA as soon as possible in order to ensure continuity of service.4.2.3 If payment is not received, all access to the Software, if it has already been made available, will be automatically cut off until the dispute is resolved.
4.2.4 The Customer will receive the invoice within 48 hours from the "start date" (def. in 4.3.2).
4.3 – TERMS OF PROVISION OF THE SOFTWARE
In order to use the XpertEye Software, Customer must ensure for its Users, at its own cost, that the configuration of its computer equipment is suitable and compatible.
To this end, and within 24 hours (Fr working days) from reception of the order, a project manager from AMA will contact the Customer in order to provide access to the Software. This appointment will constitute the " Start Date " of the License The usernames and passwords allocated to Customer and its Users are confidential. In any event, Customer is responsible for itself and its Users for the use of the usernames and passwords allocated or generated and undertakes to ensure compliance with the provisions of thse Terms and Conditions by the Users. Users must immediately inform Customer of any fraudulent use of the Software of which it may be aware, Customer must in its turn immediately inform AMA of such.
In particular, the User must (i) ensure that it does not communicate its codes to Third Parties; (ii) secure communication of its codes and data storage in such a way as to prevent hacking or distribution of the said codes to Third Parties.
4.3.3Term of Agreement. The License is granted for a firm and fixed term of 12 (twelve) months from the Start Date. Early termination will only be accepted in case of failure by AMA to comply with its legal and/or contractual obligations, resulting in the reimbursement of the amounts paid for the unused months of the License.
4.4 – SCOPE OF RIGHTS OF USE GRANTED
4.4.1. By subscribing to the Terms and Conditions, AMA grants Customer the non-exclusive, non-transferable and personal right to use the Software and its documentation, with the exception of the access to source codes that is:
- solely for the personal and internal needs of Customer and its Users;
- solely for Users;
- for the equipment and configuration described in the user manual of the Software;
4.4.2. Each User shall use the XpertEye Software in accordance with the corresponding terms and conditions of use, accessible via the Software
4.4.3., The Customer and its Users are prohibited from engaging in any type of use not expressly authorized by the Terms and Conditions, in particular:
- making copies for backup, except for archiving purposes;
- correcting or having a Third Party correct any errors and/or bugs in the XpertEye Software;
- to distribute the software and/or its documentation by any means to third parties;
- decompiling the XpertEye Software, even for the purposes of interoperability,;
- translating, adapting, arranging or modifying the XpertEye Software with a view to creating functions, whether derived or new, of derivative or new Software;
- carrying out research using the XpertEye Software for the purposes of creating derivative or competing products.
4.4.4. Each Customer undertakes for itself and its Users to allow representatives or any other agents of AMA to ensure that the XpertEye Software is being used in accordance with the clauses and terms of these Terms and Conditions and Special Terms and Conditions.
4.4.5. In the case of non-fulfilment by Customer and/or User of any of its obligations under these Terms and Conditions due to other contractual stipulations it has been assigned, its corresponding rights of use may be immediately and automatically suspended and/or terminated by simple notice, without prejudice to any claim by AMA for damages.
4.5 – PROPERTY
These Terms and Conditions and the License that they govern do not confer any title or rights of property to the XpertEye Software and its documentation on Customer and Users. These remain the exclusive property of AMA, regardless of the format, computer language, Software medium and language used.
Consequently, Customer and Users are prohibited from engaging in any acts liable to compromise this right of property.
4.6 – SOFTWARE RESPONSIBILITIES OF AMA
4.6.1. Under no circumstances shall AMA be held responsible for the contamination of Customer’s and/or Users' files with a virus, nor for any damaging consequences arising from this contamination.
4.6.2. AMA cannot be held responsible for damages resulting from:
- the failure of Customer and/or its Users to carry out their obligations or at all under these Terms and Conditions;
- the misuse of the XpertEye Software by Customer and/or its Users;
- the malfunctioning of the XpertEye Software which:
- is caused by modifications made to the XpertEye Software and/or softwares by Customer and/or its Users and/or any Third Party not approved by AMA;
- comes as a result of Customer’s refusal to carry out corrections, revisions and/or updates and/or workaround, including outside of the maintenance agreement, relating to the XpertEye Software package to resolve malfunctions or prevent them from occurring;
- is not attributable to the XpertEye
4.6.3. Furthermore, AMA cannot be held responsible for:
- the economic efficiency of the XpertEye Software;
- any damages caused to goods not part of the XpertEyeSoftware;
- the suitability of the XpertEeye Software to the needs of Customer and its Users, which is the responsibility of Customer;
- any loss or damage to information, files or databases or any other element that Customer and its Users undertake to protect;
- any contamination of Customer’s opr Users’ files with a virus and any damaging consequences arising from this contamination.
4.6.4. AMA is not liable for any unforeseeable damages or indirect and/or non-material damages, such as loss of earnings, financial or commercial damage, loss of customers, loss of orders, non-material or personal damages arising as a result of the use of the XpertEye Software
4.6.5. AMA cannot be held responsible in cases of force majeure as set out hereunder.
4.6.6. The granting of a License shall under no circumstances imply the involvement of AMA in any acts of Customer and/or User, AMA intervening only as a technology provider.
4.6.7. Subcontracting. AMA may subcontract all or part of the videoconferencing services hereunder, provided, however, that AMA retains responsibility for such contracting to the extent otherwise provided under this Agreement.
4.7 – SOFTWARE RESPONSIBILITIES OF THE CUSTOMER
4.7.1. Customer is liable for the use of the XpertEye Software by its Users, and ensure that itself and its Users meet and comply with the Terms and Conditions.
4.7.2. Customer and its Users are solely liable for their use of the XpertEye Software, as well as the use and exploitation of their results.
4.7.3. The XpertEye Software shall be used under the sole direction, control and responsibility of Customer and Users. Customer and User take the entire responsibility for any damages caused to AMA, to its distribution partners, to its associated service providers and subcontractors, to other users of the Software and any other legal or natural person, consecutively to a breach on the user’s part to the terms and conitions of this License Agreement.
4.7.4. Customer, and Users it is liable for, are solely responsible for making regular backups of all data processed directly or indirectly using the XpertEye Software, as well as the use made of the data. Each user undertakes to use the XpertEye Software and any personal data gathered via the Software in a way fully compliant with personal data protection regulations, particularly to the European General Data Protection Regulation entered into force on 25 May 2018 and Data Protection Act 2018.
V – TERMS AND CONDITIONS FOR PROVISION OF SOFTWARE SERVICES (Maintenance, Support, Hosting)
5.1 – DURATION -TERMINATION
The services are effective from the date of subscription to the Software.
Provision of services to Customer shall terminate (if not earlier terminated for other reasons) upon termination of Customer’s right to use the Software.
5.2 - SCOPE OF SERVICES
Services carried out by AMA are specifically and exhaustively listed in the documentation made available on the website. AMA carries out the diagnosis of the reported issue on the XpertEye Software and then sets forth the correction. Namely:
5.2.1. Technical assistance service
The Software platforms of AMA are available 24/7.
Customer assistance service is available from 9:00am to 5:30pm (GMT+1), from Monday to Friday, working days.
Enabling to deal with any technical difficulty met by Customer or User as they are using the XpertEye Software at the earliest opportunity.
5.2.2. Update maintenance of the Programs:
AMA endeavors to carry out the Software’s updatings. All substantial functional modifications are also available to Customer.
Customer should ensure that its IT platform and operating system are conform to the minimum configuration required to the good functioning of the Software.
Customer remains solely liable for not carrying out the relayed updatings, and for the possible resulting issues.
Should an update be incompatible with the previous version, AMA commits to provide Customer with migration tools.
The General Terms and Conditions, part IV, regulate the use of an update provided by the maintenance service.
Maintenance also includes compliance with WEbRTC implementation.
5.2.3. AMA shall not implement corrections in the following cases:
- refusal of Customer ands/or User to collaborate with AMA in solving the defects, and in answering all information requests,
- using the Software in a way that is not compliant with its destination and/or Terms and Conditions,
- unauthorized modification of the Software by Customer, User and Third-Party,
- failure of Customer and/or User to fulfil its obligations.
- failure of networks, including the Internet.
- voluntary damage, malevolence and/or sabotage.
- deterioration due to Force Majeure or misuse of the Software.
5.3 – HOSTING
Unless otherwise specified in the Specific Terms and Conditions, AMA takes over and ensures hosting of the XpertEye Software and of all flows subject to approval and compliance to technical prerequesites mentioned in the License Terms and Conditions.
5.4 – APPLICATION PROGRAMMING INTERFACE
In case of API at the request of Customer with a software that is not developed by AMA, AMA disclaims liability for any malfunctioning of that software, or any malfunctionning caused to the Software by the API and/or by that interfaced software. Customer cannot terminate the Agreement with AMA due to the malfunctionning of the interfaced software.
5.5 – COOPERATION/INFORMATION
Customer undertakes to cooperate with AMA and/or its subcontractors and provide them with the information and/or documents necessary to the execution of services.
VI – FORCE MAJEURE
6.1. Force Majeure. To the extent AMA is unable to carry out any of its obligations due to a Force Majeure, such obligations shall be suspended during the continuance of such Force Majeure. The term "Force Majeure", as used herein, means any cause not reasonably within the control of AMA, and shall include the following: (i), fires and others meteorological events; (ii) interruption and/or curtailment of transportation and/or storage; (iii) failure of computer systems to operate properly or destruction or loss of electronic records or data; (iv) acts of others such as terrorist attacks, cyber-attacks, strikes, lockouts or other industrial disturbances, riots, sabotage, insurrections or wars; (v) interference with or disruption of AMA’s intended source of supply of Softwaret (or any component thereof) or interference with or disruption of AMA’s intended means of transportation for the delivery of the Sotware (or any component thereof); (vi) compliance with any law, statute, ordinance, regulation, policy; and (vii) any other event or contingency of like or different character beyond the reasonable control of AMA, that, in each case, interferes with the ability of AMA to perform its obligations hereunder.
6.2. Notice. If AMA’s performance is prevented by Force Majeure, it will provide notice to Customer. Initial notice may be given orally; however, written notice with reasonably full particulars of the event or occurrence is required as soon as reasonably possible. Delay or failure to give notice herein shall not prevent AMA from claiming its performance is excused by Force Majeure, except to the extent such delay or failure has adversely affected Customer.
6.3. Consequences. Upon providing notice of Force Majeure to Customer, AMA will be relieved of its obligations (including its obligations to make the XpertEye Software available), from the onset of the Force Majeure, to the extent and for the duration of the Force Majeure. For the duration of the Force Majeure, AMA may, in its sole discretion allocate its available supply of Sotwares among AMA’s existing or prospective customers (including AMA’s affiliates) and deliver to Customer only its allocation of such Software. The parties will be entitled to terminate the Agreement or other Transaction Document, as applicable, if the Force Majeure lasts for more than thirty (30) consecutive days.
VII – RESPONSIBILITIES OF THE PARTIES
Each Party is responsible for any direct damage that it and/or its subcontractors and/or Users cause to the other Party or to Third Parties as a result the performance of contracts. Subject to any contrary mandatory legal provision, it is expressly specified that AMA will be held only by an obligation of means and not of results. In any event, AMA will not be liable for unforeseeable damages, or for indirect and/or intangible damages such as, loss of profits, financial loss, commercial prejudice, loss of customers, loss of control, damages, moral or private, consecutive to its services. The responsibility of AMA cannot be engaged in case of force majeure.
Customer shall bear sole responsibility for the content and/or the form of the specifications and/or information that it will communicate to AMA for the execution of its order. Customer guarantees to have made all the required declarations and to obtain all the necessary authorizations according to the legal and regulatory provisions. Customer is solely responsible for the use of the Software by its Users.
VIII – CONFIDENTIALITY
Each Party must refrain from communicating to any person, directly or indirectly, all or part of any type of information which has been released to it by the other Party, or which was made known to them during their business relationship.
However, each Party authorises the other Party by prior written consent and after prior validation of the communication team to quote its name and use its logo for commercial purposes.
IX – PERSONAL DATA PROTECTION
9.1. AMA and the Customer are entitled to process contact and contract details obtained under the relationship within the legal requirements of the applicable data protection and privacy laws in its latest version, especially the General Data Protection Regulation (GDPR) 2016/679 implemented 25 May 2018, and, to the extent required in connection with the commercial offer and its implementation, to pass on such data to companies affiliated to AMA.
9.2. Customer undertakes that itself and all its Users (i) collect, process and use personal data only within the scope of the XpertEye Software, (ii) ensure that the security and confidentiality requirements are met while collecting, processing and using data, (iii) receive appropriate training on personal data protection, (iv) commit to respecting all legal obligations appropriate to confidentiality, (v) take into account the principles of personal data protection in terms of tools, products, applications, softwares and/or services..
9.3. Customer and all Users it is liable for shall remain responsible for storage of the data processed directly or indirectly using the XpertEye Software as well as whatever use is made of them. Customer, and all Users he is liable for, undertakes to use the XpertEye Software and any personal data gathered via the Software in such a way that it is fully compliant with personal data protection regulations, particularly the General Data Protection Regulation (GDPR) 2016/679 implemented 25 May 2018.
X – INTELLECTUAL PROPERTY
10.1. There is no transfer of intellectual or industrial property rights by purchasing the Software. Customer shall not have any intellectual or industrial property rights to the work, plans, preliminary projects, studies and designs which it has been sent during the negotiation, conclusion and/or execution of an order, with the exception of the results of the work by AMA, which shall be legally indivisible from and dependent on the pre-existing private rights of Customer. Subject to the same limitation, AMA only authorizes Customer to use the results of its work and services within the limits of the personal needs of the latter. Customer shall refrain from making commercial use of the work, plans, studies and preliminary projects or transfer them to third parties, whether for a consideration or free of charge, on any grounds whatsoever, without the agreement of AMA. All updated and upgraded versions of the XpertEye Software remain sole property of AMA.
10.2. IP Indemnification clause:
AMA warrants Customer against any risk of claim or action brought by Third Parties during or after the performance of the Agreement due to a violation of their rights, including the rights of intellectual property on the elements provided by AMA under the Agreement. As such, it guarantees the Customer in advance against any claim, of whatever nature, emanating from one of its employees or Third Parties. In the event that a case is brought against Customer, all rights, costs, fees and damages to which it may be sentenced will be entirely at the expense of AMA. AMA will stop the counterfeiting, at Customer's choice, either (i) by providing, at AMA's expense, an element equivalent to the element that is the subject of an action in violation of rights, within a time frame deemed by Customer to be compatible with its activity, or (ii) or by obtaining, at AMA's expense, for Customer the right to continue to use the said element; or (iii) if neither of the two possibilities above is feasible within a time frame compatible with Customer's activity, by reimbursing Customer for all the sums paid under the Agreement.