Terms Of Service

LumApps LICENCE FRAMEWORK CONTRACT

This LUMAPPS Contract is entered into by and between LumApps SAS with capital of €400,000, registered on the register of companies of Lyon, whose head office is located at 75 avenue François Mermet, 69160 Tassin la demi-lune, France, represented by Mr Sébastien RICARD, in the capacity of Managing Director and the entity agreeing to these terms (“Beneficiary”). This Contract is effective as of the date the Contract is countersigned (the “Effective Date”). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or the applicable entity to these terms and conditions; (ii) you have read and understand Term of Services of Lumapps; and (iii) you agree on behalf of the party that you represent to this Contract. If you don’t have the legal authority to bind your employer or the applicable entity please do not sign this Contract. This Contact governs Beneficiary’s access to and use of the Services.

THE PARTIES AGREE AS FOLLOWS:

RECITALS

      1. WHEREAS LumApps has designed and developed a standard Application that enables users of Google Apps to create internal portals and intranets that can be managed by Super Administrators. The Application can be used in sectors as varied as the telecommunications, the car and mass retailing industries.
      2. WHEREAS the Beneficiary named on the Purchase Order, and the entities of the Beneficiary, wish to obtain the right to use the Application and more generally to benefit from the services proposed by LumApps in order to design and develop by their own means one or more specific applications, under the following conditions.
      3. Either Party had the opportunity to ask the other all the questions it wanted to get the necessary information it needed to perform the contract properly.
        Both Parties acknowledge that the hereby Contract reflects their negotiations and agreement.

DEFINITIONS

Notwithstanding any terms defined in other sections, for the purposes of the present Contract the terms specified below, the first letter of which is capitalised, shall have the meaning specified below.
      1. Affiliates
        Refers to all legal entities that control or are controlled by the Beneficiary and any company belonging to the Beneficiary as defined in Article L.233-3 I of the French Commercial Code, and the contracting partners of the Beneficiary (customers, suppliers, service providers and/or agents).
      2. Application
        Refers to the Application that enables LumApps to provide the Service to the Beneficiary. These Applications used by the Beneficiary are listed on the product page of the LumApps website (www.LumApps.com) and their use and price have been the subject of negotiations between the Beneficiary and the Supplier.
        There is only one instance per Application, making it possible to facilitate maintenance and upgrades. Distinctive feature of the LumSites Application, for which there is a main instance which can also be deployed in customised form.
      3. Purchase Order
        Refers to the document detailing the special conditions under which LumApps agrees to provide the Service to the Beneficiary and/or the entities of the Beneficiary. The Contract only enters into force once the Beneficiary and LumApps have expressly accepted (i) the Purchase Order and (ii) the present general conditions.
      4. Contract
        Refers to all of the provisions included in the present general conditions, governing the application service and in all Purchase Orders, each of which is accepted in full by the Parties, and of which the recitals and any annexes form an integral part.
      5. Date of Entry into Force
        Refers to the date specified on the Purchase Order from which the Beneficiary and Affiliates can access the online Service.
      6. Partners
        Refers to the contracting partners of the Beneficiary and/or the entities of the Beneficiary (service providers, subcontractors, users as internet users and/or end users etc.) that the Beneficiary wishes to authorise to access and use the Applications free of charge or against payment. The Beneficiary alone shall be responsible for compliance with the Contract by the Partners, and guarantees, without any restriction or reservation, that they will comply with all of the provisions of the contract.
      7. Price
        Refers to the amount that the Beneficiary or entities of the Beneficiary shall pay to LumApps in return for the right to use the Service.
      8. Service
        Refers to the right of the Beneficiary and entities of the Beneficiary to use the Applications remotely under the conditions specified in the Contract. The Service includes the Application hosting services, as well as a guarantee of availability and penalties in the event of a breach. All of the services that comprise the Service constitute an indivisible whole for LumApps.
      9. Super Administrators
        Super Administrators are the people responsible for administering the LumApps Applications at the Beneficiary.
      10. Users
        Refers to the people employed by the Beneficiary, an Affiliate or a Partner, authorised to use the Service, the maximum number of which is indicated on the Purchase Order. A User corresponds to an active connection. When a Google account is suspended or deleted, the status of the LumApps account is updated and the licence is released.
PURPOSE
      1. The purpose of the Contract is to define the conditions under which LumApps shall provide the Service to the Beneficiary in return for payment of the Price. Only the Super Administrators of the Beneficiary, acting under its responsibility, can name the Users authorised to access the applications, depending on the case, and shall be authorised to give them access to the Service.
      2. All of the statuses of the Applications are available at the following address: status.LumApps.com.The Application as a Service can only be used:
        1. remotely at the hosting site chosen by LumApps (Google App Engine), for which the access codes are provided by LumApps;
        2. within the limits of the data specified on the Purchase Order (number of Users), the Beneficiary undertakes not to use the Applications for more than the contractual quantities or the quantities ordered on the Purchase Orders.
      3. The Beneficiary’s applications and data shall be hosted on the Google Cloud Platform which has the technical infrastructures and physical and application monitoring tools in compliance with industry standards. LumApps undertakes to ensure the availability of the Service in accordance with Article 7 under the contractual conditions guaranteed by its host, as specified in the agreement signed by the Beneficiary with Google For Work. The cost of hosting is included in the Price.
      4. The Beneficiary and/or the entities of the Beneficiary shall automatically benefit, free of charge, from all of the upgrades made to the Applications specified above.
CONTRACT PERIOD
      1. The Contract constitutes a binding agreement from the date that it is accepted (signing of a print version or online consent) by both Parties. It enters into force: (i) on the Date of Entry into Force indicated on the Purchase Order, for the specified period (the “Initial Period”): (ii) if the Beneficiary has previously accepted the Contract without reservations, either by signing a print version of the Contract (general conditions concerning the Application as a Service and Purchase Order) or by accepting the online Contract (general conditions concerning the Application as a Service and Purchase Order), the Beneficiary expressly accepting that the computer archives of LumApps constitute proof of its consent.
      2. At the end of the Initial Period, the Contract shall be automatically renewed for successive periods of one (1) year, up to a maximum period, including the Initial Period, of three (3) years. It is agreed that if the Beneficiary does not wish to automatically renew the Contract at the end of the Initial Period indicated on the Purchase Order, it can terminate the Contract, subject to three months’ notice sent to LumApps by registered letter.
FINANCIAL CONDITIONS
      1. The amount and terms of payment of the Price are specified on the Purchase Order and indicated exclusive of tax. The Beneficiary and/or the entities of the Beneficiary are entirely liable for payment of the Price and any duties and/or taxes due relating to performance of the Contract. The Price is payable in advance.
      2. Receivables due to LumApps are payable at the address indicated and on the initiative of the debtor. If any amount remains due more than thirty (30) days after a final request for payment by LumApps to the Beneficiary, LumApps shall be authorised to suspend the Service and/or terminate the Contract.
      3. In the event of non-payment within the contractual time limit, interest shall automatically be charged on a daily basis on any outstanding amounts, until the date of payment in full of the principal, interest and any other incidental charges due, at a rate equal to three (3) times the legal interest rate in force, in addition to payment of compensation for recovery costs of €40, without any other formalities and without prejudice to any damages that LumApps reserves the right to claim. The Parties accept that all costs (procedural costs, general expenses, lawyers’ and bailiff’s fees) incurred in order to recover the amounts outstanding and due by the Beneficiary shall be deemed incidental charges to the request by LumApps.
      4. In the event of a Contract executed through a LumApps dealer, the amount and terms of payment of the Price shall also be specified on the Purchase Order and indicated exclusive of tax. The Beneficiary shall have immediate access to the Service provided that the LumApps dealer pays the amounts due to LumApps when the order is placed.
      5. The time limit for payment of the invoices by the Beneficiary and /or the entities of the Beneficiary is thirty (30) days after the end of the month of issue of the invoice.
OBLIGATIONS OF THE BENEFICIARY
      1. Payment
        In exchange for the performance of the Service by LumApps, the Beneficiary undertakes to pay the
        Price as stated in the Purchase Order, under conditions laid down in article 5.
      2. Preferred interlocutor and Super Administrators
      3. The Beneficiary agrees to appoint one of the Super Administrators as its preferred interlocutor, responsible for representing it in its relations with LumApps and ensuring that the provisions of the Contract are properly performed. This interlocutor shall have the experience, know-how, authority and resources required to perform its duties.
      4. In addition the Beneficiary agrees to appoint at least one (1) Super Administrator who shall have the role of technical interlocutor for LumApps. The Beneficiary undertakes to: (i) train the Super Administrators before the Users start using the Applications; (ii) provide continuing training of the Super Administrator(s); and (iii) ensure that it always has one (1) Super Administrator among its employees. The Super Administrator(s) shall be the only persons authorised to access the corrective maintenance service. Compliance by the Beneficiary with the provisions of the present Article is an essential condition for performance by LumApps of its maintenance obligations relating to the Service.
      5. Duty to cooperate
        As a general principle, the Beneficiary undertakes to cooperate in good faith, in particular by giving to LumApps all of the documents, data and information required to enable it to provide the Service under the conditions specified in the Contract.
AVAILABILITY OF THE SERVICE
      1. Calculation of availability
        The Service is deemed to be unavailable if the Beneficiary no longer has access to the Service under the following conditions: (a) breakdown in the Service for more than five (5) consecutive minutes; and (b) breakdown in the Service specifically linked to a problem affecting the Applications.
        The availability of the Service solely applies to LumApps products. Regarding the availability of Google Apps products, the Google Apps availability contracts apply.
        LumApps shall implement all of the resources at its disposal to guarantee an availability rate of 99.9%.
      2. The monthly availability of the Service is calculated by subtracting from 100% the monthly percentage of any interruption to the Service lasting more than FIVE (5) consecutive minutes, except for the following events:
        1. programmed maintenance schedule: programmed maintenance operations will be notified to the Beneficiary by email for the attention of the Super Administrator at least 72 working hours in advance, and cannot exceed a total of two (2) hours per month;
        2. case of force majeure or failure not due to LumApps (for example interruptions to Google Apps);
        3. preventive interruption to the Service to counter a denial of service attack.
      3. Penalties
      4. Calculation of penalties per Application
        All of the penalties are calculated separately for each Application:
        Monthly availability percentage Service credit (in days)
        < 99.9% – ≥ 99.0% 3
        < 99.0% – ≥ 95.0% 7
        95.0% 15

        The Beneficiary and/or entities of the Beneficiary must make an explicit request to obtain their service credits. To obtain the credits indicated above, the Beneficiary and/or entities of the Beneficiary must make a request to LumApps within 30 days of the unavailability of the service. If it does not do so, the customer shall no longer be entitled to the service credits.
        Maximum service credits:
        The maximum number of service credits that will be issued to the Beneficiary and/or entities of the Beneficiary by LumApps for all unavailability periods during the same calendar month, cannot exceed 15 days of service added to the Contract Period. Service credits cannot be exchanged for or converted into monetary amounts.

      5. If the monthly availability rate is between 99% and 99.9%, LumApps will credit the Beneficiary with three (3) days’ Service free of charge (in addition to the current Contract Period);
      6. If the monthly availability rate is between 95% and 99%, LumApps will credit the Beneficiary with seven (7) days’ Service free of charge (in addition to the current Contract Period);
      7. If the monthly availability rate is less than 95%, LumApps will credit the Beneficiary with fifteen (15) days’ Service free of charge (in addition to the current Contract Period);
SUPPORT SERVICES
      1. Definitions
        1. Availability shall have the meaning set out in paragraph 2 of Part B of this Schedule.
        2. Incident shall mean any issue or problem with any function of the Application which is specifically linked to an issue affecting the Application.
        3. Unavailable shall mean in respect of the Application, where the live production version of the Application is completely unavailable for use by Authorised Users for at least 5 consecutive minutes, excluding any unavailability that is caused by any of the events set out in paragraphs 1(a) to 1(e) of Part B of this Schedule. Unavailability shall be construed accordingly.
      2. Support Services
        1. The Support Services cover:
            • Incident investigation;
            • Incident resolution;
            • certain routine maintenance tasks; and
        2. provision of updates of the Application.  
        3. (b) The Support Services shall exclude (and LumApps shall not be required to provide any support in connection with):
          • any Incident resulting from the failure of the Customer or any Authorised User to comply with this Agreement, or the failure of the Customer and/or Authorised User to read and act in accordance with the Documentation;
          • any Incident resulting from the Customer’s or any Authorised User’s misuse, alteration or combination of the Services with any hardware or software not identified as compatible by LumApps;
          • any Incident which is attributable to any Third Party Software with which the Application is integrated (including G Suite); or

          and LumApps shall not be required to provide Support Services where the Super Administrators are not adequately and appropriately trained in respect of the use of the Application.

          (c) In order to benefit fully from the provision of the Support Services, the Customer must:

          • immediately report any Incident with the Application or the Services to LumApps and provide all information required in order for LumApps to locate and replicate the Incident;
          • ensure that all requests for Support Services are transmitted to LumApps in accordance with the terms of this Agreement;
          • ensure that its Super Administrators are adequately and appropriately trained in respect of the use of the Application; and
          • authorise LumApps to contact the Customer’s Super Administrator(s) in connection with the Support Services.
      3. Support Procedure
        1.  (a) The LumApps help desk (Help Desk) shall be responsible for handling all requests for Support Services on behalf of LumApps. The Customer shall contact the Help Desk via the web portal found at support.lumapps.com .(b) LumApps will ensure the Help Desk is staffed during Normal Business Hours on Business Days during the Term. (c) The Customer shall provide as much information as possible in respect of any Incident, to enable the Help Desk to investigate the Incident and to reproduce operating conditions similar to those present when the Customer detected the relevant Incident, and shall allow remote access to its systems, if required by the Help Desk. (d) The Help Desk shall undertake a preliminary investigation of the Incident and shall allocate it to one of the priority levels set out in paragraph 4 below.
      4. Priority Levels
        1. LumApps shall use reasonable endeavours to respond to notification of and resolve an Incident in accordance with the following priority levels depending on the severity of the Incident:
        2. Category Description Target Response Time
          1 The Incident causes the Application to fail to operate completely or causes use of the Application to be substantially impaired. Acknowledgement of the notification of the Incident within one (1) Normal Business Hour
          2 Any Incident that does not fall into priority level 1 above, including where any functionality of the Application is impaired but use of the Application is not substantially impaired. Acknowledgement of the notification of the Incident within four (4) Normal Business Hour

          * Resolution of an Incident may consist of the installation or supply of a workaround, or a temporary or permanent update to the Application.

          For the avoidance of any doubt, the response and resolution times set out in the table above are key performance indicators (KPIs) only and failure to achieve any of these KPIs shall not be deemed a breach of this Agreement.

        3. Routine Maintenance
            1. As and when LumApps deems necessary, LumApps shall provide a general maintenance update to resolve minor issues with the Application and shall undertake other routine maintenance tasks in relation to the Services.
            2. LumApps shall use reasonable endeavours to give the Customer 72 Normal Business Hours’ notice of any planned maintenance and shall use reasonable endeavours to ensure that such maintenance does not exceed two (2) hours per month.  However, the Customer acknowledges that there may be occasions where, in order to remedy problems with the provision of the Services to other customers, it is necessary for LumApps to undertake emergency works upon LumApps’s server and interrupt the availability of the Services in respect of which it is not able to give notice. To the extent it is able to do so, LumApps shall use reasonable endeavours to provide notice to the Customer of any such emergency works, where practically possible.
        4. Updates
          1. LumApps may produce periodic updates to the Application free of charge to Customers with a valid support contract which may improve the functionality of the Application or contain error corrections.
QUALITY ASSURANCE
      1. Definition
        “Incident” refers to any anomaly in the operation of a function specifically linked to an issue affecting the Application. An Incident is either: (i) major (critical error affecting the functions with no workaround); or (ii) minor (functions corrupted or not used in the Applications).
      2. Processing and correction
      3. Reporting of an Incident by the Super Administrator
      4. It is the responsibility of the Super Administrators to report the incident as soon as possible in the LumApps dedicated ticket system support.lumApps.com accessible via the internet from 8.30 am to 7.30 pm Monday to Friday except on public holidays in France (the “Working Hours”) in French and English times.
      5. Time limit for incidents to be taken into account by LumApps
        One (1) working hour in France from reporting of the incident.
      6. Resolution of the Incident (from the start of the intervention lead time):
        Major: within 24 Working Hours from the time the incident is taken into account
        Minor: within 72 Working Hours from the time the incident is taken into account
      7. Nature of the solution
        Restoration of the Service by the installation or supply of a workaround system or temporary or permanent update of the Application.
      8. Limits to intervention by LumApps
        To benefit from the Service at the quality level proposed by LumApps, the Beneficiary must:
        1. immediately report any Incident to LumApps and immediately transmit to LumApps all of the information required to locate and replicate the Incident;
        2. ensure that the Incident reports are transmitted to LumApps by the Super Administrators and according to the methods specified in the Contract;
        3. Authorise LumApps to contact the Super Administrator(s) to request all of the information required regarding the reported Incident.
DATA PROCESSING AND PRIVACY (BENEFICIARY LOCATED IN THE EU)
      1. The Beneficiary approves and acknowledges that by placing an order, LumApps may store, process and use data indicated in the Purchase Order for processing of this order in accordance with provisions of the French Law “Informatique et Libertés” of January 6th, 2017, as modified by the Law dated October 7th, 2017. This information is strictly confidential and is for the sole use of LumApps.
        The Beneficiary is entitled, in accordance with national and European regulations, to an access right, rectification right, a right to erase its personal data, right to restriction of processing, right to object and right to data portability. It can exercise its rights in contacting administratif@lumapps.com. It also has a right to lodge a complaint with a supervisory authority. Finally, it has the right to define guidelines as regards what happens to its personal data after death.
        The Beneficiary’s personal data may also be used for commercial prospection ends through electronic means, provided the Beneficiary gave its prior and express consent.
      2. When performing the Contract, LumApps may also collect personal data concerning clients of the Beneficiary, so that LumApps will act as processor of personal data processing and that the Beneficiary will act as controller of personal data processing. If any, it is the parties’ liability to have all the legal, regulatory and administrative authorisations for performance of the Contract, and in particular to comply with the French Law “Informatique et Libertés” and, from May 25th 2018, the General Data Protection Regulation (“GDPR”).
        For purpose of the Contract, LumApps shall, for the account of the Beneficiary, collect personal data. Personal data that LumApps is entitled to collect in the field of the Contract in order to perform the Service are described in the Purchase Order.
        Since LumApps acts as processor of personal data processing in accordance with applicable personal data regulation, LumApps undertakes:
        • Not to take copies of personal data, documents and information provided, to the exception of those required for performance of missions;
        • Not to use personal data, documents and information processed for purposes other than those provided for in the Contract;
        • Not to disclose the personal data, documents and information to third parties, either private or public, natural or legal persons;
        • To take all measures enabling security and confidentiality of personal data, and especially to prevent them from being altered, damaged or shared with unauthorised third parties;
        • To take all measures to avoid any diverted or fraudulent use of personal data during performance of the Contract;
        • To take all measures, especially of physical security, to ensure storage of personal data processed for the duration of the Contract;
        • To notify to the Beneficiary and without undue delay:
          • any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
          • any accidental or unauthorised access;
          • and
            any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
        • To act only on documented instructions from the Beneficiary and to immediately inform the Beneficiary, if, in its opinion, an instruction infringes data protection regulation;
        • To make sure that persons authorised to process personal data undertake to comply with provisions of this article; LumApps undertakes in particular to ensure that the host that enables LumApps to provide the Service to the Beneficiary is informed of the following commitments, made by LumApps to the Beneficiary, and strictly respects them:
        • each of the Beneficiary’s Applications shall be partitioned: once an account has been opened by the Super Administrator(s), the Users will only have access to their own data, according to the profile given to each User, at the URLs specific to each Beneficiary;
        • the connection/identification process shall be designed to withstand attacks.
          To implement appropriate technical and organisational measures to help the Beneficiary to comply with its obligation to answer requests received from data subjects by which they exercise their rights provided for by data protection regulation;
        • To make available to the Beneficiary all information necessary to demonstrate compliance with the obligations laid down in this article and allow for and contribute to audits, including inspections, conducted by the Beneficiary or another auditor mandated by the Beneficiary;
        • To notify the Beneficiary without undue delay after becoming aware of a personal data breach so that the Beneficiary is enable to comply with its obligations in this regard and especially its notification obligation to the CNIL.
      3. LumApps undertakes to respect processing conditions and/or the destination of personal data transmitted by the Beneficiary or to which it has access when performing the Contract. In particular, LumApps undertakes not to exploit for its own account, transfer and/or lease to third companies personal data processed when performing the Contract.
      4. In the event of termination of the Contract on any grounds whatsoever, LumApps reminds the Beneficiary that the Applications and personal data of the Beneficiary shall be deleted from its servers, in accordance with Article 13.2 “Consequences of termination for the Data and Applications”.
        LumApps undertakes to return or destroy within the time limit specified in Article 13.2.3 all of the data and in particular the personal data belonging to the Beneficiary. LumApps will provide a certificate certifying the destruction of the data belonging to the Beneficiary.
      5. Backup of the Beneficiary’s data
        The Beneficiary’s data stored in the LumApps products (in the Google Cloud Datastore) are backed up in Google Cloud Storage, apart from the files/folders included on Google Drive on the Beneficiary’s platform. They can be backed up if necessary by the Beneficiary using third-party solutions.
INTELLECTUAL PROPERTY
      1. General remarks
        All intellectual property rights relating to the Application as well as all the elements that compose it (documentation, copyrights…) are the full and entire property of LumApps. The Beneficiary undertakes not to infringe, directly or indirectly or through third parties with whom it is associated, the intellectual property rights of the Supplier.
      2. Licence
        Notwithstanding the above, the Service includes a non-exclusive and non-transferable right to use the Applications for the Contract Period specified herein. The right to use the Applications is exclusive of the licence of any other right and does not in any way imply the right to make any act not expressly authorized and in particular the rights of copy, translation, adaptation, arrangement or any other modification of the Applications and/or its components. Consequently, on no account does it confer the right to sublicense, assign, transfer or make the aforementioned Service available to any third parties other than an Affiliate or Partner, free of charge or against payment, notwithstanding any practical or legal arrangements in this regard.
      3. Guarantees
        LumApps guarantees that (i) the Applications are original copies; and that it (ii) holds all of the intellectual property rights relating to the Applications and/or that it has licences granted by the holder of the aforementioned rights, and that it is therefore authorised to propose use of the Applications under the conditions specified herein.
      4. The Beneficiary and/or entities of the Beneficiary are the exclusive owners of their data.
      5. During the Contract Period, LumApps guarantees the Beneficiary against any claims or action instituted by any third party for infringement of its intellectual property rights by the Application. LumApps shall organise, at its own expense and by its own means, the defence against any claim or action of this kind instituted against the Beneficiary by a third party on the grounds of infringement of its intellectual property rights by the Application. LumApps shall pay all of the damages claimed from the Beneficiary by virtue of a final decision on the merits pronounced by a legal authority.
      6. LumApps guarantees the Beneficiary that the Application does not constitute an infringement of copyright, and it is up to the Beneficiary to inform LumApps as soon as possible of any claim or action likely to be instituted, authorise it to organise its defence and cooperate with LumApps for the purposes of this defence at LumApps’ expense. LumApps alone shall be responsible for the defence, and in particular any appeals or negotiations, and shall be entitled to conclude a settlement agreement in accordance with Articles 2044 et seq. of the French Civil Code.
      7. If such proceedings or action is instituted, or if a sentence is pronounced against LumApps, LumApps may decide at its expense: (i) to obtain the right for the Beneficiary to continue to use the Application; or (ii) to replace or modify the Application in order to end the infringement; or (iii) if it is not possible to obtain the right to continue to use the Application and if the Application cannot be replaced or modified at a reasonable cost, to issue notice of termination of the Contract and repay the Beneficiary in full for the amount of the Price that it has already paid.
DUTY TO PROVIDE ALERTS AND WARNINGS
      1. The Beneficiary and/or entities of the Beneficiary are alone responsible for managing the project to provide the Service. The Beneficiary undertakes to carry out, or declares that it has already carried out, a detailed analysis of its requirements and objectives before using the Service. In addition, the Beneficiary and/or entities of the Beneficiary declare that they have, thanks to their employees or contractor, the necessary know-how to do this. The Beneficiary and/or entities of the Beneficiary acknowledge that before signing the Contract, LumApps gave them all of the information required to make their decision with full knowledge of the facts, and has fully informed them of the intended use, capabilities and objectives likely to be obtained in connection with the Service. The Beneficiary declares that LumApps has clearly explained to it that the success of the Service depends on its ability to adapt certain of its internal organisational and/or operational processes.
      2. LumApps reminds the Beneficiary that the Internet, via which the Service is supplied, is an open and informal network made up of computer circuits interconnected at the global level based on the TCP/IP standard. The internet is not managed by a central body, since each part of the network belongs to a separate public or private authority. The system functions thanks to cooperation between the operators of the different networks, which are not in any case required to provide or guarantee any level of quality. The networks may offer very different transmission capabilities and be governed by their own rules. Consequently, LumApps is not able to guarantee the smooth functioning of the internet as a whole, or offer any guarantees whatsoever against total or partial malfunctioning of access to the Service, the Application and/or the Applications, which may not constitute an Incident.
LIABILITY
      1. LumApps undertakes to provide the Service with all of the professionalism, diligence and skill required, and in the event of a failure, can only be released from any liability by providing formal evidence that it is not involved, particularly in the event of unavailability of the Service.
      2. If it is held liable, LumApps shall bear all of the direct and immediate financial consequences specified in Article 1231-4 of the French Civil Code due to its liability in the event of foreseeable damage due to total or partial malfunctioning of the Service, according to Article 1231-3 of the French Civil Code.
      3. LumApps disclaims all responsibility for the financial consequences of any indirect or unforeseeable damage resulting from partial or total malfunctioning of the Service, and in particular the loss of profits, commercial losses, loss of sales, business, customers or opportunities, cost of obtaining a replacement product, of Applications, repairs or technology costs, according to the uses of the application.
      4. The total financial liability of LumApps cannot on any account exceed the amount of the Price paid by the Beneficiary for the twelve (12) last months of use of the Service, apart from the compensation specified in Article 10.3.3.
      5. The Beneficiaries cannot hold LumApps liable for a breach, if the contested breach occurred more than one (1) year earlier. The limited liability specified in the present Article 12 has been defined in the light of the general balance of the Contract, calculated according to the extent of the obligations of LumApps relating to the Service, the amount of the Price and the compensation that LumApps agrees to pay to the Beneficiary if it is liable.
      6. The Parties expressly state that the licence granted by LumApps to the Beneficiary for the Application constitutes, in connection with the Service, a service as specified in Articles 1709 et seq. of the French Civil Code, given that a copy of the Application is made available. In this regard, and contrary to Article 1721 of the French Civil Code, LumApps expressly excludes all warranties for hidden defects, and does not in any way undertake to provide uninterrupted operation of the Service free from all errors.
TERMINATION
        1. Causes of termination
        2. Either Party shall be entitled to early terminate this Contract by way of written notice of termination to the other Party showing its intention to enforce the hereby clause, provided that the defaulting Party fails to remedy the breach within a period of 30 Business Days from the written notice thereof, in case of failure to respect the following material or substantial obligations:
          • if the Beneficiary fails to respect the time limits for payment specified on the Purchase Order
          • If the Service is unavailable for three (3) consecutive days without being restored or if the Service availability is less than 95% for three consecutive calendar months, the Beneficiary shall be entitled to terminate the Contract, and LumApps undertakes to repay to it all of the sums received on a pro rata temporis basis for the outstanding term of the Contract (except in cases of force majeure).
          • If the Beneficiary breaches any of its obligations under Article 6. In that case, all outstanding amounts on the effective date of termination shall be immediately due to LumApps, and the Beneficiary shall be required to pay them immediately, notwithstanding the aforementioned termination and without prejudice to the right that LumApps reserves to claim damages for the total loss incurred.

          The Parties agree that the amount due in damages shall not exceed either the total annual revenue generated by each of the LumApps products.

1. LumApps reserves the right to terminate the Contract at any time, upon 30-days prior notice:

        1. if an individual or legal entity that develops and/or markets a service or Applications, competes with the Service or Applications, and obtains direct or indirect control of the Beneficiary as specified in Article L.233-3 of the French Commercial Code (“Control”);
        2. if the Beneficiary gains control of a legal entity that develops and/or markets, directly or indirectly, a service or Application which, according to LumApps, competes with the Service or Application;
        3. in the event of a merger or takeover of the Beneficiary, recapitalization or reorganisation of the Beneficiary, transfer of all or almost all of the Beneficiary’s assets or business, following which the Beneficiary becomes a direct or indirect competitor of LumApps, or develops and markets a service or Application which, according to LumApps, directly or indirectly competes with the Service or Application.
      1. Consequences of termination for the Data and Applications
      2. From the date of termination or effective expiry of the Contract on any grounds whatsoever, the Beneficiary, as well as its Affiliates or Partners, will no longer benefit from the Service.
      3. From the date of termination or effective expiry of the Contract on any grounds whatsoever, the Beneficiary shall take all necessary steps to quickly back up its Applications and data, using tools made available to it in connection with the Service, it being understood that LumApps will not intervene in any way in the process of extracting and backing up the aforementioned Applications and data.
      4. Ninety (90) days after the date of termination or effective expiry of the Contract on any grounds whatsoever, LumApps undertakes to delete all of the Beneficiary’s Applications and data from its environment, and shall not keep any copies of them.
      5. From the date of termination or effective expiry of the Contract on any grounds whatsoever, the Beneficiary shall return any document that would have been handed over by LumApps for the performance of the Contract, where appropriate.
CONFIDENTIALITY
      1. All of the information relating to the Contract and the provisions herein, and more generally, but not limited to, the strategic plans, current and future activities, know-how and employees of the Parties, are confidential, regardless of whether the aforementioned information is obtained directly or indirectly from the other Party, its employees or those of the Beneficiary, their subcontractors, agents or contractors. The information is provided in its current state, without any express or implicit guarantee of its accuracy or integrity.
      2. The following information is not considered confidential:
        1. information accessible to the public, without the Party that discloses or uses it having breached the terms of the Contract;
        2. information held validly by one Party before its disclosure to the other;
        3. information not resulting directly or indirectly from use of all or part of the confidential information;
        4. information duly obtained from a third party authorised to transfer or disclose it, without breaching any confidentiality obligation.
      3. Each Party to the present agreement undertakes: (i) not to use the confidential information of the other Party for any purpose other than to exercise its rights or perform its obligations under the Contract; (ii) not to disclose the confidential information to any person by any means whatsoever, except their employees, contractors or subcontractors who need to know it in order to carry out the Contract.
      4. To protect their respective confidential information, each Party undertakes to take the same measures as those that it takes to protect its own confidential information, and to ensure that its employees, as well as those of the entities of the Beneficiary and of any Partners who have access to the confidential information, sign a confidentiality agreement before gaining access to it, imposing obligations equivalent to those defined in the present Article.
FORCE MAJEURE
      1. The Parties shall not be held liable if performance of their obligations is delayed, restricted or made impossible by a force majeure event (hereinafter referred to as “Force Majeure”).
      2. If a Force Majeure event occurs, performance of the Parties’ obligations shall be suspended. If the aforesaid Force Majeure event lasts for more than thirty (30) days, the Contract may be terminated by notice issued by the first Party to act, without either Party being held liable. Each Party shall bear all of the costs that they are required to pay due to the Force Majeure event in question.
      3. The Parties expressly declare that any unforeseeable and inevitable event constitutes a Force Majeure event. The following events are considered to be Force Majeure events (non-exhaustive list): act of state, war (declared or not), invasion, rebellion, blockade, sabotage, vandalism, total or partial strike, industrial dispute whether or not LumApps is involved, disturbances to law and order, extreme weather conditions, natural disasters, fire, epidemics, unavailability or stopping of methods of transport or supply affecting in particular the electricity, heating, air conditioning and telecommunications networks (including the internet) etc.
UNFORESEEABLE CHANGE OF CIRCUMSTANCES
      1. In the event of a change of circumstances unforeseeable at the time of conclusion of the Contract, making its execution excessively onerous for a Party that has not accepted to assume this risk, the Parties shall endeavor to settle their potential disputes amicably.
        The most diligent Party shall, as soon as possible, inform the other Party of the existence, nature and characteristics of the change by registered letter with acknowledgment of receipt.
        From the date of receipt of the aforementioned notice, the Parties shall meet in order to find an amicable solution regarding the amendments that have to be made to the Contract after the unforeseeable change of economic circumstances, without possibility for either of them to file a claim in Court for a period of sixty (60) days from the date of notification. During this period, the Parties shall continue to perform the Agreement on the terms originally agreed.
        If the Parties have not reached an agreement, within sixty (60) days, on any amendment to be made to the Contract subsequently to the unforeseeable change in the economic circumstances referred to above, the most diligent Party may terminate this Contract by giving prior notice of sixty (60) days.
MISCELLANEOUS PROVISIONS
      1. Use of the Beneficiary’s name as a reference
        The Beneficiary authorises LumApps to use its names and/or trademarks and/or distinctive marks as a business reference with the prior agreement of the Beneficiary. The prior written authorisation of the Beneficiary is required for any other use by LumApps of its names and/or trademarks and/or distinctive marks.
      2. Subcontracting
        LumApps’ obligations, and in particular the Hosting services, may be subcontracted to another company. Where appropriate, LumApps shall remain entirely liable towards the Beneficiary for provision of the services entrusted to a subcontractor.
      3. Insurance
        LumApps declares that it has taken out an insurance policy with a reputable company, covering all of the risks linked to its obligations under the Contract.
      4. Severability
        If one of the provisions of the Contract is declared invalid or non-enforceable by a final sentence on the merits pronounced by a competent legal authority, the Parties shall reduce as far as possible the scope of the provision in question, so that the other provisions of the contract remain fully applicable and in force and that the economic balance of the Contract is preserved. Where appropriate, the Parties undertake to renegotiate in good faith the content of a new provision to replace the invalid or unenforceable provision.
      5. Non-waiver
        If one of the Parties does not immediately exercise, or fails to exercise, a right, power or remedy, it shall on no account be deemed to have waived the right, power or remedy in question in favour of the other Party. Similarly, the occasional or partial exercise of a right, power or remedy does not prevent the subsequent exercise of any other right, power or remedy under the Contract. To be effective, a waiver must be the subject of a written deed duly signed by a representative of each of the Parties.
      6. Transfer of the Contract
        The Beneficiary cannot partly or totally transfer the Contract, free of charge or against payment, without the prior written authorisation of LumApps. Notwithstanding the above, the Beneficiary shall be free to transfer all or part of its rights and obligations under the Contract to the Affiliate of its choice, provided that the Affiliate has first signed a copy of the Contract in which it undertakes without restriction or reservation to accept all of the Beneficiary’s obligations, and in particular those specified for previous contract periods. No takeover/merger or similar operation involving LumApps can undermine the conditions for supply of the Service to the Beneficiary.
      7. Entire agreement
        The Contract constitutes the entire agreement between the Parties relating to the services that are the purpose hereof. It cancels and replaces any documents, understandings or contracts, whether verbal or written, executed between the Parties relating to the same services. The Contract can only be modified by an additional agreement signed by both Parties.
      8. Notifications and calculation of deadlines
        All notices (notifications, reports, approvals or formal consents) required or necessary for the purpose of performance of the Contract shall be executed in writing and deemed duly served if they are: (i) delivered personally; or (ii) sent by registered mail with acknowledgement of receipt or by express courier company against a receipt. Except as otherwise provided in the Contract, the time limits shall be calculated in calendar days, one week comprising six (6) workdays and five (5) working days. Any deadline that runs from the time notice is served shall be calculated from the date of the first attempted delivery to the recipient, the postmark, the acknowledgement of receipt or the date marked on the letter delivered personally. If a measure must be taken or notice served at a specific date or within a specific deadline which is not a working day, the measure or notice concerned can be deferred to the next working day.
      9. Discontinuation of the LumApps Service
        In the event of discontinuation of the LumApps Service or liquidation of LumApps, LumApps undertakes to provide all of the data of the Beneficiary and/or the entities of the Beneficiary in a standard market format. LumApps also undertakes to give the Beneficiary the most recent version of the source codes of the Applications, which LumApps undertakes to hand over to a trusted third party (notary public, lawyer or APP).
APPLICABLE LAW AND JURISDICTION
    1. The Contract is subject to French law, as regards procedural rules and substantive law. If the Contract is translated into another language, only the French version shall prevail and be legally binding on the Parties.
    2. SINCE THE BENEFICIARY ACTS IN THE CAPACITY OF TRADER, AS DEFINED IN ARTICLE 48 OF THE FRENCH CODE OF CIVIL PROCEDURE, AND EXCEPT IN THE EVENT OF AMICABLE SETTLEMENT BETWEEN THEM, THE PARTIES EXPRESSLY UNDERTAKE TO REFER ALL DISPUTES THAT ARISE IN RELATION WITH THE CONTRACT, AND IN PARTICULAR ITS INTERPRETATION, PERFORMANCE OR TERMINATION, TO THE COMMERCIAL COURT OF PARIS, EVEN IN THE EVENT OF SUMMARY PROCEEDINGS.