These General Terms and Conditions (“GTC”) govern the terms of the SOFTWARE License granted to the Client by BEAR SAS ( “BEAR”), a simplified joint-stock company operating under French law with capital of €12.500, registered under the identification number 804 465 276 in the Montpellier companies register, France, represented by Pierre Addoum in his capacity as President, without prejudice of BEAR’s right to enter into Special Conditions with certain Clients and to produce “Category-Specific General Terms and Conditions” which would waive certain conditions of these General Terms and Conditions.
The Client has in advance agreed to the order form (the “Order Form”) according to which BEAR or a reseller of the SOFTWARE accredited by BEAR (the “Reseller”) offers a right to operate the SOFTWARE as defined in Article 2, below (the “License”). The terms of the Order Form may supplement the terms of these GTC. No other amendment or document will be binding on BEAR or on the Reseller, without the written consent of a BEAR representative authorized for such purpose.
If the Client contracts directly with BEAR, it will receive one monthly invoice for the value of the monthly fee of the License. Any disagreement relating to the invoicing shall be explained in a Registered Letter with Return Receipt Requested sent within thirty (30) days as of receipt of the invoice. If no such letter is sent, the Client will be deemed to have agreed to the invoicing. If the Client contracts with the Reseller, the Client hereby agrees to the License invoicing conditions being included by reference in the contract between the Client and the Reseller.
If the Client fails to pay or is late with a single instalment of the fees, then the day following the settlement date stated on the invoice, automatically and without any official notice, in accordance with Article L.441-6 of the French Commercial Code, the Client will be required to pay all amounts remaining due, regardless of the payment procedure arranged, plus interest for late payment, until the date of actual receipt of funds, at the most recent refinancing rate issued by the European Central Bank plus ten points; a fixed fine of forty euro (€ 40) will also be imposed upon the Client for collection costs. When the collection costs actually incurred are greater than the amount of that fixed fine, supported by receipts, an additional compensation payment will be due.
2.1 The License shall cover the use of the software published by BEAR and the associated documentation (the “SOFTWARE”).
The License shall be valid for the term and as of the delivery date cited on the Order Form. The SOFTWARE is protected by copyright, business secrecy and the confidential information of BEAR, who remains the sole owner of the SOFTWARE. Subject to payment of the corresponding fees, the License shall be granted on a non-transferable and non-exclusive basis for the use of the SOFTWARE, and only subject to the following conditions:
(a) in the form of executable object code, machine-readable, and not including the source code;
(b) for the Client’s in-house business use;
(c) in the scope of the settings determining the license, identified in the Order Form (for example, the number of pages, the geography of use, the term of the license, etc.);
(d) for representation and potential distribution to the public.
2.2 If the Client contracts directly with BEAR, it may decide not to renew the License, by notifying BEAR of its decision by registered letter sent at least one (1) month prior to the end of the licensing period stated in the Order Form. If the License is not terminated according to the procedures stated above, the License will be renewed tacitly for an additional period equal to the one stated in the Order Form. Unless the parties agree otherwise un (1) months prior to the end of the licensing period stated in the Order Form, the renewal will be done at BEAR’s public price in effect at the time of renewal. If the Client contracts with the Reseller, the License renewal conditions will be included in the contract between the Client and the Reseller.
3.1 The Client shall not provide access to the SOFTWARE to any third party in any form whatsoever. The Client agrees not to reverse-assemble, reverse-compile or reverse-engineer the SOFTWARE, and not to reconstruct the SOFTWARE’s source code, even for interoperability purposes. The Client will not grant any sub-license for the SOFTWARE or the rights arising out of these GTC, and it will not assign or transfer them in any way whatsoever to a third party. The Client shall not amend the SOFTWARE in any way whatsoever, nor shall it obliterate or change the intellectual property notices or the legal notices placed on the SOFTWARE. The Client shall not use the SOFTWARE, or allow any third party to create derivative or competing works, on the basis of all or part of the SOFTWARE or any associated know- how, or develop any software that may compete with the SOFTWARE in any country, for the legal term of protection of the SOFTWARE. All the terms of these GTC are binding on the successors and assignees of the Client.
3.2 The Client shall not have the authority to permit a third party to decompile or translate the object code of the SOFTWARE into source code. Nonetheless, in accordance with the public order provisions, in the event that the Client should wish to have information making it possible to implement the SOFTWARE’s interoperability, the Client undertakes to consult BEAR in advance, and BEAR shall be required to supply this information to the Client, within a reasonable time frame, if it is easily and quickly accessible. In the event that BEAR is not able to supply the information required for such interoperability, the Client undertakes to inform BEAR of all the acts that will be done to make such an operation possible, as well as the location and identity of those involved in the operation. In any case, the Client undertakes to do as follows:
(a) to restrict its action only to those parts of the SOFTWARE that are vital for interoperability and for a use that remains in accordance with its purpose,
(b) to keep the information obtained by decompilation confidential,
(c) not to use the information obtained in this way for purposes other than the performance of the interoperability of the SOFTWARE, and
(d) not to use the information obtained in this way for developing, producing or marketing a SOFTWARE application whose expression is substantially similar or for any other act that damages copyright.
4.1 The SOFTWARE shall be supplied to the Client from BEAR’s servers. If the Client wishes to include the SOFTWARE into its own management information system – e.g., its mobile application – BEAR shall provide the Client with a SDK (Software Development Kit) that the Client will be able to use in accordance with the SDK’s documentation provided by BEAR.
4.2 BEAR reserves the right to correct errors in the SOFTWARE and to reproduce, adapt, amend and translate the SOFTWARE, where such acts prove necessary to enable the SOFTWARE to be used by the Client in accordance with the provisions hereof and its purpose.
4.3 Corrective maintenance involves action by BEAR or the Reseller if any problems or issues OCCUR concerning the features or use of the SOFTWARE. Corrective maintenance shall be requested solely by the Client’s Project Leader identified in the Order Form or the contract, to the e-mail address [email protected] or to any other support address or number stated on the Order Form or the contract, or by any other person that the Client shall appoint as sole contact person for BEAR or the Reseller for maintenance. The Client shall, to the extent possible, supply any document or medium that the Reseller or BEAR shall deem necessary for the corrective maintenance and shall adhere to the recommendations and instructions supplied in connection with corrective maintenance. BEAR or the Reseller shall respond to the incident report connected with corrective maintenance from Monday to Friday under the following conditions:
(a) within two (2) business hours, in the scope of a critical malfunction, i.e., a fault, bug, or malfunction of the SOFTWARE that renders it inoperative;
(b) within four (4) business hours, in the scope of a serious malfunction, i.e., a fault, bug, or malfunction of the SOFTWARE that impedes its operation significantly;
(c) within twenty-four (24) business hours, in the scope of a minor malfunction, i.e., a fault, bug, or malfunction of the SOFTWARE that does not impede its operation significantly.
No obligation for corrective maintenance shall exist when the warranty is excluded by the provisions of sub-section 6.2.
4.4 Upgrading maintenance involves upgrades (either major or minor) of the SOFTWARE. Upgrading maintenance shall be supplied by BEAR on any media and by any means of its choice, as these upgrades become available at its discretion, along with the appropriate documentation. BEAR warrants the backward compatibility of the upgrades and the non-regression of the SOFTWARE.
5.1 BEAR promises that the SOFTWARE, when it is properly installed, is in compliance with the functional features stated in the SOFTWARE’s documentation. BEAR does not warrant that the SOFTWARE meets the Client’s requirements. BEAR and the Reseller formally exclude all implicit commercial warranties or convenience warranties for a particular use.
5.2 This warranty shall not apply to an operating error when it is:
(a) the result of using the SOFTWARE with a third-party software application,
(b) associated with any version of the SOFTWARE other than the current version and the prior version if it less than eighteen (18) months old, or
(c) the result of a use that is not in accordance with the instructions or recommendations of the Reseller or BEAR or the SOFTWARE’s documentation,
(d) due to a service performed by a third party,
(e) due to “force majeure” as defined under French law,
(f) due to improper use of a machine or of the system.
IN NO CIRCUMSTANCES SHALL BEAR OR ITS RESELLERS BE LIABLE TO THE CLIENT, OR ANY OTHER PERSON OR ENTITY, EVEN IF SUCH SUIT SHOULD BE BROUGHT BY A THIRD PARTY, FOR ANY CLAIM OR COSTS, INDIRECT DAMAGES, ANY LOSS OF PROFIT OR OF EARNINGS, INTERRUPTION OF BUSINESS, LOSS OF DATA OR DATA RENDERED INACCURATE, CAUSED BY THE USE OF OR DEPENDENCE ON THE SOFTWARE OR THE IMPOSSIBILITY OF USING THE SOFTWARE, THE SUPPLY OR LACK OF SUPPLY OF MAINTENANCE SERVICES, OR A FAILURE OF THE SOFTWARE TO OPERATE WITH ANY OTHER PROGRAM, EVEN IF BEAR HAD BEEN NOTIFIED OF THE OCCURRENCE OF SUCH EVENTS. IN NO CIRCUMSTANCES SHALL BEAR BE HELD LIABLE FOR ANY OTHER DAMAGE THAN DIRECT DAMAGES WHICH WILL BE SHOWN TO HAVE BEEN CAUSED BY BEAR, SUBJECT TO THE FOLLOWING. BEAR’S MAXIMUM LIABILITY IN ANY SUIT SHALL NOT EXCEED THE TOTAL VALUE OF THE FEES PAID BY THE CLIENT TO BEAR IN RESPECT OF THE SOFTWARE THAT DIRECTLY CAUSED THE INJURY. THE EXCLUSION AND LIMITATION SPECIFIED BY THIS ARTICLE SHALL APPLY REGARDLESS OF THE BASIS OF THE ACTION, WHETHER IT BE CONTRACTUAL, THIRD-PARTY GUARANTEE, FOR INFRINGEMENT OR IN EQUITY.
The Client warrants BEAR and the Reseller will not be held liable for the editorial content of the Client’s website or for any service fault that the Client offers using the SOFTWARE.f
BEAR shall deal with the defense of the Client or shall come to a settlement, at its own cost and expense, in connection with any law suit brought against the Client on the grounds that the SOFTWARE infringes a patent or a copyright in the United States, Canada, Japan, or a Member State of the European Patent Office. BEAR shall pay the costs and legal damages which the Client may be ordered to pay by a final ruling arising out of a law suit for infringement. The Client agrees, as a pre-condition for BEAR’s commitments in this section:
(a) to notify BEAR in writing of the law suit brought against it within one calendar week after the date on which it became aware of it, itself;
(b) to provide BEAR with the information and assistance required to come to a settlement or to mount a defense; and
(c) to grant BEAR the sole right to defend or settle the suit.
In the event of an infringement claim, BEAR undertakes, as the only remedy and at its own cost and expense, to do one of the following:
(a) to replace or amend the SOFTWARE such that it comes non-infringing, or
(b) to obtain for the Client the right to continue to use the SOFTWARE, or
(c) to reimburse the Client the fee paid, less a reasonable amount to represent its use.
BEAR shall have no liability towards the Client if the infringement is based on:
(a) a use of the SOFTWARE by the Client that is not in accordance with the provisions of these GTC,
(b) the combination of the SOFTWARE with any product not supplied by BEAR;
(c) the amendment of the SOFTWARE by any means other than by BEAR;
(d) the use of a version of the SOFTWARE other than the last version available;
(e) the use of the SOFTWARE as an element within a whole, in which the use of the SOFTWARE alone is not an infringement;
(f) a product that the Client manufactures, uses or sells;
(g) an infringement that is attributable to the Client or to a third party.
In these circumstances, the Client shall reimburse to BEAR the lawyers’ fees and any and all other costs associated with the law suit, holding it harmless in all respects and from all amounts that may be owed.
For the purposes of the performance of these General Terms and Conditions, the following shall be deemed confidential information (hereinafter, “Confidential Information”): all of BEAR’s activities and technical information, including, without limitation, financial information, the SOFTWARE, the know-how, techniques and specifications, the proprietary enhancements, the marketing plans, strategies and forecasts that are obtained by the Client concerning BEAR’s products, services or commercial strategies in connection with these General Terms and Conditions. The Client promises:
(a) to keep the Confidential Information strictly confidential, not to publish it, not to disclose it to third parties, including its clients;
(b) not to use such Confidential Information for any purpose other than the performance of these General Terms and Conditions, and not to undertake any reproduction or duplication, without BEAR’s explicit prior written permission.
(c) not to provide such Confidential Information to any individuals other than those that directly need to be acquainted with it in order to perform this agreement;
(d) to take all appropriate measures via instruction or agreement, before any disclosure to employees, so as to prevent any unauthorized use or disclosure of the Confidential Information.
This confidentiality commitment shall not apply to information already in the public domain as of the date of its disclosure or that should become available at a later time without any breach by the Client.
You understand and agree that certain versions of the Software may allow You to store digital images (“Target Images”) on servers located in Europe, the United States and in other countries (the “Target Manager Web Application”). You also understand and agree that the Software may allow You to retrieve database file(s) containing Target Images from such servers as part of the web interface. You hereby acknowledge and accept that the servers may be owned, managed or controlled by BEAR, or one of its affiliates or service providers, and You agree that BEAR and its affiliates and service providers may use, modify, reproduce and distribute the Target Images to provide the Target Manager Web Application and improve the Software and our products, services and technologies without attribution or compensation.
Collection and Use of Statistics: You understand and agree that the Software sends to BEAR and/or its affiliates and service providers certain technical and related information, including but not limited to: (i) information about the end users’ devices such as make, model, operating system name and version and kernel version, (ii) information about our Software used to create Your software application such as the SDK version and device profile, (iii) information about Your software application and its use such as application runtime timestamp, settings (e.g., camera resolution settings, configuration settings), start and stop dates and times, camera on/off events, target image obtained/lost events, and other general usage information, and (iv) the IP address used by the end user’s device, for the purpose of allowing the BEAR servers to infer the country of use (but not the exact location) (collectively “Statistics”).
You further understand and agree that BEAR and/or its affiliates may collect and use Statistics to:
(a) improve and optimize Software for different hardware and software requirements on various consumer devices (commonly referred to as device fragmentation),
(b) facilitate the provision of new products, updates, enhancements and other services,
(c) improve the Software and our products, services and technologies, and
(d) provide new products, services or technologies to You and/or our customers.
Each end user of the SOFTWARE must agree to the end user terms set forth in this Section 8. If You are licensing Your application(s) directly to end users, then You must include the following terms in Your end user license agreement for each of Your applications. If You are developing Your application(s) for a third party where such third party will, directly or indirectly, license the application(s) to end users, then You must require such third party to include the following terms in the applicable end user license agreement. In all cases, each such end user license agreement must contain legally enforceable provisions whereby:
(i) each end user consents to the collection, storage, and use by BEAR and its affiliates and service providers of Statistics from the Software and the transfer of Statistics between BEAR and its affiliates and service providers (which may be in Europe, the United States or in other countries), in each case for the purposes of (a) facilitating the provision of new products, updates, enhancements and other services, (b) improving the Software, and other products, services and technologies, and (c) providing new products, services or technologies to You and customers of BEAR and its affiliates; and
(ii) each end user is advised of the hazards of using a camera based application while driving, walking, or otherwise by being distracted or disoriented from real world situations; and
These General Terms and Conditions and any updates to them will remain binding on the Client until the License is terminated, or later for all obligations that extend beyond the termination date of the License. In the event that one party should breach its commitments in connection with these General Terms and Conditions, the other party shall be entitled to terminate them and any other license relating to the SOFTWARE ten (10) days after official notice to cure sent by registered letter and remaining without effect. The termination of these General Terms and Conditions shall not have any effect on:
(a) the Client’s obligation to pay for the products delivered and/or used prior to the termination, where that arises out of a breach by the Client; and
(b) the limitations stated in Sections 6, 7 and 8.
Upon termination or expiration of the License, the Client undertakes to discontinue all use of the SOFTWARE and to return it to BEAR or the Reseller, or to provide to BEAR, within seven (7) calendar days after the termination, certification of the deletion and destruction of the SOFTWARE and of all copies of it, and the discontinuation of any use.
Subject to reasonable advance notice, BEAR shall be entitled to audit all registers and accounts that may contain financial information pertaining to the Client’s adherence to the provisions of these GTC; this shall take place in the Client’s premises during opening hours. BEAR will keep all information obtained confidential and shall not use or disclose such information except for the purposes of causing its rights to be honored in connection with these GTC.
The Client grants to BEAR the right to include it in its client list. If the SOFTWARE is included in the Client’s management information system, the Client agrees and commits to provide the following statement on the main pages of its site(s) and mobile application(s) : “Powered by BEAR”.
The Client, unless it has received BEAR’s prior written consent, shall not, directly or indirectly, make any employment offers to any employee of BEAR or to hire such employee in any way whatsoever. Such commitment shall be in effect for the term of the License of the SOFTWARE plus a period of five (5) years as of its expiration. In the event of an infringement of the provisions of this clause, the Client shall be required to pay BEAR, as a penalty, a fixed amount equal to five (5) months of the latest growth monthly salary of the person to whom an offer is made or who is hired, plus the costs of recruiting a replacement.
With the exception of its obligation to pay the amounts owed, neither of the parties shall be held liable for delays in the performance of its obligations under an Order Form that may be due to events that are outside its responsibility, including any natural catastrophes, strikes, social strife, state of war, earthquake, fire, explosions, actions by the authorities, water damage, poor operation of or interruptions in the electricity or telecommunications networks, or any other event that as a result of its nature and intensity does not lead the industry as a whole to take special precautions. The expected performance times of these obligations will be postponed for the period of application of the event of “force majeure” (as defined under French law).
Any Order Form that is entered into under these General Terms and Conditions shall be construed according to French law, and any dispute arising out of it shall be brought before the courts with jurisdiction in the district of the Montpellier Court of Appeals (France).
If one provision of these General Terms and Conditions should be found by a court with jurisdiction to be invalid, inapplicable or illegal, such provision will be separated from these General Terms and Conditions and the remaining provisions shall remain in effect.
The Client shall not be entitled to assign or transfer the rights conferred upon it by these General Terms and Conditions and/or the license, in whole or in party, in any way whatsoever, irrespective of the goal sought, without BEAR’s prior written consent. The benefit of these GTC shall be transferred automatically to any successor of BEAR, as it shall be in the event of a change in BEAR’s capital structure.
All notice made to BEAR shall be sent to its registered office, as stated at the head of these GTC, by registered letter with return receipt requested, unless otherwise stated.
The fact that one party does not, on any occasion whatsoever, require strict adherence to any one obligation of these General Terms and Conditions shall not be deemed a waiver of one of the rights, and shall not deprive that party of the right to require strict adherence to such obligation or to such other obligation arising out of the General Terms and Conditions, at any time.
Effective from January 2015