| GeometryFactory |
The General Business Terms and Conditions of GeometryFactory Sarl ("GeometryFactory") are integral and substantial part of any contract between GeometryFactory and its customer ("Customer"). The terms and conditions hereinafter take precedence over Customerīs general business terms (if any), as far as there are differences in stipulations.
The general terms, attachments and any related transaction documents (such as the license terms or an invoice), are the complete agreement, and supersede all prior communications or agreements, both oral and written between the parties. Oral additional agreements between Customer and GeometryFactory require for legal effectiveness confirmation in writing by GeometryFactory.
Customer agrees to be bound by all terms and conditions hereinafter by using or paying for any of GeometryFactory's products or services.
Customer shall pay GeometryFactory fees set forth in a separate license agreement.
Invoices shall be made out in accordance with then-current prices which are online accessible. GeometryFactory may change charges at any time. Such changes are not retroactive.
Invoices shall be paid within 30 days after the date of invoice. Amounts are payable without deduction as specified on the invoice or the transaction document. Customer agrees to pay accordingly, including any late payment fee.
Any costs incurred because of delayed payment like court and lawyers fees or administration costs are charged to Customerīs account.
Duties and shipment costs are on Customerīs account.
Customer is obliged to support GeometryFactory's efforts where it is necessarily required to fulfill its obligations. Particularly Customer provides GeometryFactory with access to any platform, documents, and data, if GeometryFactory determines that this is necessary for realization of its obligations.
Customer accounts for the correctness and sufficiency of all transferred materials, and for the compliance of all transferred materials with legal, fiscal and organizational requirements and obligations.
Customer provides a contact person that is at GeometryFactory's disposal and has authority and power of decision.
GeometryFactory, including its employees and subcontractors, assumes responsibility for the fulfillment of its contractual obligations. GeometryFactory is liable for any direct damage deliberately or grossly negligent caused in connection therewith and for any damage which under applicable mandatory law may not be excluded or limited. Under no circumstances will GeometryFactory be liable for any consequential, indirect or incidental damages or lost of profits, whether forseable or unforseable, based on claims of Customer or its clients (including but not limited to claims for loss of data, goodwill, use of money, interruption in use or availability of data) arising out of breach of failure of express or implied warranty, breach of contact, misrepresentation, negligence or otherwise. This provision shall not be interpreted, construed or used for the benefit of any insurance consultant or insurance agency.
In no event will the aggregate liability which Customer may incur in any action or proceeding exceed the total amount actually paid to GeometryFactory by the Customer during the last twelve (12) months.
Customer notes that GeometryFactory's software is neither developed nor intended for high risk activities such as in the operation of nuclear facilities, aircraft navigation or traffic control, direct life support machines, or weapon systems, in which the failure of the software could lead directly to death, personal injury, or severe physical or environmental damage. Any liability therefore is excluded.
Customer agrees that claims of third parties against Customer cannot be forwarded against GeometryFactory.
Neither party will incur any liability to the other party on account of any loss or damages, resulting from any delay or failure to perform all or any part of this agreement, if such a failure or delay is caused by an event of force majeure, by events, occurences or causes beyond the control and without neglicence of the parties. Such events, occurences or causes will include without limitations: acts of God, strikes, lockouts, riots, acts of terrorism, acts of war, acts or omissions of other parties, acts or omissions of civil or military authority, changes in law, material shortages, earhquakes, fires and explosions, floods, epidemics, quarantine restrictions, delays in transportation or inability to obtain labor or materials through its regular sources, interruption in telecommunication network or electricity network. GeometryFactory's time for performance of any such obligation shall be extended for the time period of such delay or GeometryFactory may, at its option, cancel any order or remaining part thereof without liability by giving notice of such cancellation to Customer.
GeometryFactory warrants and covenants with Customer that the licensed software, unless modified, will perform in accordance with the published specifications ("Specifications") for a period of six months from delivery (the "Warranty Period"). In the event the software does not perform in accordance with Specifications, Customer shall notify GeometryFactory. Upon notification of a problem, GeometryFactory shall acknowledge and fix the problem within a reasonable time period following the standard rules covered by French law.
Any bug report has to be provided with a short but complete program that shows the problem. Customer provides GeometryFactory with relevant data to reproduce the problem and with a complete problem description. GeometryFactory will not start investigation before the required programs are available. GeometryFactory will not support any program that is modified by Customer.
GeometryFactory will provide Customer with all bug fix releases for any bugs contained in the licensed software and with all patches to the software it provides without charge to any of its licensees.
Any support has to be especially ordered by Customer. Customer needs a valid license for the software that shall be supported by GeometryFactory. Customer is entitled to purchase support at a later date than purchase date of the corresponding license provided that in the meantime no new version of the software has been released.
Effective date of the support contract is invoice-date. The support contract shall run for a period of twelve (12) months from effective date, provided that there is no renewal of the support contract.
Customer can but is not obliged to renew the support contract after termination.
The price for twelve (12) months support is twenty (20) per cent of supported product price pursuant then-current list prices.
GeometryFactory will support the latest version of the software which is licensed by Customer up to the termination of the support agreement. Older versions of the software will be supported at the latest until one month after the delivery of a newer version to Customer.
Customer is fully responsible for contact with its customers who are using programs developed using the software.
Obligations of GeometryFactory:
GeometryFactory maintains an email address and a fax number for Customer to contact GeometryFactory and to send messages to report problems and receive assistance.
GeometryFactory maintains qualified personnel to provide timely and knowledgeable support service.
GeometryFactory provides Customer with technical support for the software.
GeometryFactory provides information and assistance to Customer in the event GeometryFactory determines a problem related to the software.
GeometryFactory provides instructions for implementation except for instructions that are based on creative intellectual processes.
GeometryFactory provides Customer with bug fixes or workarounds in case of software bugs.
GeometryFactory provides Customer with the upgrade version in case of software upgrades.
GeometryFactory agrees to accept special development orders related to the supported software for an appropriate fee. Customer can but is not obliged to place such development orders with GeometryFactory. GeometryFactory is entitled to call in subcontractors to fulfill its obligations.
Obligations of Customer:
Customer provides a contact person that has to be fixed in writing and can be changed by written notice.
Customer maintains qualified personnel that is skilled to use the software.
In case of bugs Customer provides GeometryFactory with a bug report. Any bug report has to be provided with a short but complete program that shows the problem. Customer provides GeometryFactory with relevant data to reproduce the problem and with a complete problem description. GeometryFactory will not start investigation before the required materials are available.
Customer provides GeometryFactory with access to any platform and program if GeometryFactory determines that this is necessary for realization of its support obligations.
Customer is obliged to support GeometryFactory whenever GeometryFactory depends on such help to fulfill its obligations.
Error classification is proposed by Customer. GeometryFactory may reject and redetermine error classification if the classification is not substantiated argued.
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The error classification "critical" means that Customer experiences real or perceived data loss or corruption or an essential part of the software is unusable for the customer. Unusable means that Customer can't use an essential part of the software because of a defect of the software. Essential parts of the software are those that customers need to use the software.
The error classification "serious" means that Customer's effectiveness is severely compromised for an essential part of the system although all essential parts of the system can be used. That means that Customer has to spend large effort in order to implement a workaround for a defect of the software.
The error classification "low" means that all essential parts of the system can be used. Customer can circumvent the problem and use the system with only slight inconvenience.
"Acknowledge Time" is the time for answering theCustomer by email or phone call or fax to scope and define the problem. Acknowledge time starts when Customer has completely provided the necessary information.
"Resolution Time" is the time for making further attempts to resolve the problem and providing Customer with the results (this may but not has to include a full solution). The times given in the table do not apply to products that are declared as "experimental", or to pre-releases.
In cases the problem is not due to the software (incorrect usage, errors in the user's application, errors due to modifications of Customer, etc.) GeometryFactory does not have to provide a solution but is willing to make suggestions as an act of fair dealing.
Either Party undertake not to disclose to any third party any confidential information disclosed by the other party and to undertake to ensure that all their employees comply with this obligation.
Customer is obliged not to affect the independency of GeometryFactory's staff. This means in particular that Customer will not submit any offer to employees of GeometryFactory, neither offers of employment nor offers to undertake the tasks for own account.
GeometryFactory may revise these terms and conditions at any time and reserves the right to change any of the terms and conditions contained in this agreement at any time and in its sole discretion. Notice of all changes will be provided by incorporation of the changes into the agreement at http://www.geometryfactory.com/gbtc.html.
Customer agrees that it is its responsibility to check the web site for the purpose of determining if there is a change to the agreement. GeometryFactory may also provide other written notice to Customer of any such change. Changes are not retroactive.
If any provision of this agreement is determined to be invalid, unlawful or unenforceable, it shall be declared void or unvalid but such decision will not affect the validity or enforceability of the remaining provisions.
GeometryFactory may mention the name of the Customer as reference customer for external communication needs.
All modifications or extensions of this agreement need to be put down in writing and have to be stated expressis verbis. No right under this agreement shall be assigned by either Party without the prior written approval of the other Party.
Contracts between GeometryFactory and Customer will be governed and construed in accordance with the laws of France.
In the event of a dispute ensuing from the interpretation or the performance of this agreement, the Parties undertake to initially seek a friendly solution. If such a solution cannot be reached, the dispute will be for the exclusive competence of courts of Grasse, France. GeometryFactory also reserves the right to start legal action at the court of jurisdiction at Customer's legal business domicile or place of residence.