GENERAL TERMS AND CONDITIONS OF LICENCE AND ASSOCIATED SERVICES
4D markets software that it owns, as well as software packages designed and developed by other authors. The software offered by 4D consists of standard products intended to meet the needs of as many customers as possible.
The Customer, seeking to acquire new IT tools, wished to be able to use software offered by 4D for the purpose of his/her/its professional activity.
In the context of its duty to inform and advise, 4D has provided the Customer with a commercial proposal and/or documentation presenting the 4D Products, which the Customer acknowledges having read. It is the Customer’s responsibility, in particular on the basis of this information, to ensure that the 4D Products are suitable for his/her/its specific needs and constraints. To this end, the Customer may request any additional information from 4D and/or attend an additional demonstration of the 4D Products prior to accepting the Agreement, failing which the Customer acknowledges having been sufficiently informed. No specifications or statement of needs drawn up by the Customer may under any circumstances be taken into account by 4D in the context of the Agreement unless 4D expressly validates it before signing this document and it is included in the appendix to this Agreement.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
TITLE I – DEFINITIONS AND PURPOSE
For the purposes hereof, capitalised terms and expressions shall have the meaning set out below, whether used in the singular or plural.
“CUSTOMER” means the legal entity or natural person entering into the Agreement with 4D and acting in the context of his/her/its professional activity.
“AGREEMENT” means either:
- The set of contractual documents comprising several parts and several documents, namely the “Items Ordered” part, the “Purchase Order” part, the “SEPA Mandate” part where applicable and filled in, these general terms and conditions of licence and associated services as well as the Technical Prerequisites.
- The online order, validated by an authorised person of the Customer, comprising the items ordered, the quantities, the prices, the SEPA Mandate where applicable, these general terms and conditions of licence and associated services as well as the Technical Prerequisites.
The general terms and conditions of licence and associated services and the Technical Prerequisites may be consulted and downloaded from the 4D website (https://us.4D.com) and may also be sent to the Customer at the latter’s request, thus complying with Article L441-6 of the French Commercial Code, which stipulates that service providers must communicate by any means consistent with standard practices within the profession.
“EFFECTIVE DATE” means the effective date of the Agreement, when 4D collects payment made by the Customer for any purchase of 4D Products.
“DOCUMENTATION” means the information made available by 4D describing how to use the 4D Products.
“TECHNICAL ENVIRONMENT” means the information system (in particular the software, hardware, communication networks, etc.) in the Customer’s possession prior to the delivery and integration of the 4D Products. The Technical Environment, allowing the Software to operate under normal conditions of use, must comply with the Technical Prerequisites.
“4D SOFTWARE” means the software developed by 4D and marketed by 4D.
“TECHNICAL PREREQUISITES” means the latest version of the list of characteristics of the Customer’s information system or the Customer’s IT hardware and devices recommended by 4D and suitable for use of the 4D Products, to be implemented and complied with by the Customer so that the 4D Products operate under normal conditions of use. The Technical Prerequisites are subject to change and the latest updated version is available at any time on the 4D website (https://fr.4D.com) or any other website address provided by 4D. The Customer is responsible for upgrading its hardware and IT systems in accordance with changes to the Technical Prerequisites.
“4D PRODUCTS” means both the 4D Software and the Author Software Package(s) referred to in the 4D Store or in the online order as well as their Documentation.
“AUTHOR SOFTWARE PACKAGE(S)” means the standard software package(s) referred to in the 4D Store or in the online order, designed and developed by authors other than 4D and for which 4D has a distribution right allowing it to grant the Customer rights of use.
“4D STORE” means the online store accessible via the 4D website (https://fr.4d.com) for the purchase of 4D Products.
“DATA PROTECTION REGULATIONS” means all current and future laws and regulations in force in France regarding the protection of personal data, in particular the version of Law No. 78-17 of 6 January 1978 (the French Data Protection Act) in force on the signing of the Agreement and/or as subsequently revised, as well as Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (GDPR).
“4D”: means 4D SAS and its subsidiaries on or after the effective date of the Agreement and benefiting from the Agreement pursuant to a stipulation for others.
- Any Software Follow-up service(s);
- Any training in 4D Products organised by the relevant 4D teams and offered to the Customer during the performance of this Agreement;
- Any event organised by 4D in connection with 4D Products, such as the 4D Summit;
The Service(s) may only be provided by 4D insofar as the Customer has the necessary technical setup to enable remote assistance.
“SOFTWARE FOLLOW-UP” means a service giving access to corrective and upgradeable versions of the 4D Software provided by 4D during the performance of the Agreement, as specified in the “Items ordered” part or in the online order. The upgradeable version of the 4D Software is provided as part of a fixed annual subscription subscribed to by the Customer. The corrective version is available free of charge on the 4D website at https://fr.4D.com for any purchase of a 4D Software licence, and for the version purchased only. “TERRITORY” means the scope of application of this Agreement, namely the world.
“USER” means any natural person authorised by the Customer and/or any logical or physical system duly authorised to use or access 4D Products pursuant to the Agreement, under the Customer's responsibility.
2. ACCEPTANCE OF THE AGREEMENT – PURPOSE
2.1 Acceptance of the Agreement
The Customer is deemed to have read the Agreement as defined in the Clause entitled “Definitions” and to have duly accepted it without reservation. The Agreement is unreservedly accepted by the Customer upon signature of the Purchase Order and/or the direct debit authorisation in paper form or upon conclusion of the online order referring to these General Terms and Conditions of Licence and Associated Services, constituting acceptance of the entire Agreement.
Any amendment to these General Terms and Conditions of Licence and Associated Services shall be subject to special terms and conditions duly accepted and signed by both Parties. Failing this, any modification or alteration made to the pre-printed part of the Agreement (Purchase Order, Items Ordered) shall be deemed null and void.
For the purpose of accepting the Agreement remotely, the Customer acknowledges and accepts that faxes signed by one of its representatives or agents and received by 4D constitute written proof and may be validly enforced against him/her/it by 4D. Acceptance of the Agreement by electronic means shall have the same probative value as the agreement on paper. Records stored in computer systems shall be kept under reasonable security conditions and shall be considered as evidence of communications between the Parties. Contractual documents must be archived on a reliable and durable medium that may be produced as proof.
The purpose of this Agreement is to set out the terms and conditions under which 4D grants the Customer the right to use the 4D Products and undertakes to provide the Customer with the Services referred to in the Agreement. Technical support services for the 4D Products, excluding corrective and upgrade maintenance, will be the subject of a so-called “4D Partner Programme” agreement separate from this agreement.
3. ENTRY INTO FORCE
The Agreement shall enter into force on the day on which 4D collects payment by the Customer of the price stipulated in Clause 12.1 of this Agreement. The licence to use the 4D Products is granted in accordance with the terms described in Clause 4 below, entitled “Licensed Rights”.
TITLE II - PROVISIONS RELATING TO THE LICENSE
4. RIGHTS GRANTED
4.1 Ownership of 4D Products
4D is the holder of all intellectual property rights relating to the 4D Products, their respective Documentation and the updates provided in execution of the Service. 4D represents that it has the right to distribute and/or sub-license the Author Software Packages that are, where applicable, provided to the Customer in connection with this Agreement, and which remain the property of their author. No ownership rights are transferred to the Customer pursuant to the Agreement, either in respect of 4D Software or Author Software Packages. Any 4D Product supplied hereunder remains the property of 4D or its author.
4.2 Right to use 4D Products - Term
For the purposes hereof, 4D grants to the Customer, subject to full payment of the price defined in Clause 12.1 hereof and as set out in the sections entitled “Items Ordered” and “Purchase Order” or in the online order, a personal, non-exclusive, non-assignable and non-transferable right to use the 4D Products referred to in the “Items ordered” part or in the online order. This right of use is granted under the conditions and limits defined in the “Items ordered” and “Purchase Order” sections or in the online order.
The right to use the 4D Products is granted to the Customer as from the date on which the 4D Products are made available and for the legal duration of copyright protection pursuant to the laws governing intellectual property.
4.3 Named licences
Unless stipulated otherwise, the right to use the 4D Products is granted to the Customer for a number of named Users and/or for any other work units expressed in the form of quantities, thresholds or ceilings, as determined in the “Items ordered” part or in the online order and, where applicable, in the Service Booklet.
- Individual users designated by the Customer who have a personal username and password and who can use the 4D Products for professional use;
- and/or logical or physical systems accessing and processing data with the 4D Software Package.
Any change in the number of Named Users and/or work units is subject to 4D’s express approval and, where applicable, to payment of an extra fee in addition to the rate in force.
The Customer acknowledges and accepts that the scope of the rights of use granted for each of the 4D Products covered by the Agreement constitutes a unique and non-divisible concession.
4.4 Restrictions on rights of use
In accordance with Article L122-6-1 I of the French Intellectual Property Code, and independently of the provisions relating to the Service, 4D reserves the right to correct any errors in 4D Products. The author concerned reserves the right to correct any anomalies in the Author Software Packages.
As part of the assignment of rights granted to the Customer by 4D, the Customer undertakes not to infringe, in any way whatsoever, directly or indirectly, the property rights of 4D or the author of the Author Software Packages. Consequently, the Customer shall refrain in particular from:
- Using 4D Products in a manner that does not comply with their intended purpose and the conditions set out in the Agreement, in particular in a non-professional context;
- Deleting any information concerning copyright, trademarks or any intellectual property right that may appear on the 4D Products;
- Disabling, circumventing or in any way infringing any technical protection measures that may be included in the 4D Products and attempting same;
- Any reproduction or representation of 4D Products in any form whatsoever, in particular by modification or inclusion in another software or software package and/or modification of their Documentation;
- Any reproduction other than a backup copy where necessary to protect the use of the Software or in accordance with Article L122-6-1 II of the French Intellectual Property Code and subject to informing 4D thereof, it being specified that any backup copy remains the exclusive property of 4D or, for 4D Products, of the authors thereof;
- Any translation, adaptation, arrangement or modification of 4D Products;
- Any reproduction of the code or decompilation of 4D Products; - Disclosing the content thereof; - Transferring his/her/its right of use for any reason whatsoever.
The Customer guarantees that its personnel and Users will comply with these provisions.
The Customer is informed that use contrary to the intellectual property rights of 4D and/or the authors of the Author Software Packages, as granted pursuant to this clause, may result in 4D immediately terminating his/her/its right to use the 4D Products in accordance with the laws in force and bringing action for civil liability against it, in addition to the criminal liability that it may also have incurred for infringement. In any event, the Customer will remain liable towards 4D for any breach of the foregoing undertakings, whether as a result of its actions or as a result of its service providers or any other person acting on its behalf.
5. AVAILABILITY - INSTALLATION
5.1. The 4D Products are made available to the Customer in the form of object codes, in the online order via a download link. The Customer is solely responsible for installing and implementing the 4D Products.
5.2. The Customer undertakes to accept the ordered 4D Products as soon as they are made available, insofar as they comply with what was ordered under this Agreement. If the Customer does not inform 4D in writing of any non-compliance of the 4D Products with the Agreement, giving reasons therefor, within five (5) days of their being made available, the Customer is deemed to have irrevocably accepted the 4D Product(s) without reservation. Where a refusal of availability is not expressed in the required forms and deadlines and/or is unjustified, 4D shall be entitled to claim the total amount of the order from the Customer.
6. USE OF 4D PRODUCTS
The Customer is solely responsible for the use it makes of the 4D Products made available to it by 4D under the Agreement and for controlling and managing their use by Users as well as the use of any results that may be obtained from them.
The Customer is responsible for:
- The prior or future choice and acquisition from third parties of hardware, software packages and software destined for use with the 4D Products. 4D will not be liable for any incompatibilities with the elements ordered under the Agreement or any malfunctions or disruptions thereto;
- Project management of its IT systems in the event of multiple suppliers chosen by it;
- Compliance with the Technical Prerequisites (present and future) in order to avoid damaging consequences such as slowdowns, blockages and alterations to the Customer’s data. 4D waives liability for any loss suffered by the Customer as a result of use of 4D Products with software and/or IT equipment incompatible or not compliant with the Technical Prerequisites;
- All consequences for 4D Products covered by the Agreement resulting from modifications decided and/or made by the Customer, its installation or its environment;
- The production of any additional settings and their use, as well as any subsequent malfunction of the 4D Products resulting therefrom, except where such settings were produced by 4D as part of the Service.
The Customer is informed that 4D is not responsible for the quality, availability and reliability of the telecommunications networks, whatever their nature, in the event of data transport or Internet access, even where the Internet service provider is recommended by 4D. 4D also waives liability for any loss suffered by the Customer as a result of:
- Use of the 4D Products by the Customer in a manner that does not comply with the provisions of their Documentation, the Agreement and/or any instructions that 4D may have communicated to the Customer,
- Use of the 4D Products with software and/or IT equipment incompatible or non-compliant with the Technical Prerequisites,
- Work carried out on 4D Products by any third party not authorised to do so in advance by 4D.
The Customer will remain responsible for the safekeeping of all hardware, 4D Products, Customer Data, files, programs and databases during any work carried out by 4D.
7. TECHNICAL MEASURES FOR MONITORING AND VERIFYING USE OF THE 4D PRODUCTS
The Customer is informed that 4D reserves the right to use one or more of the following devices to ensure that the Customer’s use of 4D Products complies with this Agreement: (i) a monitoring mechanism and/or (ii) a licensing mechanism. The Customer is not authorised to neutralise the implemented mechanism(s).
In the event of the implementation of a licence activation mechanism, the Customer is responsible for installing and updating the licence activation system, as the relevant 4D Products cannot operate without a valid and up-to-date activation mechanism.
4D may carry out an on-site or remote audit once a year in order to verify the proper use of the licences and whether the Customer is complying with the terms of this Agreement. In order to determine the appropriateness of such an audit, the Customer notably authorises 4D to collect any relevant information via the use of tracking tools or a safety mechanism inserted in 4D Products.
4D will notify the Customer in writing of its intention to have an audit carried out subject to a minimum notice period of fifteen (15) days. 4D will include in this notice:
- the identity of the audit body selected, in the case of an auditor external to 4D;
- the 4D Products concerned by this audit.
The Customer undertakes to actively cooperate in this audit, in particular by giving 4D access to any relevant information and by providing the means necessary to carry out the audit, in particular, where applicable, by activating the monitoring mechanism mentioned in the “Technical Measures for Monitoring and Verifying Use of the 4D Products” clause. It is expressly agreed that the Customer shall bear any costs incurred in collaborating with this audit .
The results of the audit will be set out in an audit report prepared by 4D, which must be sent to the Customer so that he/she/it can read them and make his/her/its observations within seven (7) days. This audit report will record the necessary regulation if necessary.
In the event of a dispute, the Parties undertake to try to find an amicable solution before taking any legal action.
In the event that the audit reveals use in excess of the granted rights, the additional fees associated, where applicable, with an adjusted invoice covering all periods since the breach occurred will be invoiced to the Customer, as well as the audit costs incurred by 4D. Furthermore, if the Customer uses a function or option for which it has not acquired rights, 4D will invoice the additional fees at their rate in effect at the time.
The Customer undertakes to pay within thirty (30) days of the invoice issue date. In the absence of payment within the aforementioned deadlines, 4D may automatically terminate this Agreement and thereby revoke the licences granted, and take any legal action it sees fit.
The Customer's information collected over the course of the audit operations will be considered confidential information within the meaning of the “Confidentiality” clause below, and may only be used for the purposes of the audit and any necessary adjustments and/or in the event of legal proceedings.
ning of the “Confidentiality” clause below, and may only be used for the purposes of the audit and any necessary adjustments and/or in the event of legal proceedings.
9. COMBATING FRAUD
The Customer warrants that it uses 4D Products supplied by 4D in compliance with applicable laws and regulations, in particular as regards tax. In particular, in the event that 4D is held jointly and severally liable by the tax authorities for the payment of tax adjustments due to the irregular use by the Customer of the 4D Products made available to it, the Customer undertakes to fully compensate 4D, i.e. up to the amounts claimed by the authorities.
TITLE III –PROVISIONS APPLICABLE TO SOFTWARE FOLLOW-UP
10. SOFTWARE FOLLOW-UP - TERM
As part of the Services, all Software Follow-up services are entered into for an initial period of one (1) year from the date of subscription by the Customer to said services and tacitly renewed for successive periods of one (1) year.
Termination of the licence to use the 4D Software for any reason whatsoever shall result in the immediate termination of the related Software Follow-up.
In the event of termination of the Software Follow-up service for any reason whatsoever and unless stipulated otherwise in the Agreement, the Customer acknowledges that the amounts paid by it for the Software Follow-up service are not reimbursable, and that such termination does not release it from paying the amounts due to 4D under the Agreement on that date.
The Customer may only terminate Software Follow-up by sending 4D a registered letter with acknowledgement of receipt at least thirty (30) days before the end of the current annual Software Follow-up period. Such termination shall not release the Customer from its contractual liability for events occurring prior to such date.
In addition, in the event of non-performance or poor performance of any of the provisions relating to Software Follow-up and thirty (30) days after notification by one Party to the other by registered letter with acknowledgement of receipt remaining without effect in whole or in part, Software Follow-up may be terminated by registered letter with acknowledgement of receipt, without prejudice to any damages that may be claimed from the defaulting party.
In the event of termination of Software Follow-up, for any reason whatsoever, 4D shall be released from all its contractual obligations towards the Customer with regard to Software Follow-up.
The Customer is informed that legislative changes may render the functionalities of 4D Products inappropriate at any time. Insofar as the Customer has taken out a subscription relating to one or more Services and under the conditions provided for in the Agreement, 4D shall provide an update of the 4D Software so that it complies with the new legal provisions, provided that such adaptations or developments do not require the rewriting of a substantial part of the existing 4D Products.
The Customer is also informed that changes in technology, legislation and customer demand may lead 4D or the Author of 4D Author Products to produce updates to 4D Products or Author 4D Products which may lead to changes in the Technical Prerequisites. This may result in all or part of the Customer's hardware in its initial configuration no longer being compatible with an update of the 4D Products, for which 4D may not be held liable.
TITLE IV – FINANCIAL PROVISIONS
12. PRICES AND INVOICING AND PAYMENT PROCEDURES
The Customer must follow the invoicing procedures stipulated in Clause 12.2 and in accordance with the payment terms stipulated in Clause 12.3.
Prices are indicated the “Ordered Items” and “Purchase Order” parts or in the online order. All prices are stated exclusive of VAT and other taxes, duties, levies or charges payable by the Customer pursuant to the regulations in force on the issue date of the 4D invoice, and which will be borne solely by the Customer.
12.2. Invoicing procedures for 4D Products
4D Products will be invoiced as of their being made available in the form of a final purchase or subscription:
The subscription is annual, for a minimum of 2 users accessing the 4D application. It is possible to increase the number of users at any time, with pro rata billing. A reduction in the number of users is possible on the anniversary date of the Agreement, with an adjustment of invoicing the following year.
Renewal of the subscription is by tacit consent unless terminated in accordance with Clause 18 of these Terms and Conditions.
12.2.2. Price revision
4D may change the prices of the Agreement once per calendar year during the term of the Agreement.
In the event of a price revision relating to the Services and/or the licence granted by subscription to the 4D Products, and in the event of a refusal by the Customer of the increase in the amounts invoiced, the Customer may terminate the Service(s) concerned by the price revision by registered letter with acknowledgement of receipt sent within thirty (30) days from the issue date of the invoice containing the new amounts invoiced.
12.3 – Terms of payment
The 4D Product(s) purchased will be made available following payment of the items ordered by the Customer; unless specified otherwise.
The items ordered must be paid for up front, with no discount applicable, by any payment methods except by bill of exchange.
12.4. Payment default
In the event of a breach by the Customer of its obligation to pay the price agreed between the Parties, and without prejudice to any other action that 4D may take against the Customer to obtain compensation for the loss suffered as a result of this breach, 4D reserves the right, fifteen (15) days after the sending of a formal notice to pay, remaining without effect in full or in part, to suspend the Customer's right to use the 4D Products as well as any service in progress until payment has been made in full of the sums owed. The Customer agrees in advance that 4D may, in any circumstances and where necessary remotely, implement tools integrated into the 4D Products enabling it to carry out this suspension; and/or terminate the Agreement in effect as of right, pursuant to the “Termination” clause, without the need to give formal notice thereof.
Furthermore, 4D may invoice late-payment interest equal to three times the legal interest rate without the need for a reminder or prior notice. This interest will be calculated per day of delay from the first day of delay until the date of full payment by the Customer of all sums owed to 4D.
Pursuant to Article L441-6 of the French Commercial Code, the Customer will also be automatically liable to pay a fixed fee of forty (40) euros (€) in respect of recovery costs incurred by 4D. If applicable, where such costs exceed the amount of this fee, 4D may claim additional compensation from the Customer, upon presentation of supporting documents specifying the action taken. This compensation will not be applied in cases where the Customer can prove it is under receivership or judicial liquidation proceedings. Failure by the Customer to pay an invoice due will, furthermore, entitle 4D to demand payment of all other invoices, including those whose due date has not yet passed.
All non-payment costs following a bank rejection of a payment by the Customer shall be borne by the Customer.
12.5. General conditions
4D reserves the right to decide how partial payments made by the Customer will be deducted from sums owed to 4D.
The Customer shall refrain from offsetting any sums that may be owed to it by 4D under the Agreement, or any other agreement that may exist between the Parties, without the 4D’s prior written consent.
TITLE V – GENERAL PROVISIONS
13: PROTECTION OF PERSONAL DATA
4D undertakes, within the framework of this Licence Agreement for Use and Evaluation, to comply with the regulations in force applicable to the processing of personal data and, in particular, French Law No. 78-17 of 6 January 1978 on data processing, files and freedoms (the French Data Protection Act), as amended by Regulation (EU) No. 2016/679 of the Parliament and of the Council of 27 April 2016 applicable as of 25 May 2018, and any regulations supplementing, amending or replacing them (the “Data Protection Regulations”).
The Licensee hereby authorises 4D to collect and retain all personal data necessarily collected for the purposes of this Licence Agreement for Use and Evaluation (the “Personal Data”), including in particular:
- The Licensee’s surname and first name;
- The Licensee’s postal address;
- The Licensee’s e-mail address;
- - The Licensee’s Bank Data
- The Licensee’s telephone number(s)
The Personal Data collected by 4D will be subject to automated processing for the purposes of commercial prospecting and customer management, providing information about the 4D product and reporting errors (the “Types of Processing”),
The Personal Data collected are retained by 4D under conditions ensuring their safety and integrity, for the duration of the Licence for Use (excluding purchase and Evaluation Version) and for a period of 24 months thereafter for monitoring and customer management purposes.
The Personal Data collected are retained by 4D under conditions ensuring their safety and integrity, from the Effective Date of the Agreement and for a period of 24 months thereafter for the purposes of monitoring and customer management.
4D undertakes to register the Processing internally in a data processing register that it will make available to the Licensee.
In accordance with the Data Protection Regulations in force, Licensees have the following rights with regard to the Personal Data: right of access, right of rectification, right to erasure (right to be forgotten), right of objection, right to restriction of processing, right to portability. Licensees may also define directives relating to the conservation, deletion and communication of their Personal Data after their death.
To exercise their rights, Licensees must send a registered letter with acknowledgement of receipt to Legal Department - 4D SAS - Bâtiment 4, Parc Les Érables, 66 Route de Sartrouville, 78230 Le Pecq, France, or by email to the following address: firstname.lastname@example.org and must attach a copy of their ID.
Subject to a breach of the above provisions, Licensees are entitled to lodge a complaint with the CNIL (French data protection agency).
The Licensee is responsible for complying with the Data Protection Regulations for the operations he/she/it carries out and shall refrain from having any Personal Data hosted whose collection, processing, exploitation, duration or storage conditions for the purposes of the Software are illegal, unfair or in any way infringe the rights of third parties to this Licence Agreement for Use and Evaluation.
The proper performance of the Agreement and the proper performance of the Service require active and permanent collaboration in good faith between the Parties. Accordingly, each Party undertakes to:
- Be actively involved in the performance of its obligations;
- Refrain from any conduct likely to affect and/or hinder the performance of the obligations of the other Party;
- Provide each other in a timely manner, consistent with the deadlines agreed between the Parties, with all information and documents necessary for the performance of the Agreement;
- Alert each other as swiftly as possible in the event of problems and work together to implement the best possible solution as quickly as possible.
The Parties must meet as often as necessary to ensure the proper performance of the Agreement and, in particular, to verify the proper performance of the Service.
The Customer shall be responsible in particular for providing 4D with all information concerning him/her/it necessary to perform the planned Services and to inform 4D of any difficulties of which he/she/it may become aware or that his/her/its knowledge of his/her/its area of activity enables him/her/it to anticipate, as the Services are performed.
Furthermore, the Customer undertakes to maintain sufficiently competent, qualified and trained Users in place throughout the term of this Agreement.
It is the Customer’s responsibility to take all necessary precautions to guarantee the security, confidentiality and integrity of all data, including Data Protection, that it may process directly or indirectly in connection with the use of 4D Products and, in particular, to ensure that all measures necessary for the backup and reconstitution of its data have been taken in time. In this respect, the Customer is solely responsible for backing up the data it processes or stores and acknowledges that it is responsible for:
- Making regular backups of its data in the course of his/her/its daily use of the 4D Products and during the performance of the Services,
- Checking the content of the backups made at least once a week.
Similarly, the Customer must take all necessary measures to protect its information system, in particular as regards protection against viruses, worms and other hostile intrusion processes.
16. LIABILITY – INSURANCE
With regard to the performance of all of its obligations and given the state of the art in its profession, 4D, which undertakes to take all possible care in the performance of its obligations, is subject to an obligation of means.
4D may only be held liable for compensation for direct and foreseeable damage resulting from a breach of its contractual obligations, which does not include losses whose occurrence is not exclusively linked to the poor performance or non-performance of this Agreement. By express agreement between the Parties, the following constitutes indirect damage for which 4D may not be held liable: operating loss, loss of profit or any other financial loss resulting from the use or impossibility of using 4D Products by the Customer or a failure in the provision of the Services, damage to the Customer’s image, as well as any loss or deterioration of information for which 4D may not be held responsible. Any damage suffered by a third party constitutes indirect damage and may not give rise to compensation accordingly.
The Parties acknowledge that the price of the Agreement reflects the distribution of risks arising from the Agreement, as well as the economic balance desired by the Parties, and that the Agreement would not have been entered into under these conditions without the limitations of liability defined herein. The Parties expressly agree that the limitation of liability shall continue to apply even in the event of cancellation or termination of the Agreement.
17. 4D PRODUCT WARRANTIES
17.1. 4D Software Warranties
17.1.1. Warranty of peaceful enjoyment
4D shall hold the Customer harmless from and against any infringement action resulting from use of the 4D Software for the period during which the Customer benefits from the right to use the 4D Software. In order to benefit from this guarantee, the Customer must:
- Have informed 4D immediately in writing of any claim and/or infringement action relating to one or more 4D Software applications;
- Have placed 4D in a position to defend its interests on a discretionary basis, in particular by providing all the elements, information and assistance necessary to conduct its defence,
- Refrain from negotiating with the third party in question or its representatives with a view to reaching an amicable agreement without the 4D’s prior approval.
In the event that the relevant 4D Software(s) can no longer be used by the Customer as a result of such action, 4D may, at its own expense and at its discretion:
- Obtain the right for the Customer to continue using the 4D Software, or
- Replace the 4D Software with a software package (or, where applicable, documentation) that is not the subject of an infringement action, or
- Modify the 4D Software so as to avoid any infringement.
4D undertakes to bear any damages the Customer may be ordered to pay pursuant to a final court decision notified by the Customer to 4D within the limits set in the “Liability” clause.
The 4D hold harmless warranty is not applicable to the 4D Software where:
- The 4D Software has been used in a way that is not expressly authorised by the Agreement,
- The 4D Software has been modified by the Customer,
- The Customer continues to use the 4D Software even though it has been notified by 4D of the existence of an allegation of infringement or the latter has provided it with an update that would have enabled it to avoid the alleged infringement.
17.1.2. Compliance warranty
4D guarantees compliance by each 4D Software with its Documentation for a period of six (6) months as from its availability to the Customer.
4D does not guarantee that the 4D Software is free from any defect or hazard but undertakes solely to remedy, with all reasonable diligence, any anomalies observed in the 4D Software in relation to their Documentation. 4D provides no warranty as to the absence of anomalies in 4D Software. Neither does 4D guarantee that the latter can operate without interruption.
The 4D Software compliance warranty is expressly limited to compliance with its Documentation and may not be extended to guarantee compliance with the specific needs or a specific business of a Customer or User. 4D does not guarantee the ability of 4D Software to achieve objectives that the Customer has set itself or to perform specific tasks that motivated it in its decision to use the technology. It is therefore the responsibility of the Customer or any third party instructed by the Customer to ensure that the 4D Software is suitable for its specific needs or business in the territory where the 4D Software is used.
To the extent permitted by law, any warranty other than those expressed in this clause is expressly excluded.
17.2. Warranties concerning the Author Software Packages
As an exception to the foregoing with regard to 4D Software, the Author Software Packages provided hereunder are not guaranteed by 4D.
17.3. Warranties provided by the Customer
The Customer shall hold 4D harmless from and against any action by a third party resulting from the use by 4D of any software package or software made available to it by the Customer under the Agreement. In this respect, the Customer shall bear the cost of any damages which 4D may be ordered to pay in this respect.
18. END OF THE AGREEMENT
Each party may terminate this Agreement by notifying the other party by registered letter with acknowledgement of receipt, without the latter’s prior consent, in the event of a breach by the latter of any of the provisions of the Agreement not remedied within thirty (30) days of such notice.
4D may also terminate the Agreement by notifying the Customer by registered letter with acknowledgement of receipt in the event that (i) the Customer breaches any of the provisions of Clause 4 of the Agreement and/or in the event that (ii) the Customer has not paid the fees invoiced in accordance with the terms of the Agreement.
The Customer may also terminate a licence for the 4D Product(s) at any time and without any particular reason, provided it gives 4D prior notice by registered letter with acknowledgement of receipt. Such termination shall not release the Customer from its contractual liability for events occurring prior to such date.
In the event of termination of the Agreement, for any reason whatsoever, 4D shall be released from all its contractual obligations towards the Customer. The Customer must, for its part, return to 4D the product number of the 4D Product(s), cease using the 4D Product(s) and destroy or return the 4D Product(s) and Documentation to 4D, as well as any complete or partial copy that may have been made of the 4D Product(s).
In the event of termination of the Agreement for any reason and unless provided otherwise in the Agreement, the Customer acknowledges that the amounts paid by Customer for the relevant licence are not refundable and that such termination does not release Customer from paying on such date the amounts due to 4D under the Agreement.
Similarly, termination of the Agreement does not deprive 4D of any other right or action resulting from the Agreement.
The Customer must certify in writing, duly signed by its legal representative, that the provisions of this clause have been complied with within five (5) days of the termination or expiry of the Agreement.
The subscription must be terminated expressly and in writing, 30 days before the anniversary date of the Agreement. Otherwise, the subscription will be automatically renewed for one year.
Finally, it is understood that termination of the licence to use one or more 4D Products for any reason whatsoever shall result in the immediate termination of the related Software Follow-up. Conversely, the termination of one or more Services for any reason does not result in the termination of the licence to use the 4D Products.
19. FORCE MAJEURE
Neither Party may be held liable for any breach of its contractual obligations if it has been prevented from performing its obligation by a force majeure event as defined in Article 1218 of the French Civil Code. The Parties expressly agree that the following events constitute force majeure events within the meaning of this clause: a governmental decision, including any withdrawal or suspension of authorisations of any kind, a total or partial strike internal or external to 4D, the judicial liquidation of one of its suppliers or subcontractors, a fire, a natural disaster, a state of war, a total or partial interruption or a shutdown of the telecommunications or electrical networks, and computer hacking.
In such cases, the Party invoking force majeure shall notify the other Party by registered letter with acknowledgement of receipt, as soon as possible, of the occurrence of such an event and the necessary extension of the deadlines for the performance of its obligations.
If the impediment is temporary, the performance of the obligation will be suspended until the Party invoking force majeure is no longer prevented by the force majeure event. The Party invoking force majeure must keep the other Party informed and undertakes to do its utmost to limit the duration of the suspension. In the event that the suspension continues after a period of three (3) months, each Party shall be entitled to terminate the Agreement without compensation by notifying the other Party of its decision by registered letter with acknowledgement of receipt.
If the impediment is permanent, the Agreement will be automatically terminated and the Parties will be released from their obligations under the conditions provided for in Articles 1351 and 1351-1 of the French Civil Code.
All information, data, deliverables and/or know-how, whether or not covered by intellectual property laws, in whatever form and whatever the nature thereof (commercial, industrial, technical, financial, etc.), transmitted by one Party (the “Owner”) to the other Party (the “Recipient”), or of which they become aware during the performance of the Agreement, including the terms and conditions of this Agreement, shall be considered as confidential (hereinafter the “Confidential Information”).
Information (i) which was in the Recipient’s possession prior to its disclosure by the Contractor without such possession resulting directly or indirectly from the unauthorised disclosure of such information by a third party, (ii) which is in the public domain on the date of acceptance of the Agreement or which falls into the public domain after such date without the cause being attributable to the Recipient’s failure to comply with its confidentiality obligations under the Agreement, or (iii) which is arrived at independently by the Recipient, is not considered to constitute Confidential Information.
The Recipient undertakes to use the Owner’s Confidential Information only in the performance of this Agreement, to protect the Owner’s Confidential Information and not to disclose it to third parties other than its employees, agents, affiliates and subcontractors who need to know it for the performance of this Agreement without the prior written consent of the other Party.
The Parties undertake to take all necessary measures to ensure that their employees, agents, subsidiaries and subcontractors having access to Confidential Information are informed of the confidential nature of the Confidential Information communicated and comply with the obligations arising from this clause.
The Recipient may disclose the Contractor’s Confidential Information to a third party if such disclosure is strictly required by law or by a competent judicial or administrative authority, or is strictly necessary to defend the interests of either Party in the context of legal action.
Any breach of the undertakings made in this clause by the Recipient would constitute a serious breach of its obligations, incur its liability and entitle the Owner to compensation for the harm thus suffered.
The Parties undertake to comply with the obligations resulting from this clause throughout the term of the Agreement and for five (5) years following the expiry or termination of the Agreement.
In this respect, as soon as this Agreement expires or is terminated, each Party shall either return to the other Party all documents containing Confidential Information, or assure the other Party of the destruction of all Confidential Information in its possession. Under no circumstances may a copy of the documents containing Confidential Information be retained by a Party unless the other Party agrees otherwise in writing.
Le Client accepte que 4D puisse, librement et sans formalité préalable, sous-traiter tout ou partie de ses obligations au titre des présentes. In the event of subcontracting, 4D shall remain solely responsible for the proper fulfilment of its obligations under the Agreement.
The Agreement, as well as the rights and obligations it provides, may be assigned by the Customer, whether in whole or in part, for consideration or free of charge, subject to the 4D’s prior written agreement.
4D may freely and without the need for any formalities assign or transfer the Agreement, as well as the rights and obligations it provides. As of the written notification of the assignment to the Customer, 4D will be released from its obligations under the Agreement and may not be held jointly and severally liable for the assignee's performance of the Agreement.
23. MISCELLANEOUS PROVISIONS
23.1. Independence of the Parties
Each Party is a legally and financially independent legal entity acting in its own name and under its sole responsibility. This Agreement does not constitute an association or agent agreement granted by one Party to the other. Each Party shall therefore refrain from making any commitment in the name and on behalf of the other Party, which it may under no circumstances substitute.
23.2. Entire agreement
The Parties acknowledge that the Agreement and all the terms and conditions incorporated by reference herein, constitutes the entire agreement between them relating to the subject matter of the Agreement and supersedes all prior verbal and/or written commitments made between the Parties relating to the same subject matter. The Agreement thus prevails over any other document, including any general terms and conditions of purchase of the Customer. Except as expressly provided herein, the terms and conditions and obligations of this document shall prevail over all others.
These T&C are only proposals and 4D remains open to any negotiations with its Customers, before signing the quote rendering the T&C enforceable.
4D reserves the right to modify its T&C at any time and to publish them on the 4D website (https://fr.4D.com). In the event of a change to the T&C, the applicable T&C are those in force on the signature date of the quotation, a copy of which dated the day in question may be provided on request.
If one or more non-substantive provisions of the Agreement are held to be invalid or declared as such pursuant to a law, regulation or following a final decision by a competent court, the other provisions shall remain in full force and effect.
The fact that one of the Parties does not invoke a breach by the other Party of any of the obligations referred to in the Agreement may not be interpreted for the future as a waiver of the obligation in question.
Each Party remains the sole owner of the know-how that it possesses independently of this Agreement or that it acquires during the performance of this Agreement, and therefore remains free to use it. 4D will therefore be free to perform similar services or services on behalf of other customers. Neither Party may claim any right over the other Party’s know-how.
23.7. Commercial reference
The Customer authorises 4D to freely cite its name and to use and/or reproduce its logo and/or brands as a commercial reference in commercial documents and press announcements in any form and on medium whatsoever, as well as on the documents used and/or produced by 4D in connection with the Agreement.
24. GOVERNING LAW AND JURISDICTION
All provisions contained in this Agreement are governed by French law.
If the Parties are unable to settle their dispute amicably within 15 (fifteen) days following receipt by one Party of a dispute resolution request sent by the other, they agree to submit any dispute, controversy or claim relating to this Agreement to the exclusive jurisdiction of the French courts.