SUBSCRIPTION SERVICES AGREEMENT
The Subscription Services Beta Service is still under development and testing.
PREDICSIS has not made any Subscription Service Beta Service generally available as a formal PREDICSIS product available for purchase by its customers (“GA Service”).
You should not place the Beta Service into a production environment.
This Beta/Pre-Release Subscription Services Agreement (“Agreement”) governs your use of the Beta Service (as defined below). This Agreement is between the entity or individual entering into this Agreement (“Customer”) and PREDICSIS S.A.S, a corporation organized and existing under the laws of France, having its principal offices at 5, rue Louis de Broglie, 22300 Lannion, France (“PREDICSIS”).
BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE BETA SERVICE.
PREDICSIS and/or its affiliates and licensors owns the beta, alpha or other preliminary version of all PREDICSIS Subscription Services available from PREDICSIS website http://www.predicsis.com, related documentation, software and any pre-generally available updates, new versions and upgrades, if any (collectively, the “Beta Service”), or has the rights to license use of the Beta Service, and is willing to grant to Customer a limited license to access and use such Beta Service, on the following terms. “Subscription Services” means the hosted service which packages web-based access and the right-to-use the supported applications and APIs and associated reference, user and technical guides. You may not access the Beta Service if you are a PREDICSIS direct competitor, except with PREDICSIS prior written consent. If you do not agree to the terms of this Agreement, or if you do not have the authority, then you must stop using the Beta Service.
The Agreement is effective between Customer and PREDICSIS as of the date of your acceptance (the “Effective Date”). This Agreement was last updated on November 16th, 2014.
BETA LICENSE. Subject to the terms of this Agreement and the Restrictions on Use set forth below, PREDICSIS grants to Customer, from time to time a worldwide, non-exclusive, non-sub-licensable, non-transferable and limited right for End Users to access and use the Beta Service in accordance with the terms of this Agreement, solely for the purpose of performing internal testing of the Beta Service. “End Users” means individuals (i) who are authorized by Customer to use and access the Beta Service, and (ii) who have been assigned unique user identifications and passwords by Customer. Customer is responsible for End Users’ compliance with this Agreement.
RESTRICTIONS ON USE
Customer agrees NOT to:
- use the Beta Service to process production data, or where it may be used as would the GA Service;
- use the Beta Service with data or information that has not been backed up;
- modify, copy or create derivative works based on the Beta Service;
- create Internet “links” to or reproduce any content forming part of the Beta Service, other than for its own internal non-production business purposes;
- disassemble, reverse engineer, or decompile the Beta Service or part thereof, or access it in order to copy any ideas, features, content, functions or graphics of the Beta Service;
- interfere with or disrupt the integrity or performance of the Beta Service;
- send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material via the Beta Service;
- send or store viruses or malicious code via the Beta Service;
- attempt to gain unauthorized access to the Beta Service or its related software, systems, platforms or networks;
- use any components provided with the Beta Service separately from Beta Service;
- access the Beta Service for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes;
- sell, distribute, rent, lease, sublicense, display, modify, time share, outsource or otherwise provide the Beta Service to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data;
- release any results of performance tests related to Beta Service to any third party without PREDICSIS prior written consent;
- modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any Beta Service; or
- use the Beta Service for any purpose other than as specifically provided in this Agreement.
- Customer will be responsible for maintaining the confidentiality of the passwords assigned to Customer. Customer will immediately notify PREDICSIS if it becomes aware that a password is lost, stolen, disclosed to an unauthorized third party, or otherwise compromised. Customer will be responsible for any and all activities under Customer’s account and/or using Customer passwords. Customer will (i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Beta Service, and notify PREDICSIS promptly of any such unauthorized access or use, and (ii) comply with all applicable laws in using the Beta Service.
Customer is responsible for complying with all legal requirements, in the respect of the law and order, including applicable privacy laws and regulations, relating to the collection, use, processing and transfer of Customer Data. “Customer Data” means all electronic data or information submitted by Customer to the Beta Service. Customer acknowledges and consents that the Beta Service provided may require Customer Data to be transferred to a country outside of Customer’s country or the country where the Customer Data originated. Customer acknowledges and consents that any Customer Data transferred to PREDICSIS can be lost at any time, without the Customer can protest of damages of whatever nature.
Customer shall promptly provide to PREDICSIS, in writing, any relevant feedback on the functionality and performance of the Beta Service and any test results (together, the “Feedback”). PREDICSIS or its affiliates owns all Feedback relating to the Beta Service. Customer hereby assigns to PREDICSIS all rights, title and interest in the Feedback and all intellectual property therein. If requested by PREDICSIS, Customer agrees to execute such further instruments as PREDICSIS may reasonably request confirming PREDICSIS ownership interest in such Feedback.
PROPRIETARY RIGHTS AND CONFIDENTIALITY
PREDICSIS, its affiliates or licensors retain all rights, title and interest to the Beta Service and all related intellectual property and proprietary rights. The Beta Service and all third party software provided with the Beta Service is protected by applicable copyright, trade secret, industrial and other intellectual property laws. PREDICSIS owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports and any other items used to deliver the Beta Service or made available to Customer as a result of the Beta Service (“Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. PREDICSIS reserves any rights not expressly granted to Customer in this Agreement.
“Confidential Information” means all proprietary or confidential information that is disclosed by PREDICSIS to Customer, and includes, among other things (i) any and all information relating to the Beta Service or services provided by PREDICSIS, its financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) the terms of this Agreement; and (iii) Feedback. Confidential Information does not include information that Customer can show: (A) was rightfully in Customer’s possession without any obligation of confidentiality before receipt from PREDICSIS; (B) is or becomes a matter of public knowledge through no fault of Customer; (C) is rightfully received by Customer from a third party without violation of a duty of confidentiality; or (D) is or was independently developed by or for Customer. Customer may not disclose Confidential Information of PREDICSIS to any third party or use the Confidential Information in violation of this Agreement. In the event Customer becomes legally compelled to disclose any Confidential Information, Customer shall provide PREDICSIS with prompt prior written notice of such requirement so that PREDICSIS may seek a protective order or other appropriate remedy. If such protective order or other remedy is not obtained, or if PREDICSIS waives in writing compliance with the terms of this Agreement, Customer agrees to furnish only that portion of the information which Customer is advised by written opinion of counsel is legally required and to exercise reasonable efforts to obtain confidential treatment of such information. Customer (i) will exercise the same degree of care and protection with respect to the Confidential Information that it exercises with respect to its own confidential information, and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information. Notwithstanding the foregoing, Customer may disclose Confidential Information to Customer’s employees and agents who have a need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
If Customer becomes aware of any unauthorized use or disclosure of Confidential Information, then Customer will promptly and fully notify PREDICSIS of all facts known to it concerning such unauthorized use or disclosure. In addition, if Customer or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of the Confidential Information, Customer will not disclose the Confidential Information without providing PREDICSIS with commercially reasonable advance prior written notice to allow PREDICSIS to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, Customer will exercise its commercially reasonable efforts to preserve the confidentiality of the Confidential Information, including, without limitation, cooperating with PREDICSIS to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
The license of Section 1 granted under this Agreement terminates on the earlier of:
- Thirty (30) days after Customer’s being granted access to the Beta Service, or
- Immediately upon PREDICSIS notice of termination for convenience.
Upon termination of any license or this Agreement, all rights and licenses granted herein will terminate and Customer shall cease accessing or using the Beta Service. Sections 3, 4, 5, 6, and 7 survive the termination of any Beta Service license or this Agreement. Customer Data may be lost upon termination as indicated to article 2.c.
If a GA Service is announced that replaces a Beta Service and Customer desires to acquire a license to access and use that GA Service, then Customer must acquire access to that GA Service under the then-current subscription service terms with PREDICSIS or its appropriate subsidiary or affiliate.
DISCLAIMER OF WARRANTY, LIMITATION OF LIABILITY and exclusive remedy.
THE BETA SERVICE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. PREDICSIS, ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT ANY BETA SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS, THAT ANY BETA SERVICE IS WITHOUT DEFECT, ERROR FREE OR WITHOUT DELAY, OR THAT THE OPERATION OF ANY BETA SERVICE WILL BE UNINTERUPTED. PREDICSIS, ITS AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, MADE WITH RESPECT TO THE BETA SERVICE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT; AND
PREDICSIS DISCLAIMS AND REJECTS ANY LIABILITY TO CUSTOMER, OR ANY OTHER INDIVIDUAL OR ENTITY, FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE BETA SERVICE (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF PREDICSIS HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. PREDICSIS ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE BETA SERVICE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY CUSTOMER TO LICENSE THE APPLICABLE BETA SERVICE OR 100 €.
If a third party asserts a claim against PREDICSIS asserting that the Customer Data or Customer’s use of the Beta Service in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights, or otherwise harms the third party (“Claim”), Customer will, at its own expense: (i) defend or settle the Claim; and (ii) indemnify PREDICSIS for any damages finally awarded against PREDICSIS based on the Claim.
No-Guarantee as to New Versions.
Customer acknowledges and agrees that PREDICSIS is under no obligation to provide any maintenance releases, updates or new versions of the Beta Service. PREDICSIS does not guarantee that any Beta Service will become a GA Service. If a GA Service is announced replacing a Beta Service, PREDICSIS does not guarantee that the GA Service will be similar in functionality to the comparable Beta Service version licensed under this Agreement. This Agreement creates no obligation on behalf of Customer to acquire any GA Service, or for PREDICSIS to provide any GA Service to Customer.
Entire Agreement and Modifications.
This Agreement is the entire understanding between Customer and PREDICSIS and replaces any prior or contemporaneous communication, agreement or understanding of any kind, oral or written, concerning this subject matter. This Agreement may only be changed if mutually agreed to in writing by the parties. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. The terms located at a URL referenced in this Agreement and are incorporated by reference into the Agreement. After the Effective Date, PREDICSIS may provide an updated URL in place of any URL in this Agreement
If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Agreement, and the terms at any URL.
Enforceability, Non-Waiver and Non-Assignment
If any part of this Agreement is found to be invalid or unenforceable, that part will be modified to the extent necessary to eliminate its invalidity or unenforceability, and the remaining terms will be in full force and effect. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Customer may not assign or otherwise transfer this Agreement or any of its rights or obligations without the prior written consent of PREDICSIS.
This Agreement is governed by the laws of France. All arbitration proceedings shall be held in Paris, France but at first, the Parties make a commitment to submit any disputes relative to this Agreement in an attempt of mediation. This mediation will be confided in the Center of Mediation of Rennes which can be seized by the most diligent party. The expenses of mediation will be supported by each of the Parties in equal shares.
Nothing in this Agreement will be construed as creating a joint venture, partnership, franchise, fiduciary, employment or principal/agent relationship between the parties.
Third Party Code
The Beta Service may contain both open source code (“Open Source”) and proprietary third party code (together “TPS”) which is delivered to Customer as part of the Beta Service and may not be taken out of the Beta Service or used separately from the Beta Service (“Embedded TPS”). Embedded TPS is included in the defined term “Beta Service” and is covered by all of the terms of the Agreement, including but not limited to, the warranty and indemnification responsibilities of PREDICSIS. Some terms related to Embedded TPS may be included in the Documentation due to requirements of the TPS licensor, however these terms will not (1) impose any additional restrictions on Licensee’s use of the Beta Service, or (2) negate or amend the PREDICSIS responsibilities with respect to the Embedded TPS in the Beta Service (or the Beta Service itself). If the Open Source is also distributed separately by PREDICSIS pursuant to requirements by the owner of the Open Source, then Licensee may separately use the Open Source and such use will be subject to the separate license agreement that accompanies the Open Source and not the PREDICSIS Agreement.
Facilities and Data Transfer
All Customer Data entered or uploaded to network resources owned and operated by PREDICSIS shall be transmitted via Secure Sockets Layer (SSL), using HTTPS. All internal PREDICSIS service calls and data transfers are similarly encrypted via SSL/SSH.
PREDICSIS extensively utilizes Amazon Web Services (AWS) infrastructure (http://aws.amazon.com). All application data, including all Customer Data, is securely stored in AWS facilities according to industry Best Practices with respect to computer application Security and Privacy. See the AWS Security site (http://aws.amazon.com/security/) for information about AWS security and privacy capabilities and policies, including information on physical site security and data redundancy/availability capabilities.
Customer acknowledges that PREDICSIS neither requires nor needs Customer to (i) send PREDICSIS any personal data collected by Customer (“Customer Collected Personal Data”) or (ii) give PREDICSIS access to any Customer Collected Personal Data. Consequently, Customer remains responsible for either filtering, making anonymous, encrypting such Customer Collected Personal Data or for having proper procedures in place to prevent Customer Collected Personal Data from being sent to or accessed by PREDICIS.
Customer and PREDICSIS are independent contractors for all purposes regarding this Agreement. Customers do not have any agency, franchise or fiduciary relationship with PREDICSIS under this Agreement.
No third party beneficiaries
This Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this agreement.
This Agreement constitutes the entire Agreement concerning its subject matter and supersedes any prior or contemporaneous communications.