Any sums of money the Client is charged, particularly by way of subscriptions, which the Client takes out for a period of 12 months minimum, are due and payable in full, for however long the Client uses the Services. The Client is under the obligation of paying the full amount due within thirty days after invoice date. All late payments shall automatically, and as of right, incur default interest on unpaid amounts, following the European Central Bank’s marginal lending facility interest rate applicable during the overdue period, plus 7%. Without prejudice to any other of its rights, Smartvisite reserves the right to suspend execution of the Contract in the event of sums owed on the due date not being fully paid, and can then suspend its supply of Services to the Client. Any failure on the Client’s part to pay for Services over a period longer than 3 months results in the entire Service fee having to be paid by rights over
4. DELIVERY DEADLINE
Delays in the execution of Services are given on an indicative basis only, without there being any contractual obligation. If Smartvisite is delayed or hindered from performing any of its contractual obligations due to acts or omissions emanating from the Client or their agents, or any third parties – including, but not limited to not providing specifications or any other information Smartvisite reasonably requires for the swift execution of its contractual obligations – the delay in execution and Service fee shall be revised accordingly by Smartvisite.
5. FORCE MAJEURE
Smartvisite may suspend the Contract, without any compensation being issued, if its execution is hindered or delayed for reasons beyond Smartvisite’s control, particularly in case of force majeure, war, riots, fire, explosions, accidents, flood, sabotage, shortages or delays in the provision of water, gas, electricity, labour, means of transport, total or partial unavailability of all or part of the technical resources required for Smartvisite to supply its Services, particularly IT tools or other means of communication, compliance with instructions, laws and regulations, government ordinances or measures, social conflicts, strikes, or dunning. If execution of the Contract or any part of the latter is suspended due to the present Article for more than 30 consecutive calendar days, Smartvisite may cancel the remaining part of the Contract which is yet to be executed, through a written notification sent to the Client, without any compensation being issued.
Smartvisite agrees to supply the Services which constitute the subject of the Contract in accordance with the service specifications Smartvisite has defined. Smartvisite cannot be held responsible for flaws revealed through the use of its Services resulting from a failure to follow the instructions Smartvisite has issued, changes made to Services which Smartvisite has not authorised in writing, or any breakdown of resources required for its Services to be performed. Smartvisite cannot guarantee the supply of Services in the event of all or part of its technical resources required to supply its Services being totally or partially unavailable, particularly IT tools or other means of communication (hosting, diffusion, etc.), or even due to inadequacies resulting from the Client or third parties. Expenses Smartvisite incurs for the search and correction of flaws are settled by the Client. The guarantee, by way of the present article, constitutes Smartvisite’s entire responsibility by way of the Contract, and the only compensation and damages the Client may claim by way of the guarantee covering Services or for any other noncompliance by way of the Contract. This guarantee is exclusive of any other guarantee or compensation the Client may claim in the event of Smartvisite failing to meet its obligations when it comes to enforcing the Contract. All other guarantees, be they implicit or legal, are excluded, including – and this list is not exhaustive – any commercial or suitability guarantee regarding specific-purpose Services.
7. INTELLECTUAL PROPERTY
Smartvisite remains the owner of all Intellectual Property Rights related to its Services. No intellectual property right is granted to the Client, except the right for the Client to use their Services in accordance with the Contract. The Client acquires no right regarding tools, processes, methods, or other forms of expertise used by Smartvisite either under the Contract or to which the Client might have access. The Client agrees to refrain from putting, directly or indirectly, on any grounds, in any form and for any reason whatsoever, the Intellectual Property rights they may have had access to when the Contract was being performed at the disposal of third parties, in whole or in part. The Client remains the owner of the intellectual property rights related to the information and other content they pass on, directly or indirectly, to Smartvisite, for the purpose of Smartvisite providing them its Services. The Client assures Smartvisite they own the intellectual property rights pertaining to the information and content which are required and adequate for the use Smartvisite makes of them by way of the Services it provides.
8. COMPENSATION PERTAINING TO INTELLECTUAL PROPERTY
Smartvisite agrees to defend, under its sole control and direction, any legal action which might be taken against the Client within the context of an Intellectual Property rights claim owing to the use of Services the Client has made during the performance of the Contract, and to pay for the expenses and damages the Client might be asked to settle by way of a sentence asserting Smartvisite’s Services have breached Intellectual Property rights, provided that the Client: (i) gives Smartvisite written notice as soon as possible, informing the company of an existing or upcoming complaint, (ii) provides Smartvisite with all the information and assistance it requires for a defense to be built and the dispute be resolved, (iii) grants Smartvisite control over the procedure and decisions enabling the company to settle the dispute. In the event of a sentence asserting a breach of Intellectual Property rights being passed within enforcement of the preceding paragraph, Smartvisite agrees, to its sole discretion and at its own expense, (i) to replace the infringing product, (ii) to secure the right for the Client to keep using the infringing product, (iii) to agree to the infringing product being returned and to refund the amount the product cost to the Client, (iv) or to terminate the Contract and repay the Client the amount the latter paid Smartvisite for the exploitation of those rights contravening the Contract. Smartvisite cannot be held responsible if the breach of Intellectual Property rights is justified or results: (i) from the Product being used with a product or any other process or service Smartvisite does not provide the Client, (ii) from the Product being modified by an entity other than Smartvisite, (iii) or from the Product being used with other infringing processes. Smartvisite shall not be under the obligation of paying the Client compensation under the terms of the present article in cases where: (i) the Client has, without Smartvisite’s prior written consent, confessed or taken any measure which might prove detrimental to Smartvisite within the context of such a complaint or action, or (ii) the Services have been changed without Smartiviste’s prior written consent. The present article defines Smartvisite’s global responsibility and the sole compensation the Client can claim in the event of Intellectual Property rights being breached by way of the Contract, which are exclusive of any other responsibility or compensation, be it direct or indirect, express or implied, legal or conventional. Smartvisite cannot in any case be held responsible for the damage – be it direct or indirect, consecutive or nonconsecutive, including commercial, technical or financial damage – that might result from the infringement of intellectual property rights by way of the Contract. The Client agrees to compensate Smartvisite for any expenses or loss the company might have incurred as a result of actions taken out regarding Intellectual Property rights (patent, brand, copyright, etc.), resulting from Smartvisite having complied with any specification or instruction the Client issued, or having used any information or content the Client passed on to Smartvisite under the Contract, and to defend Smartvisite in the event of legal action being taken against the company, provided that Smartvisite: (i) gives the Client written notice informing them of the action that is being taken against the company, and enable the Client to withstand action with the advice of their choice, (ii) provide the Client with all the information, assistance and powers the Client requests and which are required for a defense to be built and the dispute be resolved, at the Client’s expense.
Smartvisite is expressly subject to a “best endeavours” obligation. In the event that Smartvisite’s responsibility might possibly be called into question, the latter shall be limited to the sole guarantees provided for in the Contract under the “GUARANTEES” article. Smartvisite can only be held liable in the event of a breach of contract being proven and assessed by a judge. Should Smartvisite be sentenced to pay a fine, and this for whatever reason, the damages the company shall be sentenced to pay are limited to the amount Smartvisite actually received by way of those Services which are the direct cause of the damage behind which Smartvisite’s liability shall have been assessed. In any case, each sentence is limited, by way of the Contract being executed, to the amount Smartvisite actually received by way of the Contract throughout the year the incident was recorded or the problem holding the company liable occurred. Smartvisite’s full sentence is limited, in a global way, to the amounts Smartvisite actually received by way of the Contract. Regardless of it being otherwise stipulated in the Contract, all claims relating to compensation, loss of revenue, consequential or incidental damages, or potential losses the Client or third parties may have suffered, or consequences resulting from claims, complaints or other actions a third party might take against the Client or Smartvisite are excluded.
The Client may terminate the Contract regarding all or part of the Services, on condition that the Client sends Smartvisite reasonable prior notice to this end and repays Smartvisite for any losses (including, but not limited to the loss of expected profits), damages and expenses, and lack of income for Smartvisite resulting from such a termination. In particular, the entire amount which has been charged by way of the Service subscription the Client has taken out or the invoicing of flat sums shall be owed by the Client, however long the latter used the Services. Should an article, paragraph or other provision in the Contract be declared invalid under the terms of the law, the aforementioned provision shall be deemed omitted without it ever affecting the validity of the other provisions in the Contract. The Client is not entitled to transfer their rights or obligations set out herein without Smarvisite’s prior written consent.
11. GOVERNING LAW AND JURISDICTION
The Contract is governed by and subject to French law. ANY CONTENTION OR DISPUTE WHICH THE PRESENT CONTRACT MAY GIVE RISE TO, BE IT REGARDING ITS VALIDITY, ITS INTERPRETATION, ITS EXECUTION, ITS TERMINATION, THEIR CONSEQUENCES AND THEIR REPERCUSSIONS, WHICH WERE UNABLE TO BE RESOLVED BY MUTUAL AGREEMENT WITHIN THIRTY DAYS SHALL BE SUBMITTED TO THE JURISDICTION OF THE COMMERCIAL COURT SMARTVISITE’S HEAD OFFICE COMES UNDER, EVEN IN THE EVENT OF THERE BEING MULTIPLE DEFENDANTS AND THE INTRODUCTION OF THIRD PARTIES.