The Client has the possibility, in addition to the acquisition of equipment (hereinafter the Products) from EVERNEX (hereinafter « EVERNEX ») to conclude with EVERNEX a maintenance contract which general terms and conditions are defined below.
Any subscription of preventive and/or corrective maintenance services (hereinafter the "Services") are expressly and exclusively governed by these general terms and conditions. These general terms and conditions are systematically sent or remitted to each Client in order to enable the subscription of Services proposed by EVERNEX. As a consequence, ordering Services implies for the Client full and unconditional acceptance of these general terms and conditions of maintenance. These general terms and conditions shall prevail over any general terms and conditions of purchase or particular conditions set by the Client in its purchase orders or any other commercial documentation, irrespective of any clause to the contrary. The fact that EVERNEX does not challenge provisions of the Client's purchase order and/or any other documentation at a point in time cannot be construed as a waiver to avail itself of these terms and conditions of maintenance at a later stage.
For the purpose of these general terms and conditions of maintenance, the following terms, whether used as a singular or a plural, shall have the meaning below:
– «Services»:Preventive and/or corrective maintenance services provided by EVERNEX, as defined in the particular conditions.
– «Default»: Any dysfunction or non-conformity of the Product compared to the documentation of reference, which prevents the normal use of all or part of the Product's functions, or which causes an inaccurate result or an inappropriate treatment, whereas the Product is operated by the Client in compliance with its documentation and destination.
– «Critical Default»: Default preventing the use of an essential function of the Product.
– «Major Default»: Default impacting an essential function of the Product without preventing totally its use.
– «Minor Default»: Default which is neither Critical nor Major, which causes a disruption of minor or ancillary functions of the Product.
Services provided by Evernex include, depending on modalities and options defined in the particular conditions :
– A corrective maintenance, which consists for Evernex to ensure, at Client's request, that the good functioning of the Product which is the object of the maintenance contract is restored in case of Defect.
– A preventive maintenance, which consists for Evernex to ensure that the good functioning of the Product which is the object of the maintenance contract is maintained and verified. The frequency of preventive maintenance depends on options chosen by the Client, as defined in the particular conditions.
In the performance of maintenance Services, whether preventive or corrective, Evernex uses all means that can reasonably enable to maintain or restore the normal operation of the Product which is the object of maintenance Services: labor, testing appliances, tools and, if necessary, supply of spare parts whether new or equivalent in order to replace the Product's defective parts, correction of program, modification of the documentation or any other mean that may prevent the repetition of the Defect. If the Client's request is caused by an incident which is not imputable to the Product, Evernex shall charge the treatment of the incident at an hourly rate, based on related tariffs applicable at the time of the intervention.
Services of corrective maintenance are performed within the time limits defined in the particular conditions, depending on the options chosen by the Client and the gravity of the Default (Minor, Major or Critical).
Services are in any event performed in compliance with provisions relating to quality of service (« Service Level Agreement » or « SLA »), inserted in the particular conditions or contained in a separate agreement.
Unless provisions to the contrary in the particular conditions, the maintenance contract is concluded for a one (1) year period as from its date of signature. It cannot be terminated before its term except in case of serious breach of contract imputable to either Party.
In case of anticipated termination by the Client with no serious breach of contract imputable to EVERNEX, and/or in case the Client removes equipment from the scope of the maintenance contract, causing EVERNEX's revenue to be decreased by 25% or greater, the Client shall pay to EVERNEX an indemnity equal to investments and costs of inventory incurred for the purpose of the maintenance Services on the pro rata basis of the remaining period until the contract's annual term.
The following services are expressly excluded from Evernex's responsibilities and from the scope of Maintenance Services covered by this agreement:
i) Any maintenance services relating to software, including notably, without limitation, maintenance on networks or computer systems such as software programs, diagnostics of software defaults, new versions or updates of software or programs;
ii) The repair of any damage, default, shortcomings or disruption caused by a geographical, physical or technical environment which does not conform to the manufacturer's instructions and specifications or which results :
– From non-compliance with applicable rules and regulations notably in security matters,
– From an accident (including fire and floods) or natural disasters,
– In case of Force Majeure, as defined in article 12.5 below,
– From defective installation or use, defective supply of electricity for the equipment, defective control of temperature or local humidity, defective use, management or control of equipment by the Client, or from the use of the equipment for other purposes than the one for which they are destined;
– From the Client's negligence,
– From the use of spare parts which do not comply with the manufacturer's instructions,
– From the addition or connection of equipment, parts or components non included in the list of compatible equipment and not authorized by the manufacturer,
– From a default – even temporary – in the supply of energies or fluids that are necessary for the good functioning of the equipment; – from the intervention of a third party or technical services other than Evernex's ( including the Client's technical service). Is formally excluded the maintenance of equipment which has been the object of attempts or repairs, changes, modification, correction, or any distortion by the Client itself without Evernex's prior and express approval. This is also valid for any intervention or repair by a third party for maintenance services not provided by Evernex; – from disruptions affecting or resulting from the Client's equipment, servers, exploitation systems, accessories, stationery, consumables (including batteries, cartridges, piles etc…) not supplied by Evernex;
iii) Any intervention in relation to Products which is not mentioned in the particular conditions;
iv) The technical modification of the equipment;
v) The verification, control and compliance to rules and regulations in force, and of the geographical, physical and technical environment in which the Products are located;
vi) Moving and reinstallation of all or part of the Products;
vii) The restoration of files in case of accidental destruction or due to the presence of a virus;
viii) The safeguarding of files and data captures;
ix) The maintenance of modems / telephone lines;
x) The supply of platinum impressions, drums, batteries, alimentations, etc. and other accessories such as tapes and records;
xi) The replacement of SSD Drives that have reached their maximum amount of data.
xii) The supply of accessories or consumables for printers, such as maintenance kits, alimentation rolls, ink cartridges, toners, ribbons, heads of thermic printing, cleaning kits for head printings, and scanner lamps;
xiii) Services of training, installation, support and assistance which may be proposed by Evernex under specific contracts of training, installation, support and assistance;
xiv) Visits of sites in addition to those referred to in the particular conditions for preventive maintenance or which fall under the corrective maintenance Services subscribed by the Client.
Any service other than preventive and corrective Services which would be entrusted to Evernex by the Client will be charged by Evernex at the applicable tariff for assistance services.
Unless provisions to the contrary in the particular conditions, maintenance fees are payable annually, a term in advance.
Unless otherwise specified on the invoice, payments are due at the latest thirty (30) days after the date at which the invoice is issued. Evernex reserves the right to demand immediate payment and/or payment guarantees when defaults of payment or the Client's financial situation justify it.
Liquidated damages, computed on the basis of three (3) times the legal interest rate, are applied automatically to amounts overdue beyond the above mentioned time limits.
Any Client who is in a situation of overdue payment shall also be automatically liable for, in addition to liquidated damages, a lump sum indemnity for recovery costs amounting to forty (40) euros (Art. L.441-6 and D.441-5 of the French Code of Commerce). If recovery costs exceed this lump sum, EVERNEX shall be entitled to demand a complementary indemnification.
In addition, any delay in payments shall entail automatically for the Client an indemnity fixed as a penalty clause at 10% of the maintenance price without VAT.
These damages and indemnities shall be due at EVERNEX's simple request.
In case of failure by the Client to pay any instalment mentioned on the invoice, the full price of the Product shall become by right and immediately payable as well as any amount that would remain outstanding.
Failure to pay the sums due within sixty (60) days of the issuance of the invoice shall also entail automatically and by right, without former notice, the suspension of maintenance Services until all outstanding amounts are paid in full. Such a suspension shall entail no discount or reimbursement of the annual maintenance fees.
In case of late payment, any payment that would be due for other deliveries or services shall become immediately due if EVERNEX does not decide to cancel the related orders.
EVERNEX shall retain any advance payment made by the Client, without prejudice to any complementary damages or interests that could be claimed by EVERNEX as a remedy.
Invoices can be questioned within sixty (60) days of their date of issue. Beyond that period, they are considered as accepted and cannot be disputed any more. No discount shall be granted in case of anticipated payment.
During the performance of the agreement, the Client shall, at its own costs:
7.1 Store the Products in a geographical, physical and technical environment complying with regulations in force and the manufacturer's instructions ;
7.2 Allow free access of Evernex's representative(s) to the equipment, during maintenance hours and ensure that each intervention can take place in compliance with applicable rules and regulations, notably for security matters ;
7.3 Ensure that at least one of its employees or agents is present during each maintenance intervention by Evernex ;
7.4 Put at Evernex's disposal the resources that are necessary for the performance of the maintenance Services: contact with the related technical unit at Evernex (by telephone and computer), supply of electricity, etc… ;
7.5 Ensure, prior to each maintenance operation, that all necessary precautions were taken for the protection and saving of data, programs and computer files, and that it took all measures to ensure their safety and confidentiality;
7.6 Ensure that no repair or intervention of any nature is performed on the equipment by any technical service other than Evernex services ;
7.7 Collaborate in full transparency with Evernex and communicate to Evernex all necessary documents and information for the good performance of Services.
7.8 Provide the remote connection capabilities to equipment as per Evernex specifications when it is stated to be an absolute pre-requisite to the availability of maintenance services on certain equipment during the sales phase;
7.9 Unless specifically agreed otherwise, Evernex keeps the ownership of all replaced components/parts during the execution of its Maintenance services, and is formally entitled to keep it following the intervention, to the exclusion of any part that may contain customer sensitive data.
8.1 It is expressly understood and agreed that EVERNEX's obligation under this agreement is to do its best efforts for the performance of maintenance Services.
The Client hereby waives any right of action against EVERNEX in case of damage to the data basis, the computers' memory or any other document, equipment or program that it may have entrusted to EVERNEX in relation to maintenance works or after exploitation is resumed further to EVERNEX's intervention.
The Client shall perform a backup of all data, documents, files, programs and other supporting documents before any maintenance intervention.
8.2 EVERNEX shall not be held liable for any indirect damage (including notably, as agreed between the parties and without limitation, any operating losses, losses of files, programs and/or data, losses of profits, contracts, clients, or turnover) that could be potentially incurred by the Client as a result of EVERNEX's failure to abide by its obligations in relation to the maintenance Services and/or the installation, use or dysfunction of a Product.
8.3 In all events, EVERNEX's liability for damages of any kind suffered by the Client, is expressly and strictly limited to five percent (5%) of the maintenance fee without VAT effectively paid by the Client to EVERNEX for the calendar year during which the damage occurred.
The maintenance contract shall take effect on the date mentioned in the particular conditions. It is concluded for a one (1) year period, which shall be tacitly renewed unless terminated by either Party by registered mail with acknowledgment of receipt three (3) months before the contractual term.
The maintenance contract can be terminated before its term by either Party in case of serious breach of contract that would not be remedied within thirty (30) days of the notification sent to the defaulting party by registered letter with acknowledgment of receipt.
EVERNEX shall also be entitled to terminate the maintenance contract in case of insolvency, dissolution, total or partial cessation of activity of the Client, or in case of receivership, liquidation of similar procedure affecting the Client subject to provisions of articles L.622-13 and L.631-14 of the Code of Commerce.
Termination or cessation of this contract shall not affect contractual provisions which are reputed to survive the Parties' contract.
The Client acknowledges that any information, data and business documentation of any nature, methods, know-how, source codes, manufacturing processes used or implemented by Evernex under this agreement, are and shall remain Evernex's exclusive property and shall be kept strictly confidential.
As a consequence, the Client commits not to disclose such information, data and documentation to any third party, and/or not to exploit them for its own account or on behalf of any third party without Evernex's prior and express consent.
The Client undertakes to return to Evernex at the latter's first request, all information, data and documentation received from Evernex for the purpose of this agreement.
The Client shall cause its commercial partners, employees or agents to abide by a confidentiality obligation identical to the one set forth in this agreement and shall hold harmless and indemnify Evernex for any breach of such confidentiality obligation by commercial partners, employees or agents.
This confidentiality obligation shall survive termination of contractual relationships between the Parties and shall bind the Client until the related information, data and/or documents fall into the public domain.
During the term of the maintenance contract and for a duration of two (2) years as from its termination or cessation for whatever cause, the Client commits not to solicit, hire, employ or appoint whether directly or indirectly any Evernex's employee or Evernex's independent contractor without Evernex's prior and express approval.
In case of breach of this commitment, the Client shall pay to Evernex a lump sum equal to the gross salary or fees without VAT paid by Evernex to the related employee or independent contractor over the last twelve (12) months.
These general terms and conditions constitute, together with the particular conditions, the maintenance contract governing the relationships between the parties. In case of contradiction or difficulty of interpretation the particular conditions shall prevail. The maintenance contract shall only be modified by an amendment in writing, signed by both Parties.
Should one clause of these general terms and conditions be declared illegal or void by a competent Court ruling according to the law applicable to this contract, this clause shall be reputed modified in order to reflect, as much as possible, the Parties' initial and common intent in compliance with applicable law, the other contractual provisions remaining fully in force.
It is expressly agreed that no failure or delay on the part of either Party in invoking any provisions of this agreement shall operate as a waiver thereof. Any waiver of any provision hereof shall in any event be the object of an amendment in writing signed by both Parties.
It is expressly agreed that the Client shall not assign or transfer its rights and obligations under this agreement without Evernex's prior and written consent.
Evernex shall not be considered as defaulting when performance of its obligations has been delayed, disrupted or prevented by a case of Force Majeure out of the reasonable control of Evernex, its suppliers or service providers. Shall notably be considered as events of Force Majeure excusing non-performance of Evernex's obligations: any cause beyond Evernex's control including, without limitation, fire, strikes, floods, epidemics, natural disasters, quarantine restrictions, wars, transport disruption, shortage of labor, raw materials or means of production.
These terms and conditions of sale are drawn up in both French and English language. In case of contradiction or difficulties of interpretation, the French version shall prevail.
These general terms and conditions of maintenance, the particular conditions and the resulting operations of maintenance are governed by French Law, to the exclusion of any rule of conflict of law. The application of the United Nations Convention on International Sales of Goods executed in Vienna on April 11th 1980 is formally excluded.
Any dispute relating to the interpretation or application of these general terms and conditions of maintenance as well as any dispute relative to the commercial relationships between the Parties shall fall under the exclusive jurisdiction of Courts of the corporate office of Evernex, whatever are the accepted payment modalities, including in case of injunctive procedure (« référés »), requests for orders (« procédure sur requête »), action in guarantee or plurality of defendants and notwithstanding any clause to the contrary.