GUID: A/Q-13579642

Equipment, Software and Support Services Procurement Contract

Quake Inc.
Acme SARL
Effective Date: October 23, 2016

By and Between:

- a Delaware Corporation, (ELF Code: XTIQ) registered at Wilmington, Delaware, United States of America with the identity number LLC-564738291,
- whose principal place of business is 233 Curtis Street, Menlo Park, CA 94025, United States of America,
- represented by Mr. Solomon Shirley, its President and Chairman,
- herein referred to as "{_P1}",
- a N/A société par actions simplifiée, (ELF Code: 6CHY) registered at Paris, Ile de France, France with the identity number RCS PARIS 453 983 245,
- whose principal place of business is 101 rue Partout, Paris, IdF 75001, France,
- represented by Ms. Abigail Altima, its Gérant,
- herein referred to as "{_P2}",

Each a "Party" and collectively the "Parties."

This Equipment, Software and Support Services Procurement Contract (this "Agreement") is made as of October 23, 2016 ("Effective Date"), by and between the Parties.

Recitals

The Customer is a logistics company
The Manufacturer is a maker of inventory management equipment
Duly informed of the expectations and requirements stated by the Customer, the Manufacturer confirmed its ability to fulfill said needs and to provide the ordered goods and services, specifically in accordance with the costs and solutions as specified in the present Contract.

THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:

Definitions
For the purposes of this Agreement, the following terms are defined as hereinafter:
- “Actual Count” means Actual User Count, as applicable based on the licensing model identified in the applicable Purchase Order.
- “Agreement” means this Equipment, Software and Support Services Procurement Contract, the attachments and exhibits hereto, and any terms incorporated herein by reference.
- For a Party, “Applicable Law” refers to those laws and regulations directly applicable to such Party.
- “Beneficiaries” refers to the Customer as well as the Customer Affiliates.
- “Customer Affiliate” means any entity Controlling, Controlled by or under common Control with the Customer, for as long as such Control continues to exist.
- “Control” and its grammatical variants means: (i) a general partnership interest in a partnership; or (ii) the beneficial ownership of a majority of the outstanding equity entitled to vote for directors; or (iii) the power to direct or cause the direction of the management and policies of such entity whether by contract or otherwise; or (iv) having equal to or more than a forty-percent (40%) stake in that entity.
- “Customer Representative” means the Customer, any Customer Affiliate and any employee or contractor of Customer (and/or any Customer Affiliate) to whom Customer (and/or any Customer Affiliate) provides a copy of any Software (or any component thereof) for use on behalf of and for the benefit of Customer (and/or any Customer Affiliate) and for Customer’s (and/or any Customer Affiliate’s) internal business purposes, subject to all the terms and conditions of this Agreement.
- “Documentation” refers to the written and/or electronic end user or technical documentation pertaining to specific Software and/or Equipment that is provided by Manufacturer to Customer together with the delivery of the Software and/or Equipment.
- “Effective Date” refers to the last date of signature date for this Agreement.
- “Equipment” refers to any Manufacturer-branded hardware that Manufacturer furnishes directly to Customer or through an Authorized Reseller for distribution to Customer.
- “Force Majeure” refers to an unforeseen event outside of the Party that impacts this party by preventing it from performing any of its contractual obligations. By way of illustration but not limitation, Force Majeure an act of God, war (whether or not actually declared), armed conflict or the serious threat of the same, hostility, blockade, military embargo, sabotage, insurrection, rebellion, act of a public enemy, riot or other act of civil disobedience, governmental act, judicial action, explosion, act of terrorism or threat thereof (including cyberterrorism), natural disaster (including without limitation asteroid strikes or volcanic activity), violent storm (including without limitation hurricanes, tornados or blizzards), atmospheric disturbance (including without limitation geomagnetic storm, solar flare or sun outage with respect to electricity grids, transformers and satellite transmissions), destruction by lightning, fire, earthquake, tsunami, flood, plague, epidemic, pan-epidemic, quarantine, civil commotion, strike or lockout or labor dispute (excluding for the avoidance of doubt strikes of Manufacturer’s staff), satellite malfunction, prolonged internet outage, communications line failure or power failure, excluding in all events conditions or events to the extent that such condition or event should have been capable of avoidance in the exercise of industry standard business continuity or disaster recovery measures. Subject to the preceding sentence, the following do not fall under the definition of Force Majeure (i) work conflicts of the Manufacturer or of its Sub-contractors, (ii) interruptions in the Manufacturer's supply chain, (iii) default of subcontractors, (iv) energy supply disruptions and (v) political, military or civil troubles in countries other than those from which the Manufacturer manufactures and/or supplies Software, Maintenance and Support Services, Related Services, and/or Equipment.
- Incident refers to any material malfunction, defect, error, or blocking of an operational, organizational, or technical nature thus disturbing or interrupting (in a material fashion) the operation of Equipment of Software, or the provision of Related Services or Maintenance and Support Services.
- Intellectual Property Rights refers to the creations, inventions, copyrights, patents and filings to register patents, trademarks and filings to register trademarks, models and designs, filings to register models and designs, logos, databases, business names, commercial secrets, manufacturing secrets, expertise and confidential information, as well as any other intellectual property rights or other form of protection thereof currently valid throughout the world.
- “License Term” means the term of the license granted with respect to specific Software as identified on the relevant Purchase Order.
- “Licensed Count” means Licensed User Count, as applicable based on the licensing model identified in the applicable Purchase Order.
- “Licensed User Count” means the maximum number of users that Customer may have at any time who have one or more devices (but not more than three (3) devices) registered to and/or managed/monitored by specific Software licensed hereunder; which maximum number shall be based on the license fees paid by Customer as identified on the relevant Purchase Order. For clarity, a user is any individual Customer Representative who uses a device that is registered to and/or managed/monitored by such Software at any time during a calendar month, provided that a user may not use more than three (3) devices that are all registered to and/or managed/monitored by such Software at the same time during such month. In the event an individual has more than three (3) devices that are all registered to and/or managed or monitored by such Software at the same time during such month, such individual shall be counted as multiple users. As an example, a single individual having five (5) devices registered to and/or managed/monitored by such Software at the same time in a month shall be counted as two (2) users for that month.
- “Malicious Code” means any code that is designed to harm, or otherwise disrupt in any unauthorized manner, the operation of a recipient’s computer programs or computer systems or destroy or damage recipient’s data in an unauthorized manner. For clarity, Malicious Code shall not include standard routines in any Software that are intended to delete data and are implicit in the standard functionality of any Software, or any software bugs or errors handled through support or maintenance, or any license key or other equivalent code that might limit the functionality or scope of the use of any Software to the scope of the license purchased by Customer hereunder.
- “Manufacturer Affiliate” means any entity Controlling, Controlled by or under common Control with Manufacturer, for as long as such Control continues to exist.
- “Price” refers to the price of Equipment, Support and Maintenance Services, Related Services, Software, and/or any transport, installation and configuration charges as set out in Appendix 2.
- “Price Lists” means the then-current price lists of Manufacturer that identify Manufacturer’s generally available software, products and services.as per Appendix 2
- “Product” refers to Equipment, Software, Support and Maintenance Services, and/or Related Services as set out in Appendix 3 or any future Products to be agreed by the parties in a Purchase Order.
- “Purchase Order” refers to one or more of the following applicable documents that identifies the software and/or products and/or services licensed or sold (as applicable) to Customer hereunder and the applicable licensing parameters, including the Licensed User Count (or Licensed Device Count, if applicable), quantity of licenses, License Term, and pricing and payment terms relating to the provision of the applicable Software, Equipment (if any), Support and Maintenance Services (if any), Related Services (if any), and/or other Manufacturer or third party products or services (if any): (i) a product schedule mutually approved by the parties; or (ii) a Manufacturer invoice, quote, online order form, or any other Manufacturer ordering document that is mutually approved by the parties and references this Agreement, where licenses, products or services are purchased from Manufacturer directly; or (iii) an Authorized Reseller invoice or ordering document agreed to between Customer and Authorized Reseller, where licenses, products or services are purchased through an Authorized Reseller. Multiple Purchase Orders may apply if licenses, products, or services are purchased at different times, provided that, unless expressly stated otherwise in a mutually agreed upon Purchase Order, the terms specified in one Purchase Order shall be relevant only to the specific licenses, products or services listed on such Purchase Order.
- “Related Services” refers to any installation, implementation and/or other professional services provided in accordance with the terms of this Agreement and set forth in an accompanying Statement of Work in the Purchase Order.
- Software refers to the object code version of proprietary computer programs provided by or through Manufacturer hereunder (other than Third Party Products as described in Section 15.6 above), including any server-side, device-side, virtual machine and/or installer software to which Customer has purchased licenses hereunder as identified on the relevant Purchase Order (or other mutually agreed upon written document), and any Documentation, backup copies and Upgrades and/or modifications to any of the foregoing provided to Customer hereunder.
- “Specifications” refer to technical configurations and specifications detailed in the applicable Documentation.
- “Support and Maintenance Services” has the meaning set forth in Appendix 3.
- “Upgrades” means any updates, upgrades, enhancements, maintenance releases, bug fixes, error corrections, or modified versions of specific Software provided to Customer in connection with this Agreement, including in connection with any Support and Maintenance Services.
- Delivery Time refers to the delivery time agreed upon between the Beneficiary and the Manufacturer to which the latter must comply. The Delivery Time frame begins as of the receipt date of the purchase order by the Manufacturer , and until delivery is made to the site designated by the Beneficiary in the Purchase Order.
- “Reception” refers to the acceptance procedure whereby the Beneficiary accepts Equipment, and if necessary, Related Services for the purpose of ensuring compliance with Specifications. This acceptance is given through signature of a formal record of receipt.
- “Site” refers to the delivery site as specified in the Purchase Order.
Background
- The Parties have entered into this Agreement to record the terms and conditions pursuant to which the Beneficiaries may purchase the Products indirectly from an Authorized Reseller; or directly from the Manufacturer.
- The “Customer” is Acme SARL, a N/A société par actions simplifiée whose business address is 101 rue Partout, Paris, IdF 75001
- The "{DefT.Manufacturer}" is Quake Inc., a Delaware Corporation whose business address is 233 Curtis Street, Menlo Park, CA 94025
- Each Party expects compliance, with the terms and conditions of this Agreement, by the other Party.
Purpose
- The purpose of this Agreement is to define the conditions under which the Beneficiaries may purchase Products from the Manufacturer, and if applicable, from Manufacturer Affiliates and/or Authorized Resellers.
- This Agreement supersedes all other and previous verbal or written proposals and agreements in relation to its subject matter which have been entered into between the Manufacturer and the Customer and, constitutes the entire agreement between the Manufacturer and the Customer relating to the purchase of Products from the Effective Date.
- This Agreement is entered on a non-exclusive basis and sets out a cooperation framework pursuant to which, the Beneficiaries may purchase the Manufacturer’s Products directly from the Manufacturer or through any Authorized Reseller.
- Any Beneficiary wishing to purchase the Products may place an order directly with the Manufacturer or through any Authorized Reseller, which order will become effective if accepted in writing by the Manufacturer or Authorized Reseller.
- The Manufacturer acknowledges that the Beneficiaries may procure goods and services, similar to the Products, from any other person other than the Manufacturer or an Authorized Reseller.
- For the avoidance of doubt, this Agreement shall in no way constitute a commitment from any Beneficiary for any volume of business, nor any commitment from any Beneficiary to grant any quantity of opportunities to the Manufacturer.
- In addition, this Agreement shall in no way constitute a commitment from Manufacturer that any Product will continue to be available. Manufacturer shall provide the Customer one year notice before “end of life-ing” an Equipment product or a Software product (i.e. ceasing to sell and support that product).
Beneficiaries and Geographical Scope
1. Purchasers
  The following entities shall be entitled to issue Purchase Orders to purchase Products under the terms of this Agreement:
  1. the Beneficiaries; and
  2. companies that become the Customer Affiliates after the Effective Date of this Agreement anywhere in the world.
2. Stipulation on behalf of third parties
  1. The Customer may acquire the provision of Equipment and Related Services from the Manufacturer and/or Manufacturer Affiliates or, as applicable, an Authorized Reseller. To this effect, the Beneficiary shall confirm its commitment by concluding Purchase Order(s) with the Manufacturer or, as applicable, an Authorized Reseller. As the Manufacturer has a reseller agreement in place with the Authorized Reseller, the Manufacturer anticipates that the Authorized Reseller will comply with the terms of such reseller agreement to the extent such terms require the Authorized Reseller to provide products and services to the Customer(s) in connection with this Agreement.
  2. Therefore, any reference to the Customer in this Agreement shall also be considered as equally referring to the applicable Customer, and any reference to the Manufacturer in this Agreement shall be considered as equally referring to the applicable Manufacturer Affiliate.
3. Purchase Orders
  Any order for Equipment, Software, Support and Maintenance Services, and Related Services shall be the subject of one or several Purchase Order(s) agreed to by Beneficiary and the Authorized Reseller or the Manufacturer. Beneficiary commitment shall only be valid with the issuance of a Purchase Order by Beneficiary and the acceptance of such Purchase Order by the Authorized Reseller or the Manufacturer. In the absence of the aforementioned, Beneficiary shall not be obliged to pay the Authorized Reseller nor the Manufacturer with respect to Products; and the Manufacturer shall not be obligated to provide the Products.
4. Authorized distribution
  1. The Manufacturer has put in place procedures to evaluate and review its Authorized Resellers to maintain prudent levels of quality.
  2. A list of Authorized Resellers (by country and/or geographic region) is indicated in “Authorized Resellers” on Appendix 6.
  3. Authorized Reseller status implies that a reseller may resell Manufacturer products and services, such reseller may attempt to provide certain services comparable to those offered by Manufacturer, and such reseller has qualified to be an Authorized Reseller as part of the authorization procedure set up by the Manufacturer.
  4. The Manufacturer shall inform the Authorized Reseller of the terms and conditions agreed to between the Customer and Manufacturer and will ask the Authorized Reseller to provide products and services, as applicable, to the Customer at a level of quality comparable to that offered by the Manufacturer as part of this Agreement.
Contractual Documents
1. This Agreement is made up of its recitals, the articles, terms and conditions set forth herein, the attached Appendices and exhibits, and any related Purchase Order(s).
2. This Agreement, all of its Appendices and exhibits, and the Purchase Order(s) shall be considered to be mutually compatible. In case of conflict between stipulations of the main Agreement, the Appendices and exhibits, and the Purchase Order(s), the conflict shall be resolved pursuant to the following order of priority: firstly, the main Agreement, secondly, the terms of the Appendix / exhibit, and, thirdly, the Purchase Order(s).
3. This Agreement shall prevail over the general terms and conditions of sale of the Manufacturer or any other document or form from the Manufacturer (unless expressly agreed to by the Customer and the Manufacturer in a signed writing by means of an amendment to this Agreement). Furthermore, no pre-printed terms or conditions on any purchase order submitted by Customer will be of any force or effect (unless expressly agreed to by the Customer and the Manufacturer in the specific purchase order).
Term
This Agreement shall commence on the Effective Date and, unless earlier terminated as set forth herein, shall continue for a minimum period of three years (the “Manufacturer Affiliates”). Thereafter it shall automatically renew for subsequent one year periods, unless terminated by either Party in accordance with Section 7 below. The term of this Agreement specified in this Section 6 shall be the “Term.”
Termination
Either Party may terminate this Agreement, at any time during the Term, according the conditions as described below:
1. Termination for Breach
  1. Breaches of specific provisions:
    1. The Customer shall be entitled to terminate this Agreement upon 14 calendar days’ notice to the Manufacturer if the Manufacturer breaches any of its material obligations in the following articles: Sections 14 (Personnel), 17 (Intellectual Property), 18 (Dispossession Guarantee), 24 (Confidentiality), 29 (Subcontracting), 30 (Contract Conveyance), 30 (Sustainable Development) and 32 (Compliance with Applicable Laws).
    2. Manufacturer shall be entitled to terminate this Agreement upon 14 calendar days’ notice to the Customer if the Customer breaches any of its material obligations in the following articles: TBD
  2. In addition to the rights set forth in Section 7.1(a), in the event of any other breach (other than material breach mentioned in Section 7.1 (a)) by a Party of any of its material obligations under this Agreement, the non-breaching Party may terminate this Agreement upon thirty (30) calendar day notice prior written notice, provided, however, that this Agreement shall not terminate if the breach has been cured by the breaching party within such thirty (30) calendar day period.
  3. Within the framework of the application of the present article, the termination is independent from the other measures that either Party can take, notably any claim for damages, it being specified that such a termination does not (in and of itself) give the right to any compensation in favor of the non-terminating Party.
  4. In case for termination for material breach (Section 7.1(a) or other breach (Section 7.1.(b) that cannot be remedied, for the avoidance of doubt a party may claim from the breaching party the unused amounts prepaid for services not yet rendered as of the date of termination.
2. Termination for Insolvency
  1. If the Manufacturer is in a situation of material default on its debts voluntary liquidation, dissolution, judicial reorganization or liquidation, or is targeted by the opening of legal proceedings (which have not been dismissed within ninety (90) calendar days) for liquidation of its business or assets, the Beneficiaries may under these conditions and the limits set out by Applicable Law over the Manufacturer, terminate this Agreement by giving notice notification with immediate effect.
  2. In case for termination for insolvency, for the avoidance of doubt the Beneficiary may claim the unused prepaid amounts from the Manufacturer.
3. Termination for Change of Control
  1. If the Manufacturer is subject to a merger, acquisition change of control or all (or substantially all) of its business or assets are acquired by a third party , the Manufacturer shall notify the Customer promptly following the closing of such transaction. The Customer shall have the option to terminate this Agreement during the forty-five (45) calendar days following the notification by the Manufacturer, by providing written notice to the Manufacturer.
  2. In case for termination for change of control, for the avoidance of doubt the Beneficiary will not be able claim the unused prepaid amounts from the Manufacturer.
4. Termination Due to Force Majeure
  1. The Customer may terminate this Agreement immediately and without liability to pay termination costs should an event of Force Majeure occur and be un-remedied by Manufacturer within thirty (30) calendar days of its occurrence, according to the conditions provided for in Section 28.4.
  2. In case for termination due to Force Majeure, for the avoidance of doubt the Beneficiary may claim the unused prepaid amounts from the Manufacturer.
5. Termination for Convenience
  Either Party may terminate this Agreement with immediate effect for any reason, by giving at least sixty (60) calendar days’ written notice during the term of the agreement. If this Agreement is terminated by the Customer under this Section 7.5, the Customer shall continue to remain responsible for any fees, charges, and expenses remaining under any previously agreed-upon Purchase Orders. Notwithstanding the prior sentence, if the Customer has entered into a multi-year subscription license for Software, the Customer shall only be responsible for fees, charges and expenses under such subscription license through the end of the then current year of such subscription license. For clarity, license fees and related costs, for a perpetual license for Software or costs for appliances are not refundable.
CONSEQUENCES OF TERMINATION
1. Throughout the period starting at the termination notification date and continuing until the effective date of the indicated termination in the said notification, the Manufacturer and the Beneficiary shall fulfill their obligations in accordance with stipulations of this Agreement.
2. Upon expiration of this Agreement or termination under Section 7.2, Section 7.3, Section 7.4 and/or Section 7.5, the rights and obligations of the Parties related to the limited Software license granted under this Agreement (excluding the rights and obligations under clause of Confidentiality) , including without limitation all license restrictions and reporting requirements as described in this Agreement, shall continue until the last to expire of any outstanding License Term (excluding a License Term for a perpetual license). Upon termination by Manufacturer for cause under Section 7.1, all Software licenses (excluding perpetual licenses) granted under this Agreement shall automatically terminate as of the date of termination of this Agreement.
3. In case of termination, each Party must return without delay all documents, equipment, tools, or other elements that the other Party may have transmitted to it for the fulfillment of this Agreement. Upon expiration of the License Term or termination of the license granted under this Agreement to specific Software (whichever is earlier), Customer shall destroy (or at Manufacturer’s option, return) all copies of Software in its possession or control, and upon written request of a party, the other party shall return to such party all Confidential Information of such party in its possession or control. For the avoidance of doubt, any license granted herein with respect to specific Software shall remain effective until terminated or until the applicable License Term expires, whichever is earlier.
4. Any termination of this Agreement will not affect any accrued claims, rights or liabilities of either Party nor will it affect the coming into force or continuation in force of any other provisions of this Agreement which are expressly or by implication intended to survive after termination, including Section 6, Section 7, Section 21, Section 23 and Section 26
Conditions on Exclusivity Level
The present contract is non-exclusive. The Customer is free to be supplied at any moment by any supplier of its choice for goods and services similar to the Equipment, Software and Related Services contemplated by this Agreement. Manufacturer may supply its products, goods and services (including those similar to the Equipment, Software and Related Services contemplated by this Agreement) to any customer of its choosing.
Delivery
1. Software
  1. New Software platform installation
    Manufacturer delivers all Software electronically. For Manufacturer’s accounting purposes, specific Software shall be deemed “delivered,” and the License Term of such Software shall commence and the related maintenance and support, if any, shall commence, on the date the Customer has evaluated and formally accepted the software platform installation according the acceptance procedure and timelines as described in the relevant Purchase Order. Upon written request, Customer shall provide Manufacturer a “Delivery Acknowledgement Letter” in a format reasonably requested by Manufacturer acknowledging delivery of software.
  2. Ordering additional software licenses
    Manufacturer delivers all Software electronically. For Manufacturer’s accounting purposes, specific Software shall be deemed “delivered,” and the License Term of such Software shall commence and the related maintenance and support, if any, shall commence, on the date that such Software is first made available for download by the Manufacturer, as a consequence of a Purchase Order for such Software by the Customer. Upon written request, Customer shall provide Manufacturer a “Delivery Acknowledgement Letter” in a format reasonably requested by Manufacturer acknowledging delivery of software.
2. Hardware
  1. Direct Ordering at the Manufacturer
    All hardware Products purchased through the Manufacturer by the Customer shall be against DDP (Incoterms 2010), at which time title and risk of loss shall pass upon delivery to the Customer. The Manufacturer will pay all freight, insurance, and other shipping-related expenses associated with purchases of hardware Products. All orders of Products shall be subject to acceptance by the Manufacturer in writing. the Manufacturer shall not be liable to Customer, or to any other party for any delay in the delivery of any Products or for any purchase orders not accepted by the Manufacturer. The lead time for delivery in this direct sales model is 14 calendar days.
  2. Indirect Ordering through an Authorized Reseller
    All hardware Products purchased shall be delivered to Customer using Manufacturer's Authorized Reseller’s carrier agent EXW (Incoterms 2010), at which time title and risk of loss shall pass upon delivery to such carrier agent. Authorized Reseller will pay all freight, insurance, and other shipping-related expenses associated with purchases of hardware Products. The Authorized Reseller shall be liable to Customer, or to any other party for any delay in the delivery of any Products or for any purchase order. The leadtime for the Manufacturer to make goods available for the Authorized Reseller’s carrier agent is 7 calendar days in case the Manufacturer has accepted the Purchase Order from the Authorized Reseller. The Manufacturer shall not be liable to the Authorized Reseller, or to any other party for any delay in the delivery of any Products or for any purchase order not accepted by the manufacturer.
3. Services
  Services shall be deemed to be delivered after the formal sign of of the related timesheet by the budget owner of the purchase order or its delegate, or in case of fix time fix price missions in case of the formal sign of by the budgetowner of the purchase order or its delegate of the deliverables.
Products and Services
1. If the Customer purchases licenses for subscription terms of at least three (3) years (“Initial Term”), for the period starting at the end of the Initial Term and ending one (1) year after the Initial Term, the Customer may purchase additional subscription licenses at the same price for such subscription licenses.
2. To the Manufacturer’s knowledge, the contract of distribution between the Manufacturer and the Authorized Reseller is non-exclusive and in compliance with Applicable Law. It is the intent of the Parties that the Authorized Reseller(s) remain entirely free to determine the prices which are appropriate to them and to negotiate these prices with the Beneficiaries. This understanding constitutes an essential and determining condition of the commitment of the Customer to conclude this Agreement.
3. The Manufacturer has set up a body of rules to govern its Authorized Resellers.
Manufacturer Responsibilities
1. PRICE
  In accordance with its standard business practices, during the term of this Agreement and at no extra cost to the Customer, the Manufacturer has an obligation to provide general information, warning and generic advice regarding Manufacturer’s Products and Services that the Customer has purchased, to the Customer (or to the Authorized Reseller, who should pass on the general information, warning and the generic advice regarding Manufacturer's Products and Services towards the Customer)
2. Manufacturer Responsibilities
  The Manufacturer further agrees that during the term of this Agreement further it shall:
Manufacturer Warranties
1. Manufacturer Warranties
  The Manufacturer represents, warrants and undertakes for the Customer that:
  1. for a period of ninety (90) days from the date of delivery of Support Services and Related Services obligations under this Agreement, such services shall be provided promptly and diligently, with all due care and skill, by suitably qualified and trained personnel and in accordance with generally accepted industry practices for similar services. Manufacturer’s entire liability and the Customer’s sole and exclusive remedy for any breach of the preceding warranty will be for Manufacturer to re-perform the nonconforming services, provided that Manufacturer must have received written notice of the non-conformity from the Customer no later than ninety (90) days after the original delivery of the services by Manufacturer;
  2. the Manufacturer is in compliance with all Applicable Law that is directly applicable to Manufacturer and its products and Services for the time being in force (including any mandatory codes of practice issued by any applicable governmental, regulatory or other authority);
2. Warranty limitations
  1. The warranties set out in this Section 13 as regards the Products excludes defects arising out of:
    1. normal wear and tear
    2. abnormal physical or electrical stress;
    3. the consequences of accident, improper or negligent use, storage or handling by any party other than Manufacturer or Authorized Reseller, as long as the proper use storage and handling is clearly communicated to the Customer;
    4. use or installation in connection with other products which do not fit the Specification of the Product or have not been approved by the Manufacturer;
    5. use, operation, repair or installation by the Customer in a manner which does not comply with the Specification, Agreement and/or Documentation;
    6. repair or modification by the Customer, or a third party without prior written authorization from the Manufacturer; and
    7. beta, evaluation, or other testing versions of the Products.
    The warranties set out in this Section 13 shall constitute the sole warranty and sole remedy for the Customer and the sole liability of the Manufacturer with respect thereto. The warranties in this clause are in lieu of all other warranties, express or implied. Additionally, the warranties set forth herein only apply when notice of a warranty claim is provided to Manufacturer within the applicable warranty period specified herein and do not apply to any bug, defect or error caused by or attributable to software or hardware not supplied by Manufacturer.
  2. Except for the warranties expressly set forth in this Section 13 and in Appendix 4, the software, equipment, and/or all services are provided “as is”, and Manufacturer and its suppliers provide no other warranties of any kind, express or implied with regard to the same. Except as expressly specified in this Section 13 and in Appendix 4, all express or implied conditions, representations, and warranties including, without limitation, any implied warranty or condition of merchantability, fitness for a particular purpose, or arising from a course of dealing, law, usage, or trade practice, are hereby excluded to the extent allowed by applicable law and are expressly disclaimed by Manufacturer and its suppliers. To the extent an implied warranty cannot be excluded, such warranty is limited in duration to the express warranty period. Because some states or jurisdictions do not allow limitations on how long an implied warranty lasts, the above limitation may not apply. Further, Manufacturer and its suppliers do not warrant the results of use of the Software or that the Software is bug/error free or that its use will be uninterrupted. This disclaimer of warranty constitutes an essential part of this Agreement. In addition, due to continual development of new techniques for intruding upon/attacking mobile devices and software, Manufacturer does not warrant that the Software or any equipment, system, or network on which the Software is used will be free of vulnerability to intrusion or attack. Manufacturer does not warrant that any services connecting to the Software provided by third parties or any data provided by such third parties will be free from errors or interruptions of service. This warranty gives Customer specific legal rights, and Customer may also have other rights which vary from jurisdiction to jurisdiction.
Personnel
1. Human Resource Management
  1. As part of this Agreement and during the Term, the Manufacturer undertakes to make available to the Customer of its knowledge by means of its competent and qualified teams, customer portal materials and other standard customer resources.
  2. During the Term, the Manufacturer commits to comply with legal measures and regulations (under Applicable Law) with regards to hygiene and health safety, and ensure that the Manufacturer personnel, if the latter intervenes on the Customer premises, complies with the Customer rules of procedure, especially as concerning travel, discipline and security instructions in force; provided that the Customer shall provide such rules to the Manufacturer at the request of the Manufacturer.
  3. Each of the Parties remains responsible for the supervision and control of its personnel, on which it shall act as sole hierarchical and disciplinary authority.
2. Compliance with labor law
  1. To its knowledge and as of the Effective Date, the Manufacturer has fulfilled all obligations (under Applicable Law) for which it is liable with respect to its employees under applicable work regulations.
  2. If requested by the Customer, the Manufacturer commits to communicate to the Customer, upon reasonable request and without delay, all labor law documents and labor law attestations required by Applicable Law.
Software Licence and Related Matters
1. License Grant
  Subject to the terms and conditions of this Agreement and provided that Customer has paid the applicable fees, Manufacturer hereby grants Customer a limited, personal, non-sub-licensable, non-transferable (except to any Customer Affiliate that agrees in writing to all of the terms and conditions of this Agreement), nonexclusive license, during the applicable License Term, to:
  1. install, access, and use the applicable Software (in object code format only) solely for Customer’s (and/or any Customer Affiliate’s) internal business purposes and solely in accordance with the applicable Documentation,
  2. access, use, and reasonably reproduce the Documentation except those excluded in Section 15.3.
  The license granted herein with respect to specific Software shall remain effective until terminated or until the applicable License Term expires, whichever is earlier.
2. Additional Use Rights
  Customer shall exercise the foregoing license rights solely for Customer’s internal business use.
  1. Subject to the foregoing, the specific Software licensed to Customer under this Agreement, including the number of licenses issued and the term of any applicable license or subscription, as applicable, will be identified on the applicable Purchase Order.
  2. Customer may use each licensed copy of the Software that is provided on or with any Hardware (including Equipment) only as embedded in or for execution on that specific unit of Hardware (including Equipment), or replacement thereof, owned or leased by Customer.
  3. In case the Customer wants to sell the hardware here the software is embedded upon, the Customer has the explicit right to transfer the embedded software to the purchaser of the hardware.
  4. Customer may also copy and maintain a reasonable number of copies of the applicable Software on its systems (excluding any Software provided on or embedded in any Hardware, including Equipment) solely for backup and archival purposes. Without granting any additional licenses hereunder, Customer may authorize its Affiliates, its contractors and outsourcers to access, use or operate the Products solely on Customer’s behalf and for Customer’s internal business purposes, provided that Customer remains responsible for such third parties’ use of the Products and compliance with the terms and conditions of this Agreement, and any breach of this Agreement by any such third party will be deemed a breach of this Agreement by Customer.
3. Restrictions
  As a condition of the license granted in Section 15.1, Customer shall not, and shall not authorize or permit any other person or entity (including Customer Representatives) to, directly or indirectly:
  1. copy or use any Software or any portion thereof (except as expressly authorized by this Agreement), modify any Software or any portion thereof (except as expressly permitted under the applicable Documentation), or distribute, sell, license or otherwise provide any Product or any portion thereof to third parties except to Customer Representatives as expressly provided herein;
  2. reverse engineer, disassemble, decompile (except for decompilation for interoperability purposes with the Customer’s platforms), decrypt or attempt to discover the source code (or other human-readable form), structure, or sequence and organization of any Product (except where the foregoing is expressly prohibited by applicable local law, and then only to the extent so prohibited);
  3. obscure, alter, remove, or destroy any proprietary markings, restrictive legends, or intellectual property notices on any Product;
  4. access or use any Product for purposes of designing or developing a competing product or service;
  5. use any Software or any portion thereof in excess of the feature set(s), License Term, Licensed Count, server counts, site(s), and/or other restrictions/limitations described in this Agreement or in the applicable Purchase Order;
  6. use any Software or any portion thereof on equipment, products, or systems not identified in the Documentation;
  7. create derivative works based upon any Software or any portion thereof;
  8. use any Software or any portion thereof in any way that is in violation of any applicable laws; or
  9. use any Software or any portion thereof to perform services for third parties , whether on a service bureau, SaaS, time sharing basis or otherwise except as otherwise expressly provided herein; or
  10. release, publish, and/or otherwise make available to any third party the results of any performance, functional or security evaluation of any Software or any portion thereof without the prior written approval of Manufacturer; or
  11. defeat or circumvent any controls of any Software or any portion thereof places on the number of users supported;
  12. recreate, in whole or in part, any database included within the Software based on queries to such database; or
  13. unbundle any component of any Software. Customer agrees that it is liable and responsible for any action or inaction of the Customer Representatives that are in violation of the terms of this Agreement.
4. Leasing
  Customer may use the Products pursuant to a leasing arrangement whereby Customer leases the Product from an authorized third party; provided, however, that: (a) Customer shall be the only party with the right to use the Products under such leasing arrangement; (b) Customer shall provide reasonable prior notice to Manufacturer, prior to entering in to such leasing arrangement. Customer acknowledges and agrees that the Software (including its design and structure) and Documentation constitutes trade secrets and/or Confidential Information of Manufacturer or its licensors. Except as expressly permitted by this Agreement, Customer shall hold in confidence and shall not disclose, or permit access to any Software or Documentation in any form to any third party (excluding Customer Representatives) without Manufacturer's prior written consent. The Manufacturer is providing a right to use (a license) to the Customer under Section 15.1, and the Manufacturer is not selling its intellectual property rights to the Customer. As between the parties, all ownership rights with respect to the intellectual property rights in and to the Products, and any copies or portions thereof, remain in Manufacturer and its manufacturers and licensors. The Products are protected by the French intellectual property laws (including copyright laws) and other applicable laws. Further details are described in Appendix 3.
5. Software Features and Functionality
  If the Manufacturer in any updates deletes features or functionality from any Manufacturer-developed Supported Software without replacing it with the same or better and transfers the same to another product, the portion of the other product that contains the features or functionality in question, or the entire product, if such features and functionality cannot be separated out, will be provided, if and when available, at no additional license fee under the following conditions:
  1. Customer is a current maintenance paying customer for the Software licensed herein;
  2. Customer is not in breach of any terms of this Agreement;
  3. the new product to which the functions have been transferred has no more differences in price, features, and functionality from the Customer's current version of Software;
  4. Customer relinquishes all rights to use previous versions of the Software following a reasonable, mutually agreed, transition; and
  5. Customer pays any additional third party charges associated with the software, if any. If, however, the new product has more than minimal differences in price, features, and functionality, Customer may still exercise this right provided that it agrees to pay an additional fee equal to the price that would be charged to other existing users of such Software to migrate to the new software.
6. Additional Licenses; Reporting
  If, at any time during a License Term, the Actual Count for specific Software exceeds the then-current Licensed Count for such Software or if Customer wishes to increase the Licensed Count for specific Software, Customer shall promptly notify Manufacturer (or its Authorized Reseller) and pay the applicable incremental license fees and any associated support and maintenance fees due, and after the applicable payment has been received, the Licensed Count for specific Software shall be amended to reflect this change. Within ten (10) days of Manufacturer’s or its Authorized Reseller’s written request, not more than once per calendar quarter, Customer shall (i) complete and certify Manufacturer’s Software usage verification documentation; and (ii) provide Manufacturer access to the relevant device and user inventory data showing the number and type of registered devices and an electronic copy of administrative usage logs generated by the specific Software. Any such access shall be conducted during normal business hours and not unreasonably interfere with Customer’s business. In addition, in connection with invoicing purposes, Customer acknowledges that Manufacturer may have access to information regarding Actual Count for specific Software. Manufacturer and/or its Authorized Resellers (to which Manufacturer may disclose such information) may invoice Customer, and Customer shall pay any such valid invoice, if Manufacturer (and/or its Authorized Resellers) learn that the Licensed Count is below the Actual Count for specific Software after agreement with the Customer and after a formal Purchase Order. Unless otherwise mutually agreed in writing, the fees charged to Customer for the additional licenses, user counts (or device counts, if applicable) and services shall be based on the prices of this Agreement.
7. Third Party Products
  Manufacturer resells licenses from certain third party software or services as identified on the applicable Price List (“Third Party Products”), which products are subject to separate agreements or terms with the applicable third party suppliers (“Third Party Product Terms”) unless other terms are expressly set forth in applicable Third Party Product Terms for a specific Third Party Product. Third Party Product Terms are available for review on at www.quake.com/legal/thirdpartyterms.html (or other URL designated by Manufacturer) or, if applicable, are negotiated and executed by and between the applicable third party supplier and Customer. If Customer purchases any Third Party Products, Customer acknowledges and agrees that it is bound by the applicable Third Party Product Terms. For purchases of Third Party Products directly from Manufacturer, the payment-related terms applicable to the Software shall apply equally to the Third Party Products. Except as otherwise expressly set forth in this Section 15.6, this Agreement shall not apply to the Third Party Products and Customer acknowledges and agrees that The Manufacturer disclaims all warranties, indemnities, obligations, and other liabilities in connection with any Third Party Product. If support and maintenance is offered for a specific Third Party Product and Customer purchases directly from Manufacturer, Manufacturer’s sole and exclusive obligation is to distribute any applicable Third Party Product error correction, update, upgrade and other release provided to Manufacturer for customers purchasing support and maintenance and/or to provide any first-line technical support as described in Manufacturer’s published documentation for such support and maintenance offering. In no event shall manufacturer’s liability arising out of or in connection with any third party product, however caused and under any theory of liability, whether in contract, statute, tort or otherwise, (i) exceed the amounts received by manufacturer for the applicable third party product and (ii) with respect to the support and maintenance services related thereto (if any), exceed any amounts received by manufacturer for the applicable support and maintenance services in the then-current term.
8. Third Party Suppliers
  The Software may contain or be provided with third party proprietary program, interfaces, firmware and other software licensed by Manufacturer (“Third Party Components”) or third party services that are made available through the Software (“Third Party Services”). In connection therewith, additional or different terms may be applicable as identified on www.quake.com/legal/thirdpartyterms.html (or other URL designated by Manufacturer) or otherwise made available to Customer (which terms are hereby incorporated by reference herein). Customer agrees to, and its usage and/or access of Third Party Components and Third Party Services is subject to, such terms. Any Third Party Services are made available to Customer subject to Customer having currently purchased Support and Maintenance Services either from Manufacturer directly or an Authorized Reseller; no additional fees shall be due or charged in connection with the provision of such Third Party Services.
Financial Conditions
1. Upon request, the Manufacturer will provide the Customer with a copy of its Price List, which may be updated from time to time.
2. {_Prices} are expressed and invoiced in U.S. Dollars
3. The prices and the terms and conditions for the purchase of the Products between the Beneficiaries and the Authorized Reseller, shall be agreed by the Beneficiaries and the Authorized Reseller. For the avoidance of doubt, it is hereby mentioned that the Manufacturer will not be a party to any such agreement.
Intellectual Property
1. Prior Rights
  Intellectual Property Rights held by the Customer prior to the Effective Date of this Agreement shall continue to be held by Customer. Intellectual Property Rights held by the Manufacturer prior to the Effective Date of this Agreement shall continue to be held by Manufacturer.
2. Software and other Assets
  1. All Software is licensed and not sold. As between the Manufacturer and Customer, Manufacturer and its licensors shall own and retain all right, title, and (except as expressly licensed hereunder) interest in and to the Software and all copies or portions thereof, and any derivative works thereof (by whomever created) unless these derivate works have been developed specific for and against payment by the Customer. All suggestions or feedback limited to the Manufacturer’s Products, provided by Customer or its employees, contractors or other agents (including Customer Representatives) to Manufacturer or its Authorized Resellers with respect to the Software shall be Manufacturer’s property and deemed Confidential Information of Manufacturer, and Customer hereby assigns the same to Manufacturer. There are no implied licenses granted by Manufacturer under this Agreement unless explicitly mentioned in a related Purchase Order.
  2. The Software may contain or be provided with open source libraries, components, utilities and other open source software (collectively, “Open Source”), which Open Source may have applicable license terms as identified on a website designated by Manufacturer or otherwise provided with the applicable Software or Documentation. Notwithstanding anything to the contrary herein, use of the Open Source shall be subject to the applicable Open Source license terms and conditions to the extent required by the applicable licensor (which terms shall not restrict the license rights granted to Customer hereunder but may contain additional rights).
Support and Maintenance and Professional Services.
1. Support and Maintenance Services
  Support and Maintenance Services (if any) are delivered in accordance with Appendix 3 if these Services are ordered by the Customer through the Manufacturer or an Authorized Reseller. If Customer has place an purchase order for the aplicable fees to obtain Support and Maintenance Services directly from Manufacturer, Appendix 3 applies. If Manufacturer received a purchase order for the applicable fees by an Authorized Reseller to provide Maintenance Services indirectly to Customer, Customer is entitled to receive Maintenance Services through such Authorized Reseller in accordance with Appendix 3. Otherwise, Appendix 3 does not apply.
2. Professional Services
  Customer may order standardized professional services that are identified on the applicable Price List and described in a Mutual agreed statement of work or the parties may agree to customized professional services related to the Software as set forth in a mutually-agreed statement of work (“Custom SOW”), which Standard SOW and/or Custom SOW are hereby incorporated by reference herein. All such professional services delivered by Manufacturer shall be subject to the terms and conditions of this Agreement, regardless of whether the applicable Purchase Order, Standard SOW or Custom SOW expressly references this Agreement.
3. Supplemental Manufacturer Products
  Customer may desire to place orders for Manufacturer products or services identified on the applicable Price List that supplement the baseline Manufacturer mobile device management product (“Supplemental Manufacturer Products”). If Customer purchases a license to any Supplemental Manufacturer Products from Manufacturer directly or through Authorized Resellers, Customer acknowledges and agrees that the Supplemental Manufacturer Products shall be deemed Software and, except as otherwise expressly set forth herein, subject to the same terms and conditions applicable to other Software. For clarity, Supplemental Manufacturer Products expressly exclude Third Party Products which are covered by Section 15.6 above.
Indemnification
1. Subject to the terms herein, Manufacturer shall, at its cost and expense,
  1. defend, or at its option, settle any claim brought against Customer, Customer Representatives, and their respective directors, officers and employees (“Customer Indemnities”) by a third party alleging that any use of Software infringes or violates any third party intellectual property right, and
  2. pay, indemnify and hold Customer Indemnities harmless from any settlement of such claim or any damages awarded to such third party as a result of such claim, provided that Customer Indemnities:
    1. give Manufacturer prompt written notice of any such claim; and
    2. permit Manufacturer to solely control and direct the defense or settlement of any such claim, provided Manufacturer shall not settle any claim in a manner that requires Customer to admit liability or pay money without Customer’s prior written consent; and
    3. provide Manufacturer all reasonable assistance in connection with the defense or settlement of any such claim, at Manufacturer’s cost and expense. Customer may participate in the defense and settlement at Customer’s sole expense.
2. If such a claim occurs, or in Manufacturer’s opinion is reasonably likely to occur, Manufacturer, at its expense and at its sole discretion, may, in addition to its indemnification obligations hereunder:
  1. procure the right to allow Customer to continue to use the applicable Software; or
  2. modify or replace the applicable Software or infringing portions thereof to become non-infringing; or
  3. if neither (a) nor (b) is commercially practicable, terminate Customer’s license to the affected portion of the applicable Software and, as applicable, refund a portion of the license fees paid by Customer corresponding to such Software, pro-rated over a three (3) year period from initial delivery (unless the applicable License Term is shorter than three years, in which case the pro-rated period shall be equal to the License Term).
3. Notwithstanding the foregoing, Manufacturer shall have no obligations under this Section to the extent any claim is based upon or arises out of:
  1. any modification or alteration to the applicable Software not made by or on behalf of Manufacturer; and/or
  2. any combination or use of the applicable Software with any third party equipment, products or systems, to the extent that such claim is based on such combination or use; and/or
  3. Customer’s continuance of allegedly infringing activity for longer than a reasonable period after being notified thereof; and/or
  4. Customer’s failure to use Upgrades made available by Manufacturer; and/or
  5. damages attributable to the value of the use of a non-Manufacturer product or service; and/or
  6. use of the applicable Software not in accordance with the applicable Documentation granted under this Agreement.
4. The remedies set forth in this Section constitute Customer’s sole and exclusive remedies, and Manufacturer’s entire liability, with respect to infringement or violation of third party intellectual property rights.
Additional Representations
Each Party further represents that, as of the Effective Date:
1. it is a regularly established company having the corporate capacity necessary to conclude this Agreement and fulfill all obligations hereunder. It has obtained all internal corporate authorizations in order to execute and deliver this Agreement;
2. neither the execution of this Agreement, nor the fulfillment of its obligations hereunder, shall be contrary to any provision in such Party’s charter or bylaws, or any arbitrated or binding legal decision concerning such Party;
3. information provided in this Agreement are correct and do not fail to mention a material fact that would misrepresent or mislead the declarations and guarantees stated herein;
4. contract terms are considered legally enforceable obligations, which bind the Manufacturer; and
5. such Party is not the subject of a claim or law suit that might have a material adverse effect on its ability to perform its obligations hereunder.
Liability
1. To the maximum extent permitted by applicable law, except for any breaches of or for liability arising out of Section 15.1 (license grant), Section 15.3 (restrictions), or Section 19, or for liability arising out of gross negligence, fraud, or willful or intentional misconduct, or for liability arising out of bodily injury or death, or intentional breach of Section 23:
2. Neither Party may exclude or limit their liability for death or personal injury, caused by its negligence or the negligence of its employees or agents, for fraudulent misrepresentation or for any liability which may not be limited or excluded by applicable law, is excluded or limited by this Agreement, even if any other term of this Agreement would otherwise suggest that this might be the case.
Insurance
1. The Manufacturer confirms that, as of the Effective Date, it is insured with a reputable insurance company (or companies) for professional and operational liability insurance, as well as fire coverage.
2. The Manufacturer confirms that, as of the Effective Date, these insurance policies include commercially reasonable levels of coverage for the Manufacturer’s business.
3. The Manufacturer commits to maintain these insurance policies throughout the term of this Agreement and to communicate to the Customer, upon its request, proof of insurance, which will specify (among other things) the geographic coverage, commitment, list of risks covered, guarantee thresholds and ceilings and the list of what is insured.
Confidentiality
1. As part of this Agreement, each Party may have access to information from the other Party that is confidential in nature. “Confidential Information” means any non-public data, information and other materials regarding the products, software, services, or business of a party (and/or, if either party is bound to protect the confidentiality of any third party’s information, of a third party) provided by one party (“Disclosing Party”) to the other party (“Receiving Party”) after the Effective Date in connection with this Agreement, where such information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where such information should, by its nature or circumstances of disclosure, be reasonably considered to be confidential and/or proprietary. The parties agree that, without limiting the foregoing, all Software (and any performance data, benchmark results, security assessments and all other technical information relating to any Software), Documentation, and derivatives of the foregoing, and Manufacturer’s pricing information (set forth in a Purchase Order, Price List or otherwise) shall be deemed the Confidential Information of Manufacturer, and the other terms and conditions of this Agreement (but not its existence) shall be deemed the Confidential Information of both parties.
2. Each Party undertakes to preserve the confidential nature of such Confidential Information and treat all Confidential Information of the Disclosing Party in the same manner as it treats its own similar proprietary information, but in no case will the degree of care be less than reasonable care . Each Party undertakes to use the Confidential Information of the Disclosing Party only to perform hereunder (including providing the features and services associated with the normal use of the Software) or exercise rights granted to it hereunder.
3. Each Party undertakes not to divulge Confidential Information of the Disclosing Party to third parties without the prior written consent of the Disclosing Party, it being understood that each Party shall have the right to communicate the Confidential Information of the Disclosing Party to its own employees, and subcontractors, if necessary, as well as, concerning, the Customer its information technology service providers on assignment as part of the execution of this Agreement, and for all such individuals, (i) who have a legitimate need to know in order to fulfill all obligations, or, concerning the Customer, to benefit from rights resulting from this Agreement and (ii) are bound by a confidentiality agreement at least as strict as the one contained in this Agreement. The Receiving Party shall remain liable for any non-compliance of such employee, contractor or other agent with the terms of this Agreement.
4. Notwithstanding the foregoing, no information received in writing by the Receiving Party from the Disclosing Party shall be considered as Confidential Information if:
  1. it is published or accessible under another form to the public other than through a breach of this Agreement;
  2. it is the result of independent internal development by the Receiving Party without use of the Disclosing Party’s Confidential Information;
  3. it was already known to the Receiving Party (without any obligation of confidentiality) before any communication was sent by the Disclosing Party; or
  4. is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure, or is approved for release by written authorization of the Disclosing Party.
5. These confidentiality obligations shall remain in force for a period of seven (7) years following the date of expiration or termination of this Agreement.
6. Upon written request from the Disclosing Party and within a period of ninety (90) days as of this request, the Receiving Party undertakes to return to the Disclosing Party all tangible elements containing or making up Confidential Information (of the Disclosing Party), as well as all copies of these elements, to delete Confidential Information from computers, word processors, and similar hardware in which said Confidential Information was programmed or stored, with exceptions made for Manufacturer Confidential Information necessary for the use of Equipment which may be legitimately retained by the Customer and for information stored in back-up and disaster recovery systems (which information shall be gradually deleted in accordance with such Party’s records retention policies). The Disclosing Party reserves the right to request from the Receiving Party a written confirmation by a duly authorized person that this obligation to return and destroy has been fulfilled pursuant to the present article.
Governance/GAM, Dispute Resolution and Contract Management
1. The Manufacturer shall appoint a global account manager (GAM) (the “Global Account Manager”) who shall be the main contact point between the Manufacturer and the Customer. The contact details of the Global Account Manager, as of the Effective Date, are set forth in Appendix 7 below. The Manufacturer may change the Global Account Manager from time to time by giving notice to the Customer.
2. The Customer shall appoint a Customer Contract Manager (the “Customer Contract Manager”) who shall be the main contact point between the Customer and the Manufacturer. The contact details of the Customer Contract Manager, as of the Effective Date, are set forth in Appendix 7. The Customer may change the Customer Contract Manager from time to time by giving notice to the Manufacturer.
3. The Customer shall have the right to request, in writing, the replacement of the Global Account Manager, should the Customer deem his (or her) performance unsatisfactory. The Customer must act reasonably and in good faith when exercising this right. Following receipt of such a written request from the Customer, the Manufacturer shall propose a replacement Global Account Manager at no cost to the Customer.
4. During the term of this Agreement the Global Account Manager shall attend periodic meetings with the Customer Contract Manager at mutually-agreed upon times, in order in particular to discuss the relationship between the Parties. Such meetings may be held by teleconference or WebEx or other electronic means.
5. Any question or difference, which may arise concerning the construction, meaning, effect or operation of this Agreement or any matter arising out or in connection with this Agreement, shall, in first instance, be treated and escalated pursuant to the dispute resolution process set forth in Appendix 7 below.
6. The provision of a Global Account Manager and the management of the Customer account by the Global Account Manager during the term of this Agreement, shall be at no extra cost to the Beneficiaries.
Customer Audit
1. In accordance with its standard business practices (including its records retention and IT policies), the Manufacturer shall maintain a commercially reasonably set of records pertaining to all material aspects of this Agreement and its performance hereunder (“Records”).
2. The Customer shall have the right, at its own risk and cost, upon notice to the Manufacturer, which shall not be less than twenty (20) calendar days, to request an inspection audit by a mutually agreed third-party, at the offices of the Manufacturer and during regular working hours, any and all such Records, during the term of this Agreement and for a period of one (1) year thereafter, for the sole purpose of determining compliance by the Manufacturer with this Agreement, provided that Customer shall not unreasonably use such verification right and that such verification shall only cover the previous twenty (24) month period. Furthermore, the Parties expressly agree that the rights set forth in this Section 25.2 do not include a right to review / inspect source code, engineering materials, R&D materials, and server rooms. Furthermore, any information reviewed by such third party shall be deemed Confidential Information of Manufacturer.
Marketing and Use of Beneficiary’s Name
1. The Manufacturer shall not cite, publicize or indicate in any third party communication whatsoever, regardless of the medium used, the Customer name, logo, brand, and/or all other signs distinctive as the Customer, as well as using any reference to its obligations to the Customer as part of this Agreement, unless prior and written consent is given. For the avoidance of doubt, the Manufacturer may internally communicate that the Customer is a customer, and the Manufacturer may discuss this Agreement with its financial, accounting and legal advisers.
2. Any publicity, press releases, announcements, or public communication concerning this Agreement shall be coordinated by the Parties and subject to their authorization before roll-out.
3. Each Party may, after having informed the other in writing, make a public declaration or broadcast of information related to this Agreement, when required by law or by a regulatory body (including the AMF (French Financial Markets Authority) and the US Securities and Exchange Commission), judicial body or administrative body; provided, however, that such Party shall take reasonable efforts to limit the disclosure of Confidential Information in such instance.
4. Each Party reserves the right to make a communication related to this Agreement that it may esteem to be desirable or necessary for its employees of for the employees of its Affiliated companies which may be concerned.
Force Majeure
1. Should a case of Force Majeure occur affecting one of the Parties, and inhibiting its full or partial fulfillment of its obligations as part of this Agreement, said Party must inform the other Party promptly, and within 5 (five) calendar days of the Force Majeure occurrence.
2. In all situations of Force Majeure, the Parties shall consult each other without delay in order to decide the measures to be set into place. The Manufacturer must attempt to implement, upon mutual agreement between the Parties, commercially reasonable technical and human resources efforts necessary to set up a workaround solution.
3. In any event, the Parties shall make commercially reasonable efforts to reduce all interruptions due to a case of Force Majeure.
4. If the performance of this Agreement is blocked during a period of thirty (30) calendar days or more due to a case of Force Majeure, the Customer may send the Manufacturer a notification of immediate termination of this Agreement and/or relevant Purchase Order, without any compensation for this act. The Customer in this case can claim for re-imbursement of the upfront paid amounts prorate the remaining period.
5. It is specified that the Manufacturer may not terminate this Agreement in case of Force Majeure, but the Manufacturer may continue to exercise its termination rights provided elsewhere in this Agreement.
Subcontracting
1. In the case of subcontracting by Manufacturer, the Manufacturer shall remain responsible for the full performance of this Agreement. The Manufacturer shall remain responsible for the actions of its subcontractors.
2. The Manufacturer undertakes to comply with Applicable Law as it applies to its subcontractors.
3. The Manufacturer undertakes to pay and be fully responsible for any claims for payment (for Related Services provided to the Customer under this Agreement) made by any one of Manufacturer’s Sub-Contractors directly against the Customer.
4. The Manufacturer must identify all subcontractor used for the delivery of products or services to the Customer. For any Related Services subcontracted under this Agreement, the Manufacturer undertakes to continue the performance of the Related Services in the event of total or partial termination of activity of a Sub-Contractor.
Contract Conveyance
1. Transfer upon a Change in Control
  Neither Party may assign, transfer or contribute, under any form, whether free of charge or against payment, this Agreement and/or the rights and obligations arising under this Agreement, without the prior written consent of the other Party; provided, however, that either Party may transfer and assign this entire Agreement in the event of a merger or acquisition of such Party or the sale of all (or substantially all) of its business or assets. In the event of such transfer and assignment, the transferring Party shall provide prompt notice to the non-transferring Party.
2. Transfer by the Customer
  1. In addition to the rights set forth in Section 29.1, the Manufacturer expressly authorizes the Customer to assign and transfer all of this Agreement to any Customer Affiliate that is sufficiently capitalized to meet all obligations and potential liabilities in connection with this Agreement.
  2. This transfer takes effect thirty (30) calendar days after receipt by the Manufacturer of the notice sent by the Customer, by registered letter with acknowledgment of receipt.
  3. The Manufacturer undertakes to promptly confirm in writing the authorization stipulated in paragraph (a) on simple request.
Sustainable Development
1. Protection of the Environment
  1. If Manufacturer owns and operates any manufacturing facilities, the Manufacturer shall develop environmental action plans that promote the reduction of risks of accidents, the reduction of consumption of water and energy, the management of emissions and waste, the restriction of noise and odors and the integration of the sites with the environment.
  2. If applicable, the Manufacturer undertakes to establish and to comply with programs for the recycling of its products pursuant to Applicable Law.
2. Compliance with Labor Practices
  1. In addition to the local labor regulations that are applicable to it, the Manufacturer undertakes to comply with the conventions of the International Labor Organization, notably as regards the minimum age and child labor, trade union freedom, the right of organization and collective bargaining, against forced or compulsory labor, for the equality of remuneration between men and women, against all discrimination in employment, working hours and the minimum wage.
  2. The Manufacturer undertakes to implement its labor policy in all the countries where it is present and shall take any action to have it implemented by its own Related Companies and Subcontractors.
Compliance with Applicable Laws
1. During the term of this Agreement including the term of the items that survive the term of this Agreement, the Customer commits to comply with Applicable Laws.
2. During the term of this Agreement including the term of the items that survive the term of this Agreement, the Manufacturer commits to comply with Applicable Laws.
General Provisions
1. Codicils (contract amendments)
  Any waiver of, or modification to, or amendment to any provision of this Agreement shall only take effect after signature of the codicil / amendment by both Parties. Variations to this Agreement shall not be effective unless they are in writing and signed by duly authorized representatives of both Parties. Any variation shall be attached to this agreement as an addendum (codicil) N+1 (where N is the number of the last addendum attached to this Agreement).
2. Relations between Parties
  The Parties shall act as independent contractors to this Agreement, and no provision of this Agreement may, in any circumstance whatsoever, be interpreted as conferring to one of the Parties the capacity of agent, broker, distributor, representative, or principal of the other Party. None of the Parties commits as part of this Agreement or under any other convention, to take on any obligation whatsoever, be it regulatory or contractual, incumbent to the other Party, or to intrude upon how the other Party conducts business.
3. Notification
  1. Any notification or correspondence on the terms herein may validly be made in writing and
    1. by registered letter with acknowledgment of receipt, to the Parties to their registered address as indicated in the header herein,
    2. by hand-delivered letter, or
    3. in case of emergency (notably in case of dispute of an Incident) by fax or email.
  2. Notices are deemed to be made for:
    1. registered letters with acknowledgment of receipt: at the date indicated on the acknowledgment of receipt;
    2. hand-delivered letters: at the date mentioned on the receipt signed by the agent of the recipient;
    3. faxes and emails: at the date indicated on the fax transmission report or the email send date.
4. Partial Invalidity
  Invalidity, unenforceability, ineffectiveness, voidability, or the inapplicability of one or several stipulations of this Agreement shall not affect the validity, enforceability, effectiveness and implementation of other stipulation of this Agreement, assuming such an invalidity or inapplicability does not affect the foundation of said Agreement, or radically alter its economic basis. For a period not to exceed thirty (30) days, the Parties shall negotiate bona fide for the purpose of replacing the relevant stipulation with a valid, enforceable, effective stipulation that shall be as close as possible to the intention of the Parties and the economic impact of the replaced stipulation. After such thirty (30) day period, either Party shall be free to terminate this Agreement (upon written notice to the other Party) if a replacement stipulation has not been agreed upon.
5. No waiver
  Subject to obligatory laws regarding the statute of limitations, the fact that a Party in this Agreement does not exercise the right or recourse at the moment when it is possible to do so, or only partially, irregularly or tardily exercises their right, cannot be considered as having as effect a limit of the extent of this right or recourse, or as being a renunciation of this right or recourse, or of any other right or recourse whatsoever, and shall not authorize in any manner the other Party to refuse to perform in a timely manner all or part of its obligations as part of this Agreement.
6. Entire Agreement
  This Agreement expresses the entirety of the rights and obligations of the Parties related to the subject matter hereto.
7. Governing Law, Venue, and Mandatory Arbitration
  This Agreement is governed by French law, with the exception of intellectual property issues, which will be governed by New York law. Application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. All disputes arising out of or in connection with this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. Venue for the arbitration is Paris, France.
8. Dispute Settlement
  1. All disputes occurring between Parties and resulting from this Agreement must firstly be submitted to the Global Account Manager and the Customer Contract Manager (or, for each Party, other designated senior representatives) for attempted resolution as described in {Annex.7.Xref}.
  2. If the parties identified in Section 32.8(a) are not capable of providing a solution after a maximum period of thirty (30) days following the dispute submission date, the dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce, with venue in Paris, France, by one or more arbitrators appointed in accordance with the said Rules. Notwithstanding the foregoing and in case of emergency or breach / threatened breach of a Party’s intellectual property rights or confidentiality rights, the Parties remain free to pursue immediate judicial relief (including obtaining interim relief measures or applications to competent jurisdictions) before expiration of the dispute settlement proceedings limitations.
  3. The Parties elect domicile at the addresses shown on the first page of this Agreement.
9. Miscellaneous
  1. The parties agree that a material breach of this Agreement adversely affecting Manufacturer’s or its suppliers’ intellectual property rights in Software or the Confidential Information of either party may cause irreparable injury to such party for which monetary damages would not be an adequate remedy and the non-breaching party shall be entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have hereunder or at law.
  2. Software and Documentation, including technical data, may be subject to import and export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply with all such regulations.
  3. In connection with the normal operation of the Software, Manufacturer compiles and has access to aggregated data (such as product or feature usage, device metrics/metadata and/or mobile application usage), which is anonymized and aggregated so that it does NOT and cannot contain any information identifiable or attributable to any individual (“Aggregated Anonymous Data”). Customer agrees that Manufacturer shall have the right to use, store, analyze, and disclose such Aggregated Anonymous Data.

Signature
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.

Quake Inc.

("{_P1}")

By:

{xSignature}
Name: Solomon Shirley
Title: President and Chairman

Date: {Sign.YMD}
Signed at: Menlo Park, California, United States of America

Acme SARL

("{_P2}")

By:

{xSignature}
Name: Abigail Altima
Title: Gérant

Date: {Sign.YMD}
Signed at: Paris, Ile de France, France

Annexes
{Annex.sec}