General
Terms and Conditions for Digital Services
PREAMBLE
These General Terms and Conditions for Digital Services (the “General Terms and Conditions”)
set
forth the
terms and conditions governing the use by the Customer of Digital Services provided by the
Provider.
Provider and Customer are referred to individually as a “Party” and collectively as the
“Parties”.
1. INTERPRETATION
1.1 Definitions: Affiliate: an entity that is controlled by, controlling, or
under common
Control with one of the Parties.
Agreement: the Commercial Offer together with these General Terms and
Conditions, any
applicable Regional Terms Schedules and any Appendices to these documents.
Business Day: a day other than a Saturday, Sunday or public holiday in the
country where
Provider is located.
Commercial Offer: the document referencing these General Terms and
Conditions
and providing
commercial, financial, technical and/or operational details about the agreement between the
Parties. The
Commercial Offer specifies if the Digital Services include the provision of Provider Content
and/or
Documentation.
Commercial Offer: the document referencing these
General Terms and Conditions and providing commercial,
financial, technical and/or operational details about the
agreement between the Parties. The Commercial Offer
specifies if the Digital Services include the provision of
Provider Content and/or Documentation.
Confidential Information: all non-public and proprietary
information including, without limitation, know-how,
intellectual property, ideas, drawings, designs, concepts,
samples, models, plans, data, software, and other
technical, operating, financial or commercial information
that would be regarded as confidential by a reasonable
business person, which is obtained directly or indirectly
either before or after the Effective Date of the Agreement
by one Party from the other Party or by virtue of having
communications with or being on the premises of the other
Party in connection with the business relationship.
Control, Controlled, Controlling: when one entity either,
directly or indirectly, has the power to direct the
management and policies of another legal entity, whether
through the ownership of a fraction of the share capital or
by contract or otherwise, and shall be deemed to exist upon
the ownership of 50% or more of the share capital or voting
rights.
Customer: person or legal entity identified in the
Commercial Offer.
Customer Data: any data provided, directly or indirectly, by
Customer and processed by Provider for the purpose of the
provision of the Digital Services.
Digital Services: any services provided by Provider as
specified in the relevant Commercial Offer. Depending on
the specifications of the Commercial Offer, Digital Services
may include online access to software’s functionalities,
Provider Content, as well as maintenance and/or support
services. Except if otherwise provided, references to the
Digital Services shall include the Provider Content and the
Documentation.
Documentation: any documentary resources, as specified
if any in the relevant Commercial Offer, made available by
Provider to Customer and setting forth the then-current
functional, operational capabilities of, and the required
configurations and specifications for use of the Digital
Services.
Electronic Transmission: any form of communication, not
directly involving the physical transmission of paper, that
creates a record that may be retained, retrieved, and
reviewed by a recipient thereof, and that may be directly
reproduced in paper form by such a recipient through an
automated process, provided that the transmission is
secure and all actions are tracked and recorded by a
reliable system, such record being able to be retained,
retrieved and reproduced by the recipient and the sender.
Force Majeure Event: any circumstance beyond the
reasonable control of the Party, such as acts of God, war,
pandemic, epidemic, terrorism, civil disturbance, malicious
damage, strike, disease outbreak, lockout, industrial action,
lack or failure of transportation facilities, fire, flood, drought,
extreme weather conditions, compliance with any law or
governmental order, rule, regulation, direction or other
circumstance beyond the reasonable control of either Party,
provided that such Party could not reasonably be expected
to have taken into account the occurrence and the effects
of the occurrence upon its ability to perform hereunder, and
that it could not reasonably have avoided the occurrence
and overcome its effects.
Marks: the Provider trademarks, trade names, common law
rights, logos, slogans, signs, domain names, subdomains,
keywords, and related goodwill.
Michelin Group Positions: the positions taken by Michelin
Group to refuse and prohibit any direct or indirect
commercial activity involving Michelin Group products
and/or services (including but not limited to sales to or in the
country, and/or transit across the country) with certain
countries. They may contain more restrictive positions than
the Trade Restrictions and are based on commercial
considerations and other compliance concerns, including,
but not limited to, money laundering and corruption
concerns, and concerns related to the financing of
terrorism. They apply to the Digital Services used on a
standalone basis or as incorporated in a more global offer.
As of the date of the Agreement, the list of countries to
which Provider refuses and prohibits any direct or indirect
sales (including transit across these countries) is Cuba,
Iran, North Korea, and Syria. This list is subject to change
in Provider’s sole discretion.
Normal Business Hours: refers to the period from 8.00 am
to 6.00 pm Provider local time, each Business Day;
Order: any order referencing the Digital Services to be
provided by Provider to Customer.
Provider: the Michelin Group entity identified in the
Commercial Offer.
Provider Content: any content made available by Provider
to Customer as part of the Digital Services and as specified,
if any, in the relevant Commercial Offer.
Regional Terms Schedules: as applicable, terms and
conditions specific to certain regions and/or countries
attached to these General Terms and Conditions.
Restricted Person: any individual, entity, or body either: (i)
specifically designated or listed under Trade Restrictions;
(ii) owned or controlled by any person specifically
designated or listed under Trade Restrictions; or (iii) acting
for or on behalf of any person specifically designated or
listed under Trade Restrictions.
Territory: territory identified in the Commercial Offer on
which the Customer is authorized to access and use the
Digital Services.
Trade Restrictions: trade sanctions (including but not
limited to comprehensive or sectoral embargoes and
restricted parties) and export controls (including but not
limited to military or dual usage products).
User: the individual who, under Customer’s control and
responsibility, is authorized to use the Digital Services in
accordance with the terms of the Agreement.
1.2. Any Order for Digital Services or, where
applicable, signature of the Commercial Offer, is
Customer's unreserved acceptance of all provisions of
these General Terms and Conditions, their Appendices,
and the applicable Regional Terms Schedules.
1.3. Any reference to the General Terms and Conditions
includes their Appendices and the Regional Terms
Schedules, if any.
1.4. Unless the context otherwise requires, a reference to
one gender shall include a reference to the other genders,
and the use of the singular imports the plural and vice versa.
1.5. A reference to legislation or a legislative provision is a
reference to it as amended, extended, or re-enacted from
time to time.
1.6. All references to any mandatory local laws and/or
regulations shall be contained in the Regional Terms
Schedules appended to these General Terms and
Conditions.
2. EFFECTIVE DATE AND TERM
2.1 Effective Date: The effective date and the term of the Agreement are
specified in the
Commercial Offer.
2.2 Term: The Agreement may be renewed in accordance with the provisions of
the
Commercial
Offer.
3. PROVISION OF THE DIGITAL SERVICES
3.1 Availability: Provider shall make the Digital Services available to
Customer
during the
applicable Term and pursuant to the conditions set forth in the Agreement.
3.2 Maintenance: Unless provided otherwise in the Commercial Offer, Provider
shall use
commercially reasonable endeavors to limit downtimes of the Digital Services and carry out
maintenance
outside Normal Business Hours.
3.3 The Digital Services shall be made available and
performed according to the planning jointly agreed between
the Parties.
4. RIGHT TO USE THE DIGITAL SERVICES
Subject to the terms and conditions of the Agreement, Provider grants to Customer a limited,
non-sub-licensable, non-transferable, revocable, non-exclusive license to access and use the
Digital
Services for the Term of the Agreement, on the Territory and, unless if otherwise
provided in the Commercial Offer, for its internal business
purposes only.
Except as otherwise provided in the Commercial Offer
and/or the Documentation, Customer may not (i) copy,
modify, adapt, translate, create derivative works or combine
the Digital Services; (ii) resell, rent, lease, host, distribute,
republish, decompress, disassemble, reverse compile,
reverse assemble, reverse engineer whole or part of the
Digital Services, or otherwise attempt to discover the
source code or underlying algorithms, processes and
methods of whole or part of the Digital Services; (iii) offer or
permit the use of the Digital Services as part of a third-party
outsourcing service, on a service bureau basis, on a timesharing basis, or on behalf of any
third-party;
(iv) delete or
alter any proprietary notice or Marks included in or
associated with the Digital Services.
In no event shall Customer access or use the Digital
Services in a way that: (i) may affect the security, stability,
performance or functions of the Digital Services; (ii) create
a risk of harm or loss to any person or property; (iii) is illegal,
unlawful, harmful, pornographic, defamatory, or invasive of
personal privacy or publicity rights; or (iv) infringes any
third-party rights. Any such access or use shall be
considered a material breach of the Agreement and entitles
Provider to suspend the Digital Services and/or terminate
the Agreement in accordance with Section 10 hereunder.
5. PARTY'S OBLIGATIONS
5.1 Mutual obligations:
. Each Party represents that:
(i) it is a company duly incorporated and validly existing
under the laws of the country where it is incorporated and
that it has the requisite power and authority to enter into and
fully perform the Agreement ; (ii) the Agreement does not
conflict with, contravene or constitute a breach of any
contractual, financial, business, or legal obligation of any
nature to which the Party, its Affiliates and/or its employees
are subject; and as long as the Agreement is in effect,
neither Party, its Affiliates and/or its employees have nor
will undertake any obligations that constitute a breach or
otherwise materially and adversely affect the performance
of their obligations under the Agreement; (iii) it shall comply
at all times with all applicable laws and regulations; (iv) it
has obtained and will maintain, at its sole expense, all
permissions, licenses and consents required to comply with
its commitments under the Agreement; (v) it will assign
personnel who possess the requisite degrees of
qualification, experience, training and skills required to fulfill
the tasks assigned to them and who are familiar with the
requirements of the Agreement.
5.2 Provider’s obligations: Provider ensures that the Digital Services will
be
materially
performed in accordance with the Commercial Offer.
5.3 Customer’s obligations: . Customer shall access
and use the Digital Services in compliance with applicable
laws and regulations and the Commercial Offer.
Customer will also be responsible for providing the
necessary assistance, under the Agreement, and shall in
particular:
(i) provide, upon reasonable request from Provider or
spontaneously, the available information required for the
successful provision of the Digital Services by Provider; (ii)
when any activities are to be performed from or within any
Customer’s facilities, provide access to such Customer’s
facilities; (iii) comply with any requirements, including
technical requirements as the case may be, for accessing
and/or using the Digital Services as provided in the
Documentation; (iv) proceed with any necessary
acceptance tests, if and where applicable and validate the
delivery of the Digital Services; (v) notify to Provider, as
soon as possible after becoming aware of it, any event or
circumstance which is likely to delay or impact the provision
of the Digital Services. In such cases, the Parties shall
discuss on suitable ways to limit the delay or impact on the
provision of the Digital Services; (vi) assign the necessary
personnel to perform its obligations under the Agreement;
(vii) pay for the Digital Services in accordance with Section
8 and the Commercial Offer.
Customer is responsible for the protection of the login IDs
and passwords of its Users. It undertakes in particular to
keep such login IDS and passwords confidential and is
solely liable for any use of such and any activity occurring
on and/or through its Users accounts.
Customer shall be responsible for the quality, legality and
relevance of the Customer Data it transmits to Provider.
Customer ensures that it is the owner and/or has all
necessary rights to use and transmit the Customer Data in
connection with the Digital Services.
6. CUSTOMER’S ACCEPTANCE OR REJECTION OF THE DIGITAL SERVICES
6.1 Acceptance:
Once Digital Services are made available to
Customer, Customer shall control that they are compliant
with the terms and conditions of the Agreement. If
Customer considers that all or part of the Digital Services
provided are not compliant with the terms and conditions of
the Agreement, Customer shall notify Provider of such noncompliance situation. Such
notification
shall (i)
identify and
detail the Digital Services considered as non-compliant, as
well as the compliance gap and (ii) be made within a month
from the date Provider has notified the Customer that the
Digital Services are made available (or if no notification was
made by Provider, from the date when the Digital Services
are made available).
6.2 Rejection:
If no notification is made to Provider in compliance
with this Section 6, the Digital Services made available shall
be considered as fully and completely (i) compliant with the
terms and conditions of the Agreement and; (ii) accepted
by Customer who therefore waives any claim or liability
against Provider based on non-compliance of the Digital
Services.
7. PRICING, INVOICING AND TAXES
7.1 Pricing: The price payable by Customer for the Digital Services shall be
the
price set
out in the Commercial Offer.
7.2 Invoicing:
The invoice shall include, unless
prohibited by applicable mandatory law, any bonuses,
incentives, or such other arrangements contained in the
Commercial Offer (if applicable) between Customer and
Provider, and all applicable taxes, duties, and fees.
7.3 Taxes:
All prices are exclusive of any applicable
taxes, duties, or fees.
8. PAYMENT
8.1 Customer shall pay for the Digital Services in accordance with
Provider's
invoice, or
in such other manner as Provider may prescribe in its sole discretion.
8.2
Unless otherwise agreed between the Parties,
invoices are payable by bank transfer
8.3
If Customer disputes any Provider invoice, it shall
notify Provider of any disputes/claims within thirty (30)
calendar days of invoice date or credit document date and
shall pay Provider the balance due on the portion of the
invoice that Customer does not dispute in accordance with
the terms of the invoice.
8.4
In addition to any right of setoff or recoupment
permitted by law, Provider shall in its sole and absolute
discretion have the contractual right to apply:
8.4.1
any amounts owed by Provider or any
Affiliate of Provider (including but not limited to credits,
bonuses or rebates earned or payable) to Customer
(or any person or entity affiliated with Customer) under
other contractual agreements; or
8.4.2
any payments made by Customer or
credits issued to Customer under any contractual
relationship, to reduce any amounts due to Provider
under the Agreement.
8.5
Customer shall reimburse Provider for all charges
and costs, including, but not limited to, reasonable
attorneys' fees, which Provider incurs in enforcing the
Agreement.
8.6
All amounts owed to Provider by Customer under
the Agreement, or any other contractual relationship shall
become immediately due and payable on termination of the
Agreement for any reason.
9. LATE OR NON-PAYMENT
9.1 Late or non-payment:
Customer’s failure to make
full payment to Provider under the Agreement by the due
date will constitute a material breach of the Agreement.
Accordingly, without prejudice to any remedies available to
Provider under the Agreement and at law, in the event
Customer fails to make full payment:
9.1.1.
Provider shall be entitled to late payment
interest as stated in the Commercial Offer or, if not, as
stated by applicable law;
9.1.2.
to the extent permitted by applicable
mandatory law, Provider may in its sole discretion
terminate any other contract between the Parties;
9.1.3.
to the extent permitted by applicable
mandatory law, Provider may at its sole discretion
suspend the provision of the Digital Services to
Customer;
9.1.4.
all amounts owed to Provider by
Customer under the Agreement or any other
contractual relationship between the Parties shall
become immediately due.
9.2.
Any acceptance of late payments by Provider will
not alter the Agreement or act as a waiver of the payment
terms contained herein.
9.3. Change of financial status.
To the extent
permitted by applicable mandatory law, Provider may
suspend provision of any Digital Services, and not resume
provisions if:
9.3.1.
insolvency proceedings have been
initiated against Customer, and no written agreement
has been reached between Customer and Provider
detailing the ongoing delivery of Digital Services; or
9.3.2.
Customer’s financial situation
deteriorates substantially as reasonably determined
by Provider.
10. TERMINATION
10.1 Termination for material breach:
Without
affecting any other right or remedy available to the other
Party, if a Party materially breaches its obligations under
the Agreement (the “Breaching Party”), the other Party
may terminate the Agreement with immediate effect by
giving written notice to the Breaching Party:
10.1.1.
if the Breaching Party fails to remedy
such material breach within thirty (30) calendar days
of being notified in writing by the other Party to do so;
or
10.1.2.
where the Breaching Party’s material
breach is incapable of remedy.
10.1.3 Suspension
Should Customer be in
breach of any of its material obligations under the
Agreement, Provider may suspend the provision of
the Digital Services, without any liability whatsoever to
Customer.
10.2. Termination for dissolution.
Either Party may
terminate the Agreement, immediately without notice in the
event of dissolution of either Party, whether by operation of
law or otherwise.
10.3. Termination for bankruptcy.
To the extent
permitted by applicable mandatory law, either Party may
terminate the Agreement, immediately without notice if, in
the opinion of the terminating Party, the other Party, its
principle, or any owner or guarantor of that Party’s business
becomes insolvent or is likely to become insolvent.
10.4. Provider’s right to terminate for change of Control or assignment.
Provider may terminate the Agreement immediately upon:
10.4.1.
any change of Control of Customer, as
defined by applicable law, unless prior to the
occurrence of such change of Control, Provider is
notified of the change in writing and gives written
approval; or
10.4.2.
any attempted assignment by Customer
of the Agreement or any right or interest arising from
the Agreement without the prior written consent of
Provider.
10.5 Effects of termination
Upon termination of the
Agreement for any reason whatsoever, (i) Customer shall
immediately refrain from using the Digital Services and
Marks in any form whatsoever; (ii) each Party shall, except
if expressly provided otherwise in the Agreement, return or
destroy from their information systems all data provided by
the other Party.
10.6.
All sums owed by Customer to Provider or vice
versa shall become immediately due and payable. To
ensure prompt payment, each Party agrees to cooperate
and work with the other in determining and processing all
such amounts due. Provider shall have the right to apply
any amounts owed by Provider or any Affiliate (including but
not limited to credits, bonuses or rebates earned or payable
under the Agreement) to Customer (or any person or entity
affiliated with Customer) in reduction of any amounts due to
Provider.
10.7.
In case Provider terminates the Agreement
following a material breach of Customer, (i) Provider will not
refund any pre-paid Digital Services to Customer; (ii)
Customer will pay the Provider the price set out in the
Commercial Offer for the Digital Services for entire Term.
11. CONFIDENTIALITY
11.1. Subject to Section 11.4 below, each Party agrees that it will not
disclose
to any
person any Confidential Information of, or relating to, the other Party which has been
disclosed
to it or
which has come into its possession as a result of the execution of the Agreement or other
contractual
relationship between the Parties for the duration of the Agreement or other contractual
relationship between
the Parties and for an additional period of five (2) years from termination of the
abovementioned
contractual relationships between the Parties.
11.2. Confidential Information may only be shared with employees,
Affiliates,
and agents of
the Parties in furtherance of the purpose of the Agreement, always subject to all relevant
applicable laws,
including but not limited to antitrust laws and regulations.
11.3. Each Party will protect the Confidential Information using the same
degree
of care it
employs for its own similar information, but in any case, not less than a reasonable degree
of
care.
11.4. Nothing in the Agreement shall prohibit disclosure of information
which:
(i) is
already in the public domain; (ii) becomes part of the public domain after disclosure to the
receiving Party
other than as a result of a wrongful act of such Party; (iii) is received from a third party
providing that
it was not acquired directly or indirectly by such third party from the receiving Party; or
(iv)
is required
to be disclosed by law or any governmental or regulatory body or agency.
12. LIABILITY
12.1. Regardless of the basis for liability, any claims for compensation
made by
Customer
will be subject to the limitations stated in this Section 12.
12.2. To the extent permitted by applicable mandatory law, Provider shall
not be
liable for
any loss, damages or penalties incurred by Customer arising from or in connection with the
fulfilment of
Customer’s obligations towards third parties.
12.3. LIMITATION OF LIABILITY. SUBJECT TO SECTION 12.4 (DISCLAIMER) BELOW,
AND
UNLESS
OTHERWISE PROHIBITED BY APPLICABLE MANDATORY LAW, PROVIDER’S TOTAL LIABILITY TO CUSTOMER FOR
ALL
DIRECT
DAMAGES INCURRED BY CUSTOMER UNDER THE AGREEMENT SHALL NOT EXCEED THE ACTUAL DAMAGES
SUFFERED BY
CUSTOMER
WHICH IN ANY EVENT IS LIMITED TO THE TOTAL AMOUNT INVOICED BY PROVIDER TO CUSTOMER FOR THE
TWELVE (12)
MONTHS PRECEDING THE DATE OF THE LOSS OR DAMAGE FOR THE SPECIFIC DIGITAL SERVICE THAT
RESULTED
IN SUCH
CLAIMED DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL,
INDIRECT,
INCIDENTAL, SPECIAL, EXEMPLARY, TREBLE, PUNITIVE, MULTIPLE OR ENHANCED DAMAGES, OR FOR LOST
PROFITS, LOST
REVENUES, LOST DATA OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THE AGREEMENT OR
EITHER PARTY’S
PERFORMANCE HEREUNDER.
12.4. DISCLAIMER. EXCEPT IF EXPRESSLY PROVIDED IN THE AGREEMENT AND TO THE
EXTEND PERMITTED
BY APPLICABLE MANDATORY LAWS, THE DIGITAL SERVICES AND ALL MATERIALS INCLUDED IN THE DIGITAL
SERVICES ARE
PROVIDED TO CUSTOMER ON AN “AS-IS,” “AS-AVAILABLE” BASIS AND PROVIDER EXPRESSLY DISCLAIMS
ALL
COVENANTS OR
WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR COMPATIBILITY WITH OTHER SYSTEMS,
SOFTWARE
OR SERVICES.
TO THE EXTEND PERMITTED BY APPLICABLE MANDATORY LAWS, PROVIDER MAKES NO REPRESENTATIONS OR
WARRANTY AS TO
THE AVAILABILITY, ACCURACY, COMPLETENESS, CURRENCY OR RELIABILITY OF THE DIGITAL SERVICES OR
ANY
SERVICES,
PRODUCTS, DATA, INFORMATION, OPINIONS, AND MATERIALS AVAILABLE THROUGH THE DIGITAL SERVICES.
TO
THE EXTEND
PERMITTED BY APPLICABLE MANDATORY LAWS, PROVIDER MAKE NO REPRESENTATIONS OR WARRANTIES THAT
USE
OF THE
DIGITAL SERVICES OR THE MATERIALS PROVIDED THROUGH THE DIGITAL SERVICES WILL BE COMPLETELY
SECURE,
VIRUS-FREE, OR ERROR-FREE. THE CUSTOMER IS RESPONSIBLE FOR VERIFYING OR HAVE VERIFIED ANY
INFORMATION
OBTAINED FROM THE DIGITAL SERVICES BEFORE RELYING ON IT. USE OF THE DIGITAL SERVICES IS AT
THE
CUSTOMER’S
SOLE RISK.
12.5. The limitation of liability set out in this Section 12 shall not apply
to:
12.5.1. death or bodily injury caused by the intentional acts or gross
negligence of
Provider;
12.5.2. damages arising directly from fraud or willful repudiation of the
Agreement by
Provider;
12.5.3. any other liability that may not be excluded or limited under
applicable
mandatory
law; or
12.5.4. a Party’s obligation to indemnify and defend the other against
third-party claims
provided in Section 13 hereof.
12.6. Limitation of Action. To the extent permitted by applicable mandatory
law,
no suit or
claim based on any legal claim, regardless of form, arising out of or in any way connected
with
the
Agreement, may be brought by Customer (or any party claiming by, through, or under Customer)
more than one
(1) year after the event giving rise to such claim.
13. INDEMNITY
13.1. Indemnification by Customer. Customer shall indemnify Provider against
any
losses,
damages, liabilities, claims, costs, or out-of-pocket expenses (including any legal fees)
incurred by
Provider in connection with the Agreement and arising from, including but not limited to:
13.1.1. any use, misuse, distribution or redistribution of the Digital
Services
or other
actions taken (or not taken) in relation to the Digital Services by Customer, its officers,
employees,
Affiliates, agents, suppliers, or subcontractors;
13.1.2. Customer’s failure to obtain the relevant business permits, licenses
and/or
approvals;
13.1.3. Customer’s failure to promptly pay any sales, excise, income, or
other
tax, or from
Customer’s failure to correctly file any required tax returns; and/or
13.1.4. Customer’s breach of the Agreement between the Parties and/or any
applicable laws
and/or regulations, except to the extent such losses are caused by the fraud, gross
negligence,
or willful
misconduct of Provider in the performance of its obligations under the Agreement.
13.2. Intellectual Property Indemnification
Provider shall indemnify Customer against any losses, damages, liabilities, claims, costs, or
out-of-pocket
expenses (including any legal fees) incurred by Customer arising from any claim or suit
alleging
that the
use of the Digital Services or Marks infringes any trademark, copyright, patent of third
parties
or another
intellectual property right, provided however that:
13.2.1. this Section 13 does not cover, and Provider has no obligation
hereunder
for,
infringement claims or suits arising from Customer’s failure to use the Digital Services or
Marks in
accordance with the Agreement; and
13.2.2. Customer shall provide Provider with prompt notice of the claim or
suit
giving rise
to such obligation; and
13.2.3. Provider shall have the sole control of the defense and of all
negotiations for
settlement of such claim or suit. Customer shall cooperate with Provider in the defense or
settlement of any
such claim or suit.
13.3. If a claim or suit for which Provider is required to indemnify
Customer
under this
Section 13 is brought or is likely to be brought, Provider may: (i) modify the Digital
Services
or Marks so
as to provide Customer with functionally equivalent and non-infringing Digital Services; or
(ii)
obtain a
license or access rights for Customer to continue use of the Digital Services for the Term
at no
additional
cost to Customer; or (iii) if Provider in its sole discretion determines that neither of the
foregoing
alternatives is commercially reasonable, then Provider may at its option terminate this
Agreement and
promptly refund the pro rata portion of the amounts paid by Customer for the applicable
Digital
Services for
the applicable Term.
13.4. Customer shall indemnify Provider against any losses, damages,
liabilities, claims,
costs, or out-of-pocket expenses (including any legal fees) incurred by Provider arising
from
any claim or
suit alleging that the use of Customer Data in compliance with the Agreement infringes any
trademark,
copyright, patent of third parties or another intellectual property right.
13.5. THIS SECTION 13 STATES EACH PARTY'S ENTIRE POTENTIAL LIABILITY AND THE OTHER
PARTY'S SOLE AND
EXCLUSIVE REMEDY FOR THIRD PARTY CLAIMS OR SUITS BASED ON AN INFRINGEMENT OF SUCH THIRD
PARTY’S
INTELLECTUAL PROPERTY RIGHTS.
13.6. This Section 13 shall survive termination of the Agreement.
14. INTELLECTUAL PROPERTY
14.1. Provider retains all rights, titles, and interests, including
intellectual
property
rights, attached to the Digital Services and Marks.
14.2. Unless otherwise stated in the Agreement, neither Party grants nor
assigns
intellectual property rights to the other Party within the framework of this Agreement. Any
reproduction
and/or representation by a Party of any protected asset belonging to the other Party,
without
prior
authorization of the latest, is strictly prohibited.
14.3. Customer agrees not to oppose, invalidate, or impair the rights,
titles
and interests,
including intellectual property rights, attached to the Digital Services and Marks.
14.4. Non-Disparagement. Customer undertakes not to disparage, either
directly
or
indirectly, the Marks or Digital Services or to bring the Marks or Digital Services into
disrepute. In this
respect, Customer shall notably refrain from any public statement or comment, press release
or
communication
on social networks referring negatively to the Marks or Digital Services including but not
limited to: (i)
the performance, quality, technology, durability, or capacities of the Digital Services;
(ii)
the validity,
registration, or ownership of the Marks; or (iii) the reputation or conduct of Provider or
any
of Provider's
representatives, employees, subcontractors, agents, or service providers.
14.5. Customer undertakes not to organize advertising or more generally any
communication of
any nature whatsoever, which could harm the name and/or reputation of Provider, the Marks
and/or
the Digital
Services.
15. COMPLIANCE
15.1. Ethics and anti-bribery
15.1.1. As of the signature date of the Agreement and Conditions, or the
placement of an
Order by Customer when the Agreement is not signed, each Party undertakes to have or to
implement and
maintain an anti-bribery and anti-corruption compliance program, adapted to its own
situation
and able to
detect corruption and promote a culture of integrity in its organization. Each Party
acknowledges a “zero
tolerance” policy regarding bribery and corruption and agrees to comply with applicable laws
and
regulations
regarding the fight against bribery and corruption.
15.1.2. Each Party agrees to refrain from: (i) offering, promising or
giving;
and from (ii)
attempting or conspiring to offer, promise or give, any undue pecuniary or other advantage,
whether directly
or through intermediaries, to a public or private official or representative for that
official
or
representative or for a third-party, in order that the official or representative acts or
refrains from
acting in relation to the performance of official duties, in order to obtain or retain
business
or other
improper advantage. Provider may conduct compliance audits on Customer to ensure its
compliance
with the
above commitments.
15.1.3. In the event Customer fails to comply with the requirements of this
Section 15,
Customer undertakes to immediately inform Provider and to attempt to correct the
non-compliance
within a
reasonable timeframe. Notwithstanding the above, Provider reserves the right to take any
appropriate
measures to mitigate corruption risk, including termination of the Agreement, and/or any
other
contractual
relationship between the Parties.
15.1.4. Customer shall comply with and shall require that all of its
commercial
partners
(customers and suppliers) and sub-contractors comply with all applicable laws, statutes,
codes
and
regulations including but not limited to those relating to anti-corruption, anti-bribery,
anti-money
laundering, fraud, health and safety, environment (as well as avoid any practices that may
cause
damage to
it, especially, but not limited to, regarding any practices that can contribute to the rise
in
deforestation, burnt land and soil erosion), labor law, human rights, harassment, and
discrimination.
15.1.5. Customer shall conduct its business with integrity, ethics, and
transparency, and
shall adopt, promote, and comply with fundamental rules in the areas of human rights, labor,
environmental,
ethics, fraud, anti-bribery, and anti-corruption standards. Provider makes available to its
customers an
Ethics Line which they are entitled to use in case of violations of the Provider Code of
Ethics
(available
at the following link: https://ethique.michelin.com/en/)
or
the anti-corruption compliance program. Alerts can be submitted through the following link:
http://michelingroup.ethicspoint.com/.
15.2. Data protection
15.2.1. General provision. Each Party undertakes, for the personal data
processing
operations it carries out for its own purposes under and in the framework of the Agreement
to
comply with
all obligations arising from the application of any applicable data protection and privacy
legislation and
regulatory requirements in force and as amended from time to time, that may apply to
personal
data
processed, including those of the General Data Protection Regulation (EU/2016/679) and its
possible updates
and existing local laws, or any other data protection legislation applicable outside of the
European Union
(together the "Data Protection Legislation").
15.2.2. Contractual relationship management. Customer acknowledges that,
Provider, as data
controller, or the like, of the personal data received from Customer, processes personal
data
for the
purpose of managing operations relating to the contractual relationship with its Customers,
in
compliance
with the Data Protection Legislation. The processing is based on Provider’s legitimate
interest
related to
the performance of the Agreement. Accordingly, unless otherwise provided by applicable Data
Protection
Legislation, Customer undertakes to inform data subjects (for example, its employees) of
such
personal data
processing and any personal data processed under the Agreement concerned is kept for the
duration of the
contractual relationship plus the legal limitation periods.
15.2.3. Processed data may be used by Provider's relevant departments and,
where
appropriate, its sub-processors, some of which may be located outside the country of origin
of
the personal
data, such as, the EU, the USA and India. In order to provide adequate safeguards for the
transfer of such
personal data, cross-border data transfer agreements incorporating standard clauses of the
European
Commission have been signed between Provider and its sub-processors. Transfers within the
Michelin Group may
also take place and are governed by the Michelin Group’s Binding Corporate Rules which have
been
validated
by the French Data Protection Authority (available at www.michelin.com).
15.2.4. Where personal data is transferred outside of the European Economic
Area, Provider
shall ensure appropriate safeguards are implemented and/or adopted, including but not
limited to
the
Standard Contractual Clauses.
15.2.5. To the extent dictated by applicable mandatory law, data subjects
shall
benefit,
under the conditions stipulated by law, from a right of access, rectification, portability,
restriction of
processing, opposition for legitimate reasons, and deletion. Data subjects seeking to
exercise
their rights
shall contact Provider. If the data subject’s requests are unsatisfied, they may file a
complaint with the
relevant data protection authority.
15.3. Export control
15.3.1. Customer shall comply with all applicable laws and regulations with
regard to the
supply, sale, provision, transfer, export, re-transfer, or re-export of the Digital
Services,
including but
not limited to, those relating to Trade Restrictions. For the avoidance of doubt, all
applicable
laws and
regulations could include those originating out of the United Nations, the European Union,
the
OSCE, or the
United States of America.
15.3.2. Customer shall not cause Provider to, either directly or indirectly,
risk any
potential violation of any applicable Trade Restrictions. Furthermore, Customer will not
supply,
sell,
provide, transfer, export, re-transfer, re-export, otherwise make available or use any
Digital
Service
supplied by Provider in order to circumvent, evade or avoid any applicable Trade
Restrictions.
15.3.3. Where Provider has reasonable cause to suspect that any Digital
Service
may be or
has been supplied, sold, provided, transferred, exported, re-transferred, re-exported,
otherwise
made
available to any jurisdiction targeted by relevant Trade Restrictions, or to a Restricted
Person, or for any
use, purpose or activity which is prohibited or otherwise restricted under Trade
Restrictions,
Provider
reserves the right to:
15.3.3.1. immediately suspend its performance under this Agreement or any
contractual
relationship;
15.3.3.2. request further information or documentary evidence from Customer,
including but
not limited to licenses, end user certificates, shipping, or commercial documentation, in
order
to verify
the end use(s) or end user(s) of the Digital Services; or
15.3.3.3. take any other appropriate measures regarding its commercial
relationship with
Customer.
15.3.4. Customer certifies that, as of the date hereof, neither Customer,
nor
any of
Customer’s group companies, nor any of their respective directors or officers is a
Restricted
Person.
Customer shall immediately notify Provider if any of the abovementioned Customer, Customer
group
companies,
directors, or officers becomes a Restricted Person.
15.3.5. Customer shall indemnify and hold harmless Provider from and against
any
losses,
costs, claims, causes of action, damages, liabilities, and expense, including attorneys’
fees,
any expense
of litigation or settlement, and court costs, arising from any non-compliance with Trade
Restrictions or
Michelin Group Positions by Customer. Customer shall be responsible for any act or omission
of
Customer, its
officers, employees, Affiliates, agents, suppliers, or subcontractors at any tier, in the
performance of any
of its obligations under this Section 15.3.
15.3.6. Customer shall respect the Michelin Group Positions, which may
contain
more
restrictive provisions than the Trade Restrictions defined herein.
16. FORCE MAJEURE
16.1. Impacts of Force Majeure. Each Party shall be relieved from liability
for
a failure to
perform any obligation under the Agreement during such period and to the extent that the due
performance
thereof by such Party is prevented by reason of a Force Majeure Event.
16.2. To the extent permitted by applicable mandatory law or regulation,
Customer will not
be relieved of its duty to make payments to Provider due to any Force Majeure Event.
16.3. Notice and duty to mitigate. A Customer desiring to invoke a Force
Majeure
Event
hereunder shall give notice to Provider as soon as possible but no later than 30 calendar
days
after the
commencement of such Force Majeure Event. Customer shall not be discharged from liability
for
any
non-performance caused by such Force Majeure Event should it fail to notify Provider in
accordance with this
Section 16.3.
16.4. Both Parties shall make all reasonable efforts to prevent and reduce
the
effect of any
non-performance of the Agreement caused by a Force Majeure Event.
17. GOVERNING LAW, JURISDICTION, AND DISPUTE RESOLUTION
17.1. The Agreement will be governed by the laws of the legal jurisdiction
where
the
Provider entity issuing the General Terms and Conditions is incorporated.
17.2. Where applicable, application of the United Nations Convention on
Contracts for the
International Sale of Goods is hereby excluded.
17.3. In the event of a dispute arising from or in connection with the
Agreement, and before
filing any action in a court of competent jurisdiction, the Parties may attempt in good
faith to
resolve
such dispute within thirty (30) calendar days by negotiation between representatives who
have
authority to
settle the dispute.
17.4. Notwithstanding Section 17.3 above, in the event a dispute cannot be
resolved through
negotiation, the courts of the competent jurisdiction in the location of the Provider’s
registered office
will have jurisdiction to settle all disputes arising from or in connection with the
Agreement.
17.5. Notwithstanding the other provisions of this Section 17, to the extent
permitted by
applicable mandatory law, Provider may also seek equitable relief or an interim injunction
in a
court of
competent jurisdiction.
18. MISCELLANEOUS TERMS
18.1. Subcontracting. Provider may subcontract any or all of its obligations
under the
Agreement without notice to Customer. Notwithstanding the foregoing, Provider will be
responsible for the
acts and omissions of any such subcontractor.
18.2. Assignment. Customer may not assign the Agreement, or any of its
rights or
obligations
hereunder, without Provider’s prior written consent. Any assignment by Customer shall be
null
and void. The
Agreement and any right hereunder or interest herein may be assigned at any time by Provider
to
an
Affiliate.
18.3. Survival. All obligations of the Parties pertaining to payment,
reimbursement,
indemnification, warranty, and any provision that is intended to come into or continue in
force,
and all
obligations hereunder which by the terms of the Agreement arise at or after termination,
shall
survive any
termination or expiry of the Agreement.
18.4. Severability. If any Section or part of a Section of the Agreement is
declared
illegal, null, or unenforceable, this illegality, nullity or unenforceability shall not
affect
the legality,
validity, or enforceability of the other contractual clauses. The Parties shall negotiate in
good faith to
replace the invalid provisions with valid ones to achieve the intended commercial or
business
purpose of the
illegal, null, or unenforceable provision.
18.5. Language and Notices. The Agreement has been prepared in the language
of
the legal
jurisdiction where the Provider is incorporated. All notices and other communications
required
or permitted
under the Agreement and any other contractual relationship between the Parties shall be in
writing in the
language of the Agreement, a language mutually agreed by the Parties, or accompanied by a
certified
translation, all of such shall be valid, subject to their being sent to the addresses
referred
to in the
introduction of the Agreement (or to other addresses which the Parties shall have
communicated
to each other
in written form), by courier, registered or express mail or mail under acknowledged receipt.
In
the event of
a conflict between any notice in the language of the Agreement and its accompanied certified
translation,
the version of the notice in the language of the Agreement shall prevail. Any Party may
change
its address
for such communications by giving appropriate written notice to the other Party conforming
to
this Section
18.5.
18.6. Right to Audit. Customer will maintain accurate records of its
compliance
with the
Agreement during the Term and for a minimum of five (5) years after expiration or
termination of
the
Agreement and will promptly provide these records to Provider upon its request. Provider may
only request
these records once in any 6 months period. If the records are not timely produced, or if
Provider has
reasonable grounds to question their accuracy, Provider may, at its own expense, engage an
independent
auditor to audit Customer’s use of the Digital Services. Any such audit will be conducted
upon
reasonable
notice to Customer and during Customer’s Normal Business Hours. Customer will reasonably
cooperate with
efforts to conduct the audit, including providing the auditor, in a timely fashion, with
access
to its sites
and offices as well as all relevant information regarding its compliance with the Agreement.
If
the records
provided by Customer or if the audit determines any unauthorized use of the Digital
Services,
Provider will,
without prejudice to any other remedies available to Provider under the Agreement or the
law, be
entitled to
invoice Customer (i) for all such unauthorized use; (ii) of the expense and costs related to
the
audit. In
addition, Customer understands that the Digital Services may enable Provider to track and
monitor the usage
made by Customer of the Digital Services.
18.7. Entire Agreement. The Agreement and anything incorporated by reference
herein
constitute the entire agreement between the Parties and shall supersede all previous written
documents or
correspondence (if any), contemporaneous agreements, understandings and communications,
whether
written or
oral, on the subject matter hereof.
18.8. Execution/Counterparts. To the extent applicable, upon signature, the
Agreement may be
executed in any number of counterparts, each of which shall be deemed an original but all of
which taken
together will constitute one and the same instrument. The Agreement have been executed by
the
Parties’ duly
authorized representatives and electronic signature of the Agreement made through the means
of
Electronic
Transmission shall be as legally binding as a physical signature.
18.9. Relationship of the Parties. The Agreement applies to the provision of
Digital
Services to Customer and is not intended by either Party to constitute a franchise
relationship
between the
Parties. Customer has not paid a franchise fee to Provider and is not operating pursuant to
a
business
system supplied by Provider. Further, the Agreement shall not be construed to create a joint
venture,
association, partnership, employment, or other force of business organization or agency
relationship between
Customer and Provider.
18.10. Waiver. Either Party’s failure to enforce or exercise any of its
rights
under any
provision of the Agreement shall not be construed as a waiver of such rights. No custom,
practice, or course
of dealing constitutes a waiver of any provision of the Agreement.
18.11. Amendments. The Agreement may be amended only by a written document
signed by both
Parties specifically noting their intent to amend.
18.12. Conflicts. If there is any conflict or ambiguity between any of the
provisions of the
Commercial Offer, these General Terms and Conditions, their Appendices and subsequent
Regional
Terms
Schedules, such conflict shall be resolved in accordance with the following order of
precedence:
Commercial
Offer, Regional Terms Schedules, these Terms and Conditions and then their Appendices.
18.13. If there is any conflict or ambiguity between any of the provisions
of
the Agreement
and any Customer documentation (such as orders, general terms of purchase, etc.) the
Agreement
shall
prevail.
