General terms and conditions : purchase of a science-education assistance server license (Intranet)

Use of all or part of the software implies acceptance by the Licensee of all of the clauses and stipulations in the licensing contract including the present conditions, as well as recognition of their complete and total validity, including the limitations of the perimeters of use of the software appearing on the order form, the guarantee (article 9) and Odile Jacob Multimedia’s responsibility (article 10).

In the event that the licensee does not accept all of the clauses and stipulations in the licensing contract, the licensee does not have any right of use whatsoever. If the licensee has acquired the software on a tangible support such as a a CD-Rom without having had the possibility of consulting all of the clauses and stipulations in the licensing contract, and does not accept them entirely, the licensee will have the possibility or requesting a refund of the price paid, in conformance with the order form or not to pay this price on condition (I) of not using the software, and (II) of returning it to Odile Jacob Multimedia within fifteen (15) calendar days of delivery.

Odile Jacob Multimedia,
a limited company with a capital of 1 206 800 francs,
with headquarters at 15 rue Soufflot, 75005 PARIS, FRANCE
registered in the Register of Commerce and Companies of Paris, under registration number 403 423 189,
duly represented, and hereafter referred to as “ODILE JACOB MULTIMEDIA”, the party of the first part,
and the signatory of the Order form, hereafter referred to as “LICENSEE”, the party of the second part, hereafter referred to individually as a “Party” and collectively as the “Parties”, have concluded an Order Form, for the delivery of the software, to which the Parties have agreed to associate each of the following clauses and stipulations :

1. PREAMBULE

ODILE JACOB MULTIMEDIA is specialised in developing and publishing multimedia products, particularly educational software.

ODILE JACOB MULTIMEDIA has developed a collection of science-education assistance servers (ITmaths, ITgeometry, ITphysics-Chemistry) intended to assist teachers of mathematics in preparing and leading practice sessions (hereafter “Science-education assistance server”).

The Science-education assistance server is principally composed of an environment that allows pupils in Years 7 to 10 to consult their lessons, do exercises and evaluate their knowledge, and teachers to organise the practice sessions in such a way as to adapt their contents according to pupils’ needs.

The LICENSEE has declared an interest in the Science-education assistance server, and the Parties have agreed to concretise the terms and conditions upon which the ITmaths Software published by ODILE JACOB MULTIMEDIA is provided to the LICENSEE, dependent on acceptance of the present stipulations.

2. DEFINITIONS

2.1. “Software” designates the Science-education assistance server in its existent version on the day of the signature on the Order Form supplied by ODILE JACOB MULTIMEDIA to the LICENSEE to function on its computer environment, as specified on the Order Form.

2.2. “Order Form” designates the order form with which the LICENSEE ordered the software.

2.3. ”Licensing Contract” designates the present conditions as well as the Order Form.

2.4. “Documentation” designates the documentation accompanying the Software and supplied by ODILE JACOB MULTIMEDIA to the LICENSEE, which can be completed by any and all updates and/or documentation subsequently supplied by ODILE JACOB MULTIMEDIA for which the LICENSEE does not send ODILE JACOB MULTIMEDIA written notification of any reservations at the time of delivery.

2.5. “Perimeter of Use” designates the entire range of the license granted by ODILE JACOB MULTIMEDIA to the LICENSEE, as specified in the Order Form.

2.6. “Implantation Site” designates the site where, in conformance with the Licensing Contract, the LICENSEE is authorised to use the Science-education assistance server.

3. PURPOSE

The Licensing Contract’s purpose is to define the terms and conditions by which:

(i) ODILE JACOB MULTIMEDIA grants the LICENSEE a user’s license for the Science-education assistance server;

(ii) the LICENSEE pays the price appearing on the Order Form.

4. LICENSE GRANTING

4.1. In exchange for paying the price appearing on the Order Form, ODILE JACOB MULTIMEDIA grants the LICENSEE, for the duration of the Licensing Contract and for the entire world, a personal, non-exclusive and non-transferable license, including the rights defined in the present article, to the Science-education assistance server referred to on the order form and to any Documentation or other related products identified on the Order Form.

4.2. It is stipulated that the license granted to the LICENSEE exclusively includes:

(i) the right to use the Science-education assistance server on the Implantation Site;
(ii) the right to reproduce the Science-education assistance server and its Documentation.

The exercise of these rights is dependent on the strict respect of the Perimeter of Use described on the Order Form.

4.3. No other right is granted by ODILE JACOB MULTIMEDIA excluding legal exceptions stipulated in Article L. 122-6-1 - II to IV of the Intellectual Property Code.

4.4. The LICENSEE promises to indicate and conserve in a register the number of copies of the Software reproduced within the framework of the Order Form, as well as the machines upon which the Software is installed. This register must be made available to ODILE JACOB MULTIMEDIA upon request.

4.5. The LICENSEE promises not to decompile or disassemble any Software outside of the legal framework defined in article L. 122-6-1 II a IV of the Intellectual Property Code.

4.6. ODILE JACOB MULTIMEDIA is and remains holder of all the rights attached to the Software and any related Documentation, with the exception of any rights specifically granted within the framework of the Licensing Contract.

5. DELIVERY – INSTALLATION

5.1. The Science-education assistance server is delivered by ODILE JACOB MULTIMEDIA to the LICENSEE on a CD-ROM after reception of the Order Form.

5.2. The LICENSEE has sole responsibility for installing the Science-education assistance server.

5.3. The LICENSEE acknowledges that reception of the Science-education assistance server takes places at the time of delivery of the Software supplied on the CD-ROM.

6. PROVISION OF SERVICE

On condition of payment by the LICENSEE of all of the sums due according to the Licensing Contract, ODILE JACOB MULTIMEDIA will provide the LICENSEE with a hotline for one year starting from the conclusion of the Order Form, in a professional manner and with all the skills and care that this requires.

This service is available at the following e-mail address and telephone number: support@tdmaths.com: + 33 1 44 41 64 93.

7. LENGTH OF TIME

The Licensing Contract will take effect starting from delivery of the CD-ROM and for the entire legal length of protection of royalties.

8. PRICE

8.1. Financial Terms

The LICENSEE promises to pay the price established on the Order form, in exchange for the rights that are granted to him in the Licensing Contract.

8.2. Terms of Payment

The LICENSEE promises to pay the price established on the Order Form no later than sixty (60) days after the delivery date of the CD-ROM.

Any delay in payment of all are part of the above-mentioned sums will be increased by a calculation based on application of the legal rates dues by the LICENSEE.

8.3. Taxes and Duties

Payments due for the Licensing Contract do not include taxes and duties and the LICENSEE agrees to pay any taxes or duties, including, but not restricted to, the taxes and duties attached to sales, use, rental, reception, personal property and others (exception made, however, of taxes due on income to ODILE JACOB MULTIMEDIA), which are susceptible to being fixed or collected within the framework of executing the Licensing Contract.

9. GUARANTEES

9.1. Conformity

ODILE JACOB MULTIMEDIA guarantees the LICENSEE that the Science-education assistance server will perform in a manner conforming to the specifications described in the related Documentation, for a period of two hundred (200) calendar days starting from delivery of the CD-Rom containing the Science-education assistance server, on condition that the LICENSEE uses the Science-education assistance server in a manner conforming to said Documentation.

This guarantee grants the LICENSEE the right to request that ODILE JACOB MULTIMEDIA do its utmost to correct, revise or replace the malfunctioning Software, at ODILE JACOB MULTIMEDIA’s expense, only on condition that the LICENSEE has provided ODILE JACOB MULTIMEDIA within the above-cited guarantee period, with a detailed list of the malfunctions of the malfunctioning Software.

The guarantee expressed in article 9 of the Contract does not apply when the malfunction of the Science-education assistance server is due to:

(i) use of the Software by the LICENSEE, in a manner that is non-conform to the instructions provided by ODILE JACOB MULTIMEDIA;

(ii) a correction, modification or conversion of the Software performed by the LICENSEE without prior written agreement from ODILE JACOB MULTIMEDIA;

(iii) malfunction of the LICENSEE’s software or hardware;

(iv) any cause which depends on the LICENSEE.

In addition, ODILE JACOB MULTIMEDIA is freed from its obligation of guarantee in any case in which the LICENSEE has not paid or has paid late the sums dues by the terms of the Licensing Contract.

Under no circumstances does ODILE JACOB MULTIMEDIA guarantee uninterrupted functioning of the Software, conformity of the Software to the LICENSEE’s requirements or inter-operability of the Software’s functions with the software and hardware used by the LICENSEE.

With the exception of the guarantee granted by the terms of the present article, ODILE JACOB MULTIMEDIA does not grant any other guarantees.

9.2. Non-eviction

ODILE JACOB MULTIMEDIA guarantees the LICENSEE that they hold the rights allowing them to grant the LICENSEE the rights defined in article 4 of the Licensing Contract .

ODILE JACOB MULTIMEDIA promises to defend or come to terms with, at their discretion, and at their expense, any legal proceedings undertaken against the LICENSEE, on the basis of violation of royalties or industrial secret belonging to a third party, caused by using the Software in the conditions defined in the Licensing Contract, unless the LICENSEE:

(i) omits to promptly inform ODILE JACOB MULTIMEDIA about such proceedings;

(ii) does not provide ODILE JACOB MULTIMEDIA with all the information and assistance required for handling or defending this action;

(iii) does not allow ODILE JACOB MULTIMEDIA alone to ensure their defence or any out-of-court settlement.

The preceding clauses not withstanding, ODILE JACOB MULTIMEDIA does not grant any guarantees in the event of legal proceedings for counterfeiting if:

(i) the Software was modified by anyone but ODILE JACOB MULTIMEDIA;

(ii) in case of combination of the Software with other products not supplied by ODILE JACOB MULTIMEDIA, the liability for counterfeit or any other violation of rights, including the right to intellectual property, is borne by said products;

(iii) in case of combination of the Software with other products software or hardware not supplied by ODILE JACOB MULTIMEDIA, the liability for counterfeit or any other violation of any rights, including the right to intellectual property, is borne by the other software or hardware;

(iv) the Software is used by the LICENSEE in a manner that is non-conform to the Documentation;

(v) use of the Software constitutes a violation of the obligations in the Licensing Contract .

9.3. The terms of the Licensing Contract define the entire responsibility of ODILE JACOB MULTIMEDIA and the LICENSEE’s only recourse, to the exclusion of any other guaranties.

10. RESPONSIBILITY

10.1. It is specifically agreed between the Parties that ODILE JACOB MULTIMEDIA can only be held responsible for damages resulting directly from errors caused to the LICENSEE by itself or its agents because of use of the Science-education assistance server.

10.2. Under no conditions can ODILE JACOB MULTIMEDIA be held responsible for any indirect damage, particularly loss of earnings or immaterial damages consequent to using the Software by the LICENCIE.

10.3. In any case, ODILE JACOB MULTIMEDIA’s responsibility in terms of the Licensing Contract can not exceed the price paid by the LICENSEE according to the terms of the Licensing Contract.

11. RESILIATION

11.1. In the event of non-execution by ODILE JACOB MULTIMEDIA of an obligation in the terms of the Licensing Contract, the LICENSEE will address ODILE JACOB MULTIMEDIA a registered letter with return receipt requested, formally summoning it to perform its obligations. If within a period of one (1) month following reception of this letter of injunction, ODILE JACOB MULTIMEDIA’s obligations have not been met, the LICENSEE will have all rights and faculties to notify termination of the Licensing Contract by registered letter with return receipt requested.

11.2. ODILE JACOB MULTIMEDIA has the right, at its discretion, to terminate the license granted by virtue of the Licensing Contract, if the LICENSEE:

(i) does not pay the price established on the Order Form, or any other sum due according to the terms of the Licensing Contract, and when non-payment of said sums continues fifteen (15) calendar days after reception of a letter of injunction addressed by ODILE JACOB MULTIMEDIA;

(ii) does not perform one or more of its obligations by virtue of the Licensing Contract, and when this non-execution continues for thirty (30) calendar days after reception of a letter of injunction by ODILE JACOB MULTIMEDIA.

12. END OF CONTRACTUAL RELATIONS

In the event of the termination of contractual relations for whatever cause, the LICENSEE must immediately cease and desist from using the Software within ten (10) days following the effective end of contractual relations, and certify in writing to ODILE JACOB MULTIMEDIA that the Software and all related elements have been removed from the LICENSEE’s computer system, and that any copies of the Software and its Documentation have been destroyed.

13. FORCE MAJEURE

13.1. The Parties will not be deemed responsible, or considered as having failed in their obligations, except for the price due by the terms of the Licensing Contract, for any delay or non-execution, when the cause of the delay or non-execution is due to a case of force majeure, on condition that the other Party is promptly notified of the case of force majeure.

13.2. By force majeure, the parties include, non-restrictively, fire, bodily harm, hurricanes, flooding, natural disasters; legal decisions; the acts, delays or inertia of civil, military or governmental authorities; strikes, lockouts, protest movements, rioting, insurrection, sabotage and war; mechanical breakdown, destruction, or damage to equipment, buildings or other property; the unavailability of staff, material, supplies, spare parts, equipment, etc; interruption, suspension, reduction of or disturbance to the gas, electric or telecommunications networks; or electric black-outs and shortages.

14. COMMERCIAL PROMOTION

The LICENSEE authorises ODILE JACOB MULTIMEDIA, after informing the LICENSEE and signature of the Order form, to indicate that the LICENSEE has chosen the Software supplied by ODILE JACOB MULTIMEDIA.

15. NON-TRANSFERABILITY

15.1. The LICENSEE may not transfer the rights and obligations established in the Licensing Contract, partially or wholly, freely or in exchange for payment, without the prior written consent of ODILE JACOB MULTIMEDIA, which reserves the right to refuse said transfer.

15.2. However, the LICENSEE expressly agrees that ODILE JACOB MULTIMEDIA can freely cede all or part of the Licensing Contract and the obligations that are mentioned in it:

(i) in the event of a merger between ODILE JACOB MULTIMEDIA and a third party;
(ii) in the event of a partial business transfer of ODILE JACOB MULTIMEDIA to a third party;
(iii) to any other corporation held by ODILE JACOB MULTIMEDIA at the time of notification of the transfer, in the sense of article L. 233-3 of the Code of Trade.

15.3. The rights and obligations of the Licensing Contract can be opposed and will create rights for the successors and eligible parties of each of the Parties.

16. VARIOUS TERMS

16.1. In the event that any of the clauses of the Licensing Contract are found to be contrary to the law or un-executable in any way, that clause will be found null and void without voiding the entire Licensing Contract.

16.2. The fact that one Party may choose not to avail itself, at any given time, of one of the terms of the Licensing Contract, may not be interpreted as a renunciation of this term, which preserves its force.

16.3. The Licensing Contract constitutes the entire agreement between the Parties relative to its object, and voids and replaces any prior oral or written agreement.

16.4. In the event of contradiction or difficulty of interpretation or execution of the different documents constituting the Licensing Contract, the Order Form prevails over the body of the Licensing Contract.

16.5. Any modification of the terms of the Licensing Contract will become effective only after a rider to the contract has been signed by both Parties.

17. APPLICABLE LAW

THE PRESENT LICENSING CONTRACT IS GOVERNED BY FRENCH LAW.