Updated March, 02 2021

General terms and conditions of use for software solutions in SaaS mode

1. Preamble – Purpose and application of these general terms and conditions – Composition of the contract

1.1 Preamble

Ewattch is a company specialized in creating IoT products and technological solutions for industry and smart-building.

In particular, Ewattch has developed and edited software ("Software Solutions"), such as "EwattchCloud", "EasyVision" or "ProdConnect", which operate in SaaS (Software as a Service) mode, also known as "platform".

These software solutions can be used by the Customer as part of an Ewattch packaged solution in connection with one or more Ewattch IoT sensors, or with third party equipment.

Terms beginning with a capital letter in this article 1 are defined in article 2 hereinafter.

1.2 Purpose and Application Scope of these General Terms and Conditions

Any Order placed by the Customer with Ewattch, in any way whatsoever, including remotely (in particular by e-mail or via the Internet), is governed by these General Terms and Conditions of Use for Software Solutions in SaaS mode (the "General Terms and Conditions") and by the Contract (see definition in article 2 below).

Ewattch and the Customer are hereinafter collectively referred to as the "Parties" and, individually, as a "Party".

These General Terms and Conditions prevail over the Customer's general terms and conditions of purchase or any other similar document issued by the Customer ; the Parties thus expressly exclude the provisions of Article 1119 paragraph 2 of the French Civil Code.

Furthermore, the legal and regulatory provisions of the Consumer Code do not apply to the contractual relationship between Ewattch and the Customer.

1.3 Composition of the Contract

The documents listed below are jointly referred to as the "Contractual Documents", they are complementary and form the contract for the use of the Software Solution in SaaS mode (the "Contract") concluded between Ewattch and the Customer under the conditions set out in article 4 below.

The Contract consists of the Contractual Documents set out below:

the Order Form of Ewattch expressly validated by the Customer (generally the order form generated by the Customer via Ewattch's internet interface and validated by the Customer) and thus formalizing their agreement to the Service and, where applicable, to the Additional Services and the related prices ;
the present General Terms and Conditions.

The above-mentioned Contractual Documents may also, if necessary, be supplemented by one or more other document(s) to which the Parties have decided, by mutual agreement, to confer contractual value.

In the event of any discordance or contradiction between the General Terms and Conditions and the Order Form, the latter shall prevail but shall be interpreted in the light of the clauses of these General Terms and Conditions.

Furthermore, any derogation from the clauses of these General Terms and Conditions must be subject to a special written agreement expressly accepted by both Parties.

1.4 « Information Security Policy ».

In addition, the document entitled "Information Security Policy" drawn up by Ewattch will be made available to Customers in order to inform them of the operation of Ewattch's software solutions, as well as the security measures and processes implemented by Ewattch to secure Customer Data.

2. Definitions

In addition to the terms defined in Article 1 above, for the purposes of the understanding, interpretation and performance of these General Conditions and of the Contract, the essential terms are defined as set out below.

They are set out in alphabetical order for practical reasons. This order of enumeration does not imply any hierarchy between the terms defined below.

“Additional Services” means any services, complementary to the Service, which are ordered by the Customer from Ewattch (such as, in particular: analysis, parameterisation, training, etc.) which are subject to a specific financial reward (the "Financial Reward"), in addition to the Subscription.
“Affiliated Company” means (i) a legal person which controls, directly or indirectly, one of the Parties, or (ii) a legal person which is controlled, directly or indirectly, by one of the Parties, or (iii) a legal person which is controlled, directly or indirectly, by the same legal person as one of the Parties. For the purposes of this definition, "control" means the direct or indirect holding of at least 50% of the share capital or at least 50% of the voting rights of an entity.
“Contract” means the Software Solution Use Contract in SaaS mode concluded between Ewattch and the Customer, which is composed of the Contractual Documents set out in article 1.3 and which is formed as stipulated in article 4 of these General Terms and Conditions.
“Customer” means a natural or legal person, acting for purposes falling within the scope of its professional activity, under private or public law, who has placed an Order with Ewattch and who is therefore the contracting party under the Contract.
“Customer Data” means all information and data of the Customer, including Personal Data, typed, entered or downloaded, automatically or by a Third Party System, for which the Customer is responsible and which he enters, fills in, transmits and processes in the context of his use of the Service.
“Documentation” means the information provided by Ewattch in the form of user documentation that accompanies the Service and/or may take the form of online help.
“Ewattch” means the company named "Ewattch" - simplified joint stock company whose registered office is located at 13, rue Maurice Jeandon in Saint-Dié-Des-Vosges (88100) (FRANCE) and registered with the RCS of Épinal under no. 750 606 246 - or, as the case may be, one of its Affiliated Companies, which may be registered in France or in a different country.
“Identifier” means the specific identifier by which each User will identify himself/herself to access the Service. The identifier will always be accompanied by a password specific to each User or to each Third-Party System.
“In SaaS mode” means "Software as a Service", i.e. the possibility for the Customer to access the Software Solution hosted by Ewattch (or one of its subcontractors see article 14) and to use it, via a web browser and/or via a third party system ("Third Party System"), i.e. in particular: software and/or a Programming Application Interface (PAI).
“Intellectual Property Rights Relating to the Software Solution” means the intellectual property rights relating to the Software Solution and its Documentation, in particular copyright pursuant to Articles L 111-1 et seq. of the French Intellectual Property Code, the sui generis right to databases pursuant to Articles L 341-1 et seq. of the French Intellectual Property Code and trademarks pursuant to Articles L 711-1 et seq. of the same Code.
“Order” means any order for the Service and, where applicable, Additional Services, placed by the Customer with Ewattch, regardless of the title and/or the means by which the said order is placed (usually the Order Form referred to in article 1.3 above or in the quotation from Ewattch).
“Personal Data” means data which, within the meaning of the Personal Data Protection Legislation (GDPR), enable a natural person to be designated or identified, directly or indirectly.
“Security Incident” means any breach of the Customer Data's security and/or integrity, any violation of the Personal Data, as well as, more generally, any unauthorized and/or illegal access, use, disclosure, destruction or loss of the Customer Data.
“Service” means the standard application services for use in SaaS mode of the Software Solution, as well as the Support, which Ewattch provides to the Customer, in counterpart of the payment by the latter of a Subscription, in accordance with the Purchase Order.

The Service does not include the items listed below:
- work and interventions concerning the installation and proper functioning of the Users Workstation and the Customer's infrastructure (telecommunications, networks, security equipment) enabling him to access and use the Service ;
- the problem resolution caused by an error or mishandling by the Users ;
- the Additional Services.
“Software Solution” means the software solution(s) of Ewattch made available to the Customer in SaaS mode as part of the Service, which are mentioned in the Order Form.
“Staff” means the members of each Party's personnel, i. e. employees, trainees, partners and non-employee corporate officers.
“Subscription” means the lump sum mentioned in the Order Form which is paid by the Customer during the term of the Contract (see article 6), and this, in counterpart of the access to the Service in accordance with the Use Parameters.
“Support” means the assistance in the use of the Service provided by Ewattch
“Updates” means the improvements made to the standard application services for the use of the Software Solution accessible to the Customer under the Service and decided unilaterally by Ewattch, with regard to functional evolutions and under the condition that such adaptations or evolutions do not make it necessary to rewrite a substantial part of the existing standard application services. The Updates also include the correction of any anomalies in the Software Solution in relation to the Documentation. Updates are provided as part of the execution of the Support.
“Use Parameters” means the metrics and variables of use of the Service by the Customer and on the basis of which the amount of the Subscription has been set.

These Use Parameters are mentioned in the Order Form. It concerns mainly variables (or bundle of variables) relating in particular to the number of Customer's equipment, which are selected by the Customer when placing the Order.

The Use Parameters can also be :
- the sites of use of the Service by the Customer ;
- the perimeter of use of the Service : the Customer and, possibly, one or more of its Affiliated Companies.
“User” means a natural person who is a member of the Customer's Staff and authorized by the Customer, who may access the Service for professional use.
“User Workstation” means the computer equipment and devices (including Third Party Systems) used by the Customer and Users, enabling them to access the Service. The User Workstation must comply with the Technical Requirements.
“Technical Requirements” means the characteristics of the computer hardware and devices recommended by Ewattch, which must be implemented and complied with by the Customer in order to access and use the Service.

3. Prior declarations of the parties - Precontractual informations

Each of the Parties declares and guarantees that they are not in a state of cessation of payments, nor are they subject to any collective proceedings or conciliation procedures at the time of the conclusion of the Contract. If one of the aforementioned events should occur during the term of their contractual relations, each of the Parties undertakes to inform the other Party as soon as possible by registered letter with acknowledgement of receipt.

Each of the Parties declares that the negotiations prior to the conclusion of the Contract were conducted in good faith in accordance with the public policy provisions of Article 1104 of the French Civil Code.

Prior to the formation of the Contract (see article 4 below) Ewattch has made enquiries about the Customer's needs and, on the basis of the information provided by the Customer in the course of their discussions, has advised the Customer of the Software Solution and the Service and, where applicable, the Additional Services, which the Customer expressly acknowledges.

Ewattch has also explained to the Customer, by all appropriate means, the functionalities and characteristics of the Software Solution, prior to the formation of the Contract, which the Customer expressly acknowledges. In addition, Ewattch has informed the Customer of the Technical Requirements.

The Customer expressly declares that prior to the conclusion of the Contract, he has been able to ask Ewattch any useful questions so that it can make a fully informed commitment. Notwithstanding the above pre-contractual information obligations, it is the Customer's responsibility to ensure that the Service is suitable for his needs and activity.

4. Ordering and formation of the contract

The Contract is formed by the Customer's express acceptance of the Order Form. This explicit acceptance occurs generally (in most situations) when the Customer validates his Order via the Ewattch website and/or via the Ewattch web interface.

By the aforementioned acceptance, the Customer is deemed to have read the terms of these General Terms and Conditions and to have duly accepted them in their entirety and without any reservations.

The Customer acknowledges and accepts that his consent to the conclusion of the Contract may be duly given by electronic means, in particular by means of check boxes and/or validation "clicks". This acceptance shall be deemed to have the same value as a handwritten signature on the part of the Customer, which the Customer expressly acknowledges.

5. Purpose of the contract

Ewattch grants the Customer, on a non-exclusive basis, a right to access and use the Services, in accordance with the Use Parameters, in return for payment of a Subscription, which the Customer expressly accepts.

In addition, Ewattch will, where applicable, perform the Additional Services for the benefit of the Customer in return for the payment of a Financial Reward.

The Contract is also intended to stipulate the respective rights and obligations of the Parties with regard to establish an active and loyal collaboration throughout its entire duration.

6. Entry into force - Duration of the contract

The Contract shall come into force on the date mentioned in the Order Form or, failing this, on the date of formation of the Contract as stipulated in Article 4 above.

Unless expressly stipulated otherwise in the Order Form, the Contract is concluded for an initial term of twelve (12) months (twelve-month Subscription).

It is expressly understood between the Parties that the aforementioned twelve (12) month term is a fixed term within the meaning of Article 1212 of the French Civil Code.

At the end of the term, the Contract will be automatically renewed, without any formality, for the same duration (12 months), unless terminated by one of the Parties by sending the other Party a registered letter with acknowledgement of receipt (LRAR) at least three (3) months before the end of the term.

The aforementioned number of tacit renewals is in no way limited.

7. Terms and conditions of use of the service

7.1 Provision of the right of access to the Service - Identifiers

The Customer will have the right to access the Service on the date mentioned in the Order Form or, failing this, on the date agreed by mutual agreement with Ewattch.

Ewattch will provide the Customer with the Identifiers the Users enabling to access and use the Service.

Access to the Service by Users is carried out, for each User, using his or her Identifiers and in accordance with the Documentation.

Ewattch assigns the Identifiers to each User individually and a temporary password is also communicated by Ewattch. It is the responsibility of each User to change their password.

The Customer must ensure that the confidentiality of the Identifiers and passwords is respected by its Users. The User Identifiers and associated passwords are personal and may not be communicated to third parties.

In the event of loss or misuse of an Identifier and associated password, a procedure for the allocation of a new Identifier and a new password is implemented by Ewattch in accordance with the Documentation.

In such a case, Ewattch retains the right to close and/or suspend the account of the User concerned, without being held liable.

7.2 Use of the Service under the control and liability of the Customer

The Service will be used by the Customer, throughout the duration of the Contract, under his own control, direction and liability.

Consequently, are the liability of the Customer:

the implementation of all useful processes and measures intended to protect its Users Workstations, hardware, software, software packages, Identifiers, passwords, in particular against any virus and intrusions ;
the respect of the latest updated version of the Technical Requirements in order to avoid damaging consequences such as slowdowns, blockages, alterations to the Customer Data within the framework of the Service ;
the choice of the Internet access provider or telecommunications support, the Customer must take care of the administrative requests and take out the necessary subscriptions, the cost of which will be paid by the Customer;
the proper functioning of its email box and those of the Users, on a continuous basis, in order to ensure the proper reception of the messages sent by Ewattch within the framework of the use of the Software Solution ;
the appointment, among its Staff, of a privileged contact person of Ewattch acting as administrator, for the Customer, of the Service and in particular with regard to security aspects ;
the use of the Identifiers and passwords given to it by Ewattch to access and use the Service. The Customer will ensure that no unauthorised person has access to the Service ;
the errors committed by its Staff in the use of the Service and the procedures that enable it to connect to the Service, in particular concerning the means of access and internet navigation ;
the content disseminated and/or downloaded via the Service.

Ewattch will not be held liable for the nature, content and use of the Customer's information or Data. Ewattch will also be released from any liability concerning the quality and electronic transmission of the Customer Data when it uses the telecommunications networks and, more generally, the quality and reliability of the telecommunications links between the User Workstations and the access point to the Service.

7.3 Technical issues relating to the Internet

The Customer is informed that the connection to the Service is made via the Internet network. He is therefore perfectly aware of the technical problems that may affect this network, which may cause slowdown or unavailability leading to an impossibility of accessing the Service and, therefore, of its use by the Customer and the Users. Ewattch cannot be held liable for difficulties in accessing the Service due to disturbances in the Internet network.

8. Availability of the service

Ewattch will do its best efforts to ensure that the Service is continuously accessible to the Customer and efficient, with a minimum of interruption.

The Customer is warned that the Service may nevertheless be temporarily inaccessible during scheduled maintenance and Updates periods and, where applicable, for security reasons.

The Customer will then receive prior notification from Ewattch by any appropriate means.

The level of performance and availability of the Service are set out in the document "Information Security Policy".

9. Customer's obligations relating to the use of the service

9.1 Personal and non-exclusive right of use for the Customer's own needs

It is expressly understood between the Parties that the right of access to the Service granted by Ewattch to the Customer is a personal and non-exclusive right, only for the Customer’s own needs and, in addition, in accordance with the Use Parameters.

The aforementioned personal right of use granted to the Customer is therefore unassignable, untransferable and inalienable, unless Ewattch has given its express prior written consent.

The Customer therefore refrains from granting a right to use the Software Solution to any third party whatsoever, including one of its Affiliated Companies, except with the prior, express and written agreement of EWATTCH.

The Customer furthermore undertakes not to use the Service for commercial purposes, and in particular not to distribute the Service or to market it in any way whatsoever, except with the prior, express and written agreement of Ewattch formalized in a contract.

The Customer undertakes, in application of article 1204 of the French Civil Code, to ensure that the Users and its Staff comply with the terms and obligations stipulated herein.

9.2 Other commitments of the Customer

The Customer undertakes to use the Service only in accordance with its purpose as set out in the Documentation, and only within the framework of its professional activity.

The Customer assumes the full responsibility for the accuracy, reliability and legality of the Customer Data transmitted, in any way whatsoever, in the context of the use of the Service.

10. Financial conditions - Subscription : payment, terms and penalties

10.1 Subscription

The right of access to the Service is invoiced to the Customer in accordance with the amount of the Subscription mentioned in the Order Form, for its entire duration (see Article 6).

The Subscription will be paid by the Customer to Ewattch by credit card in totality at the time of placing the Order, unless different terms of payment are agreed in writing with Ewattch. Ewattch uses a secure payment service platform.

10.2 Financial Reward in the event of Additional Services

When the Customer has placed an Order for Additional Services, the Additional Services will be carried out by Ewattch in return for payment by the latter of a Financial Reward, the amount and terms of payment of which are mentioned in the Order Form or in any other document established by Ewattch and expressly accepted by the Parties.

10.3 Invoicing, payment terms and penalties

With the exception of the Subscription, which is paid in full by the Customer at the time of the Order, all invoices issued by Ewattch must be paid by the Customer no more that thirty (30) days after they are issued.

In the event of failure to pay the amounts due to Ewattch on the due date, Ewattch shall be entitled, without prior notice of default, to charge the Customer default interest on the outstanding amount, corresponding to three (3) times the legal interest rate in force on the due date for payment, from the due date for payment until the date of actual payment. The Customer shall also be liable, by operation of law, for the fixed indemnity of forty (40) euros for collection costs in accordance with article L 441-10 of the French Commercial Code.

Furthermore, in the event of late or non-payment, Ewattch will be entitled to suspend, without prior notice of default, the Customer's right of access to the Service, and/or to terminate the Agreement in application of the resolutory clause in article 22), without engaging its liability.

11. General obligations of Ewattch

Ewattch undertakes to provide the Service to the Customer in accordance with the Documentation and the Use Parameters, as well as, more generally, in accordance with the provisions of the Contract and the rules of art.

Ewattch also undertakes to inform the Customer as soon as possible of any element or circumstance that comes to its knowledge that could affect the use of the Service by the Customer.

Ewattch further undertakes to provide the Service in accordance with the level of service (availability), the Documentation and the security measures set out in the Contract and in the Information Security Policy document, and, more generally, with diligence.

Ewattch undertakes to assign staff with the appropriate skills to the provision of the Service and, where applicable, to the performance of the Additional Services.

12. Data - Use and security of data

12.1 Security of Customer Data

Ewattch is particularly committed to the protection of Customer Data.

To this purpose, Ewattch implements technical and organizational measures to adequately secure Customer Data.

Ewattch undertakes to take all useful precautions in accordance with the good practices in use to preserve the security of the Customer Data so that they are not distorted, damaged or communicated to any unauthorized third party as a result of Ewattch's actions.

12.2 Personal Data

In the context of the provision of the Service, Ewattch is required to process, although on a limited basis, Personal Data relating to the Customer and the Users.

Ewattch, acting as a sub-contractor within the meaning of the Legislation relating to Personal Data (for Customer Data), undertakes to process Personal Data in accordance with the aforementioned Legislation and, in particular, in accordance with the principles of finality and pertinence.

The Personal Data collected by Ewattch in the context of its collaboration with the Customer and the Users for the purposes of accessing the Service are :

email address;
name;
first name;
landline and mobile telephone numbers (if the User has opted for the alert service).

Ewattch does not collect any sensitive data as defined by the legislation relating to Personal Data.

The Personal Data processing carried out by Ewattch relates to the purposes set out below :

To record the Order for Service (and, where applicable, the Additional Services) placed by the Customer ;
To open a user account for the Users in order to allow them to access and use the Service ;
To interact with the Customer's Staff and Users in the context of the use of the Service (in particular Support), and in the framework of the Services, in particular by email ;
To establish and send invoices to the Customers ;
To manage and follow up its commercial relations with the Customers.

Ewattch undertakes to process Personal Data only for the purposes stated above.

Ewattch undertakes, more generally, to comply with all obligations arising from the legislation relating to Personal Data.

Ewattch also undertakes - both on its own behalf and on the behalf of its Staff, for whom it is responsible in accordance with article 1204 of the French Civil Code - to effectively respect the confidentiality of the Personal Data and not to disclose them to unauthorized third parties.

In the event of a Security Incident (violation of Personal Data), Ewattch undertakes to notify the CNIL of the said incident within 72 hours of its discovery and, if necessary, to notify the persons concerned as soon as possible.

13. Ewattch service improvement program and use of specific customer data

With a view of increasing its knowledge of the functioning as well as the needs of industry stakeholders and in order to offer them even more adapted and efficient solutions, Ewattch is implementing a programme to improve its services (the "Programme").

Within the framework and for the purposes of implementing this Programme, Ewattch collects some of the Customer Data such as the type of industry and the consumption of the Customer's equipment, in order to enrich an industrial database.

The Customer Data collected by Ewattch in the context of the Programme are anonymized data ; they do not include any location data or Personal Data.

By validating his Order, the Customer expressly consents to the collection and use of the aforementioned Data by Ewattch within the framework of the Programme. The aforementioned consent is deemed to have been given by the Client at the time of the formation of the Contract (see article 4).

If the Customer does not wish Ewattch to collect and use the aforementioned Data within the framework of the Programme, it must notify Ewattch in writing at the same time as it provides the right of access to the Service.

14. Subcontracting

For the purpose of providing the Service and, where applicable, carrying out the Additional Services, Ewattch may partially subcontract to one or more subcontracting partners of its choice (the "Subcontractors") who have the appropriate technical and organizational skills.

This will notably be the case of the service provider hosting the Customer Data. Ewattch indeed collaborates with a renowned hosting provider (OVH) in Europe which is a specialist in hosting solutions (see in particular the Information Security Policy).

15. Reciprocal obligations of the parties

15.1 Active and good faith collaboration

Each of the Parties undertakes to perform the Contract in good faith.

The Parties thus undertake to provide each other, as soon as possible, with any information that comes to their knowledge that may have an impact on the good performance of the Service and, more generally, on the performance of the Contract (see composition of the Contract).

The Customer undertakes, in particular, to provide or guarantee effectively Ewattch access to any information or elements that the latter may reasonably require in order to perform its obligations under the Contract.

15.2 Confidentiality

As the confidentiality undertakings stipulated in this Article 15.2. are reciprocal, each of the Parties is both "Receiving Party" and "Disclosing Party".

Determination of Confidential Information :

The Receiving Party undertakes to respect the confidentiality of information (the "Confidential Information") of any nature including, without limitation, information of a technical, IT, scientific, financial and commercial nature from the Disclosing Party and which is disclosed to the Receiving Party, and/or to which the Receiving Party will have access - in any form whatsoever and, in particular, in writing, orally, visually, via a physical support or by electronic means - within the framework of the collaboration governed by this Contract.

Given that Customer Data is Confidential Information.

However, will not be considered as Confidential Information the information for which the Receiving Party can prove :

that they were in the public domain at the time of their communication, or ;
that they subsequently fell into the public domain without breaching any contractual obligations.

Confidentiality undertakings :

Non-disclosure : The Receiving Party undertakes on its own behalf - on the behalf of its Staff, for whom it is responsible in application of Article 1204 of the French Civil Code - not to disclose any Confidential Information, to any person whatsoever and in any form whatsoever, except with the prior, express and written agreement of the Disclosing Party.

Restriction of use of the Confidential Information : The Receiving Party furthermore undertakes - both on its own behalf and on the behalf of its Staff and its Affiliates, for whom it is responsible in application of Article 1204 of the French Civil Code - to use the Confidential Information exclusively within the framework of the Contract and for the implementation of its collaboration with the Disclosing Party, and thus refrains from using them, directly or indirectly, for a different purpose.

Duration of the commitments : The confidentiality obligations stipulated in the present Article 15.2 are applicable for the entire duration of the Contract and will continue to be fully in force after its termination, for whatever reason, for a period of five (5) years.

16. Evolution of service and/or software solution

Ewattch may, at any time, modify the Software Solution and/or the Service, or change the manner in which the Service is provided, if this does not objectively cause the Customer any inconvenience or if such modification improves the Service.

The Customer is furthermore informed that legislative and regulatory changes may, at any time, impact the Software Solution for which a right of use is granted under the Service. In the framework of the Support, Ewattch will update the Software Solution so that it complies with the new legal and/or regulatory provisions, provided that such adaptations or changes do not make it necessary to rewrite a substantial part of the said Software Solution.

The Customer is also informed that changes in technology and customer demand may lead Ewattch to carry out Updates, which may result in changes to the Technical Requirements for which Ewattch cannot be held liable.

17. Intellectual property

17.1 Intellectual Property Rights Affecting the Software Solution

It is expressly understood between the Parties that the right to use the Software Solution granted by Ewattch to the Customer within the framework of the Service does not entail, directly or indirectly, any assignment or transfer of any kind, of Intellectual Property Rights relating to the Software Solution and the Documentation.

The Intellectual Property Rights relating to the Software Solution are and shall remain, in any event, the exclusive property of Ewattch.

17.2 Commitments of the Customer

The Customer undertakes, both on its own behalf and on the behalf of its Staff and its Affiliated Companies, for whom it is responsible in application of article 1204 of the French Civil Code, never to infringe the Intellectual Property Rights relating to the Software Solution and undertakes to refrain from reproducing any element of the code of the Software Solution, by any means whatsoever, in any form whatsoever and on any support whatsoever.

Furthermore, the Customer undertakes, both on its own behalf and on the behalf of its Staff and its Affiliated Companies, for whom it is responsible in application of article 1204 of the French Civil Code:

never to modify, adapt, translate, reproduce, disassemble or decompile the Software Solution, nor to carry out any reverse engineering operation, nor to attempt to reconstitute the source code of the Software Solution ;
not to create any derivative product of the Software Solution.

The termination of the Contract, for any reason whatsoever, including in the event of termination or cancellation, shall in no way affect the provisions of this Article 17, which shall remain in full force and effect.

18. Non-solicitation of staff

The Customer expressly refrains from hiring, directly or indirectly, any member of Ewattch's Staff, even if the initial solicitation comes from the member of its Staff himself.

This prohibition applies for the entire duration of the contractual relationship and for a period of twenty-four (24) months after the termination of the Contract, regardless of its cause.

In the event of non-compliance, the Customer will be liable to Ewattch for a lump sum compensation in an amount equal to the gross salaries actually received during the twenty-four (24) months prior to the departure of the said member of Staff from Ewattch.

19. Compliance with regulations - Relations with the administration

Each Party undertakes to comply with the regulations relating to its activity and to carry out all its fiscal, legal and administrative obligations in such a way that the other Party will never be worried about it.

It is also expressly agreed between the Parties that each Party shall employ, manage and remunerate its Staff under its exclusive responsibility in accordance with the regulations in force, in such a way that the other Party will never be worried about it.

20. Guarantees

Ewattch guarantees the conformity of the Software Solution with the Documentation.

Ewattch does not guarantee that the Service are exempt from all defects or hazards, but expressly undertakes to remedy, with all reasonable diligence, any reproducible malfunctions of the Service observed in relation to its Documentation.

Furthermore, Ewattch guarantees the Customer that it has all the intellectual property rights enabling it to conclude the Contract and that, consequently, the Service provided to the Customer do not infringe the rights of any third party and do not constitute an infringement of any pre-existing work.

The Software Solution is a tool made available to the Customer. Ewattch does not guarantee the conformity of the Software Solution to the specific needs or the specific activity of a Customer or User. Ewattch does not guarantee the ability of the Service to achieve the objectives, results or performance that the Customer may have set itself.

To the extent permitted by applicable legal provisions, any other guarantee than those stated in this article 20 is expressly excluded.

21. Reversibility

Upon termination of the Contract, Ewattch undertakes to return to the Customer, within thirty (30) days of the Customer's written request, all Customer Data belonging to it, which has been stored and/or used in connection with the use of the Service, by exporting it to a universal format.

Ewattch undertakes to ensure that the Customer Data are legible.

22. Termination clause - Penalty clause

22.1 Termination clause

Each of the Parties is entitled to terminate the Contract in advance in the event of a serious breach by the other Party of any of its obligations stipulated in the Contract and, in particular, any of the obligations set out below:

in the event of non-payment of the Subscription and/or Financial Reward by the Customer on the due date (see Article 10) ;
in the event of non-compliance by the Customer and/or Users with the obligations relating to the use of the Service (see in particular articles 7.2 and 9) ;
in the event of non-compliance by the Customer with its obligations regarding the Intellectual Property Rights relating to the Ewattch Software Solution (see in particular article 17).

The termination of the Contract shall be effective, if the creditor Party so wishes, at the end of a period of thirty (30) days after the latter has sent the defaulting Party, by registered letter with acknowledgement of receipt (LRAR), a formal notice including the grounds for its claim ; unless the defaulting Party has in the meantime remedied this failure or has only provided proof that the non-performance of its contractual obligations results from a case of force majeure or an external and irresistible event as stipulated in Article 23.3.

22.2 Penalty clause

In the event of termination of the Contract for a breach attributable to the Customer or to a User, all sums paid by the Customer to Ewattch will remain the property of Ewattch. In addition, as a penalty clause, the Customer shall automatically owe Ewattch compensation equal to twelve (12) months of Subscription (to the amount of the Annual Subscription).

This compensation will be due to Ewattch as soon as the Contract is terminated.

It is expressly understood between the Parties that the above indemnity is only intended to compensate Ewattch for the loss suffered by Ewattch as a result of the early termination of the Contract. Ewattch may also claim damages in compensation for the loss suffered distinct from the early termination of the Contract.

23. Liability

23.1 Liability of the Parties

Each of the Parties is bound to respect its obligations stipulated in the Contract.

The liability of each of the Parties is limited to direct damages in accordance with the contractual liability under ordinary law (in particular articles 1231-3 and 1231-4 of the French Civil code).

23.2 Liability of Ewattch

Ewattch, which undertakes to make its best efforts to perform its obligations in accordance with the terms of the Contract, is subject to an obligation of means. It can only be held liable in case of fault for which the burden of proof belongs to the Customer.

Under no circumstances can Ewattch be held liable for any indirect damage suffered by the Customer which may arise in the context of the performance of the Contract or as a result of the use of the Service. Indirect damage is understood to mean in particular the loss of production, loss of productivity, loss of earnings or profits, loss of chance, the cost of acquiring or licensing a technological solution and/or replacement equipment, damage to the brand image as well as the consequences of complaints or claims by third parties against the Customer.

In addition, Ewattch will be exonerated, at least partially, from any liability in the event of failure attributable to the Customer, in particular in the event of non-compliance by the Customer with its obligations and/or elements for which it is responsible as stipulated in the Contract, in particular in the event of non-payment of the Subscription and/or the Financial Reward.

In any event, if Ewattch's liability turns out to be effectively engaged, for whatever reason and whatever the legal basis invoked or retained, the amount of damages awarded to the Customer and/or Users - all damages taken together and cumulated - will be expressly limited to twelve (12) months of Subscription (Annual Subscription) and to the Financial Reward.

In addition, in case of prejudice suffered by the Customer, the Customer shall make its best efforts, within the limits of reasonableness, to limit its potential or existing damages.

23.3 Force majeure

Ewattch will be exempted from all liability if the partial or total non-performance of one or more of its obligations - or the delay in their performance - results from the occurrence of a case of force majeure within the meaning of article 1218 of the French Civil Code (and its jurisprudential applications) or the occurrence of an external and irresistible, but not unpredictable event.

23.4 Survival of liability clauses

It is expressly understood between the Parties that the termination of the Contract, for any reason whatsoever (including in the event of termination or cancellation), shall not affect in any way the clauses of this Article 23, which shall remain in full force and effect.

24. Assignment

It is expressly agreed between the Parties that Ewattch may freely assign the Contract to one of its Affiliated Companies. In such a case, the Customer will be informed by written notification.

25. Applicable law and dispute resolution

The Contract concluded between the Parties is exclusively governed by French law, regardless of the nationality of the Customer.

Any liability action against Ewattch must be brought within a maximum period of one (1) year from the date of occurrence of the event on which the Customer and/or the Users bases its action.

In the event of a dispute arising from the Contract, the Parties will, as far as possible, prefer to settle it amicably. The Parties irrevocably attribute exclusive jurisdiction to the Commercial Court of Épinal (FRANCE) to settle any dispute relating to the validity, interpretation, performance and/or termination of the Contract, including to rule in emergency or protective proceedings, notwithstanding any accessory claim or appeal in guarantee or in the event of plurality of defendants.

26. Final stipulations

26.1 Entirety of the Contract

The Contract constitutes the entire agreement between the Parties, which has the force of law between them in application of the provisions of Article 1103 of the French Civil Code.

26.2 Severability

If any provision of these General Terms and Conditions is found to be invalid, deemed unwritten or illegal, the validity of the remaining provisions shall not be affected. In such a case, the remaining provisions will thus retain their full effect and legal value between the Parties. The said invalid, deemed unwritten or illegal stipulation must necessarily be replaced by a stipulation in accordance with the mutual intention of the Parties as initially formalized herein.

26.3 Tolerance - No Waiver

Ewattch's temporary failure to avail itself of any of the clauses of these General Terms and Conditions shall not be interpreted as a waiver of its right to do so subsequently.

26.4 Interpretation

The use of the term " in particular " or " including " means that the following enumeration is not exhaustive and is therefore not limitative.