Naltilia Terms of Service - Subscription Agreement

This Naltilia Subscription Agreement ("Agreement") is effective as of the effective date of an applicable signed order form ( "Order Form" and such date the "Effective Date") and is by and between Naltilia S.A.S. with a place of business at 3 avenue Fénelon, Maisons Laffitte, France ("Naltilia"), and the customer set forth on the Order Form ("Customer") (each a "Party" and together the "Parties"). In the event of any inconsistency or conflict between the terms of the Agreement and the terms of any Order Form, the terms of the Order Form prevail.

Section 1. Services

The "Services" mean the products and services that are ordered by Customer from Naltilia in an Order Form referencing this Agreement. Subject to the terms and conditions of this Agreement, Naltilia will make the Services available to Customer during the Term.

Section 2. Fees and Payment

2.1. Fees. Customer will pay the fees specified in the Order Form (the "Fees").

2.2. Payment; Taxes. Naltilia shall invoice Customer for Fees within thirty (30) days of the Effective Date, the start of the Renewal Term (as defined below), or otherwise as specified in the Order Form. Customer shall pay all invoiced Fees upon receipt of such invoice. In the event of non-payment of Fees by Customer for thirty (30) days after the due date of an invoice, Customer's access to the Services may be immediately suspended and Customer must pay the entire remaining balance of Fees to regain access to the Services. Fees do not include taxes or duties of any kind and any such taxes will be assumed and paid by Customer.

2.3. Price Changes. Naltilia may change prices for the Services from time to time, in its sole discretion. Any price changes will be effective upon the commencement of Customer's next Renewal Term; provided, that Naltilia shall provide Customer with reasonable notice of any such fee increase prior to the expiration of the Term or any Renewal Term.

2.4. Discounts and Promotional Pricing. Prices specified in the Order Form may include discounts or promotional pricing. These discounts or promotional pricing amounts may be temporary and may expire upon the commencement of a Renewal Term, without additional notice. Naltilia reserves the right to discontinue or modify any promotion, sale or special offer at its sole and reasonable discretion.

2.5 Free Trial Services. If Customer is granted access to Trial Services, Naltilia will make the applicable Trial Services available to Customer pursuant to this Agreement starting from the time that Customer registers and is approved for such Trial Services until the earlier of: (a) the end of the Trial Services period communicated to Customer; (b) the start date of any Order Form executed by Customer for Service(s) in exchange for payment; or (c) termination by Naltilia in its sole discretion.

Section 3. Term and Termination

3.1. Term and Renewal. This Aggrement commences on the Effective Date and will remain in effect through the term specified in the Order Form, and will renew as specified in the Order Form unless otherwise terminated in accordance with this Section (collectively the "Term"). If the Order Form does not specify, the Term will be one year and will automatically renew for successive one-year periods unless Customer provides Naltilia with notice of termination at least thirty (30) days prior to the end of the Term (a "Renewal Term").

3.2. Termination for Cause. A Party may terminate this Agreement for cause (a) upon notice to the other Party of a material breach if such breach remains unresolved after ten (10) days from the date of the breaching Party's receipt of such notice; (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (c) immediately by Naltilia if Customer makes one of the Prohibited Uses below. Non-payment of Fees by Customer for sixty (60) days after issuance of an invoice, and any violation of the Prohibited Uses clause below will be considered material breaches of this Agreement.

3.3. Effect of Termination and Survival. Upon termination of an Order Form or this Agreement (a) with respect to termination of the entire Agreement, all Order Forms will concurrently terminate, (b) Customer will have no further right to use the Services under the terminated or cancelled Order Forms and Naltilia will remove Customer's access to same, and (c) unless otherwise specified in writing, Customer will not be entitled to any refund of fees paid. The following Sections will survive termination: Section 2 (Fees and Payment), Section 4 (Ownership), Section 5 (Confidentiality), Section 7.3 (Disclaimers), Section 8 (Indemnification), Section 9 (Limitation of Liability), and Section 10 (Miscellaneous). Termination of this Agreement will not limit a Party's liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.

Section 4. Ownership, License, and Use of the Services

4.1. Ownership. Each Party will retain all rights, title and interest in any of its patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights ("Intellectual Property Rights"). Naltilia will retain Intellectual Property Rights in the Services and all components of, or used to, provide the Services or created by the Services or by Naltilia in the course of providing the Services (the "Services Information"). Customer will retain Intellectual Property Rights in all information it provides to Naltilia as part of this Agreement (other than Feedback as described below), including but not limited to in the course of its use of the Services (the "Customer Information").

4.2. Feedback. Customer may, under this Agreement, provide suggestions, enhancement requests, recommendations about the Services, or other feedback to Naltilia (the "Feedback"). Customer provides Naltilia a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services, or otherwise use any Feedback. Naltilia also reserves the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by such Feedback.

4.3. Licenses. Naltilia hereby grants Customer a non-exclusive, non-transferable, non-sublicensable right to and license to access and use the Services as set forth in the Order Form subject to the terms and conditions of this Agreement and the Order Form (if applicable). Customer hereby grants Naltilia a non-exclusive, non-transferable, non-sublicensable right and license to use the Customer Information solely to provide the Services to Customer.

4.4. Authorized Users. Customer may designate and provide access to the Services to employees, agents, or authorized contractors (each an "Authorized User"). Customer is responsible for all use and misuse of the Services by Authorized Users and for adherence to all terms of this Agreement by any Authorized Users, and references to Customer herein will be deemed to apply to Authorized Users as necessary and applicable. Customer agrees to promptly notify Naltilia of any unauthorized access or use of which Customer becomes aware. Authorized Users are strictly prohibited from sharing their accounts or account passwords and their doing so is a material breach of this Agreement by Customer.

4.5. Prohibited Uses. Customer and Authorized Users will not: (a) "frame," distribute, resell, or permit access to the Services by any third party other than as allowed by the features and functionality of the Services; (b) use the Services in violation of applicable laws; (c) interfere with, disrupt, or gain unauthorized access to the Services; (d) successfully or otherwise, attempt to: decompile, disassemble, reverse engineer, discover the underlying source code or structure of, or copy the Services; (e) provide Naltilia any Customer Information or Feedback that is unlawful, defamatory, harassing, discriminatory, or infringing of third party intellectual property rights; (f) transfer to the Services or otherwise use on the Services any code, exploit, or undisclosed feature that is designed to delete, disable, deactivate, interfere with or otherwise harm or provide unauthorized access to the Services; (g) use any robot, spider, data scraping, or extraction tool or similar mechanism with respect to the Services; (h) provide access to the Services to an individual associated with a Naltilia Competitor (defined below); (i) extract information from the Services in furtherance of competing with Naltilia; (j) encumber, sublicense, transfer, rent, lease, time-share or use the Services in any service bureau arrangement or otherwise for the benefit of any third party; (k) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Services; (l) introduce into the Services any software containing a virus, worm, "back door," Trojan horse or similarly harmful code; or (m) permit any third party to engage in any of the foregoing proscribed acts. A "Naltilia Competitor" is any entity that provides the same or similar goods and services to those provided by Naltilia, as would be determined by a commercially reasonable individual. Customer will promptly notify Naltilia of any violations of the above prohibited uses by an Authorized User or a third party and require such Authorized User or third party to immediately cease any such use. Naltilia reserves the right to suspend Customer and/or Authorized User's access to the Services in the event Naltilia suspects Customer or an Authorized User is in breach of this Agreement.

Section 5. Confidentiality

If the parties have a separate mutual nondisclosure Agreement, that Agreement will control (the "Separate MNDA"). Otherwise, as used herein, the "Confidential Information" of a Party (the "Disclosing Party") means all financial, technical, or business information of the Disclosing Party that the Disclosing Party designates as confidential at the time of disclosure to the other Party (the "Receiving Party") or that the Receiving Party reasonably should understand to be confidential based on the nature of the information or the circumstances surrounding its disclosure. Services Information and Customer Information are Confidential Information under this Agreement, or confidential under the Separate MNDA, as applicable. Except as expressly permitted in this Agreement, the Receiving Party will not disclose, duplicate, publish, transfer or otherwise make available Confidential Information of the Disclosing Party in any form to any person or entity without the Disclosing Party's prior written consent. The Receiving Party will not use the Disclosing Party's Confidential Information except to perform its obligations under this Agreement, such obligations including, in the case of Naltilia, to provide the Services. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent required by law, provided that the Receiving Party: (a) gives the Disclosing Party prior written notice of such disclosure so as to afford the Disclosing Party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure (if such notice is not prohibited by applicable law); (b) uses diligent efforts to limit disclosure and to obtain confidential treatment or a protective order; and (c) allows the Disclosing Party to participate in the proceeding. Further, Confidential Information does not include any information that: (i) is or becomes generally known to the public without the Receiving Party's breach of any obligation owed to the Disclosing Party; (ii) was independently developed by the Receiving Party without the Receiving Party's breach of any obligation owed to the Disclosing Party; or (iii) is received from a third party who obtained such Confidential Information without any third party's breach of any obligation owed to the Disclosing Party.

Section 6. Privacy and Security Practices

Naltilia operates the Services and handles Customer information, pursuant to the privacy policy available at www.naltilia.com/company/privacy-policy (the "Privacy Policy"). Naltilia's current security and data protection practices are set forth at https://www.naltilia.com/company/security (the "Security Statement").

Section 7. Representations, Warranties, and Disclaimers

7.1. Authority. Each Party represents that it has validly entered into this Agreement and has the legal power to do so.

7.2. Warranties. Naltilia warrants that during an applicable Term (a) the Security Statement accurately describes the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Information; and (b) the Services will perform materially in accordance with any applicable documentation provided to Customer. For any breach of a warranty in this section, Customer's exclusive remedies are those described in Section 3 (Term and Termination) herein.

7.3. Disclaimers. Except as specifically set forth in this section, the services, including all server and network components, are provided on an "as is" and "as available" basis, without any warranties of any kind to the fullest extent permitted by law, and naltilia expressly disclaims any and all warranties, whether express or implied, including, but not limited to, any implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. customer acknowledges that naltilia does not warrant that the services will be uninterrupted, timely, secure, error-free, or free from viruses or other malicious software, and no information or advice obtained by customer from naltilia or through the services shall create any warranty not expressly stated in this Agreement. the parties additionally agree that naltilia will have no liability or responsibility for client's various compliance programs, and that the services, to the extent applicable, are only tools for assisting client in meeting the various compliance obligations for which it solely is responsible.

Section 8. Indemnification

8.1. Indemnification by Naltilia. Naltilia will indemnify and hold Customer harmless from any third party claim against Customer arising out of Customer's use or purchase of the Services as permitted hereunder alleging that such Services infringe or misappropriate a third party's valid patent, copyright, trademark, or trade secret. Naltilia will, at its expense, defend such claim and pay damages finally awarded against Customer in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Naltilia for such defense, provided that (a) Customer promptly notifies Naltilia of the threat or notice of such claim; (b) Naltilia will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, Naltilia will not settle or compromise any claim that results in liability or admission of any liability by Customer without prior written consent); and (c) Customer fully cooperates with Naltilia in connection therewith. If use of a Service by Customer has become, or, in Naltilia's opinion, is likely to become, the subject of any such claim, Naltilia may, at its option and expense, (i) procure for Customer the right to continue using the Service(s) as set forth hereunder; (ii) replace or modify a Service to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by Naltilia, terminate this Agreement and repay, on a pro-rata basis, any Fees previously paid to Naltilia for the corresponding unused portion of the Term for related Services. Naltilia will have no liability or obligation under this Section with respect to any claim if such claim is caused in whole or in part by (x) compliance with designs, data, instructions or specifications provided by Customer; (y) modification of the Services by anyone other than Naltilia; or (z) the combination, operation or use of the Services with other hardware or software where the Services would not otherwise be infringing. The provisions of this Section state the sole, exclusive, and entire liability of Naltilia to Customer and constitute Customer's sole remedy with respect to an infringement claim brought by reason of access to or use of a Service by Customer or Authorized Users.

8.2. Indemnification by Customer. Customer will indemnify and hold Naltilia harmless against any third party claim arising out of (a) Prohibited Uses in breach of this Agreement as set forth above; or (b) alleging that Customer Information infringes or misappropriates a third party's valid patent, copyright, trademark, or trade secret; provided (i) Naltilia promptly notifies Customer of the threat or notice of such claim; (ii) Customer will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, Customer will not settle or compromise any claim that results in liability or admission of any liability by Naltilia without prior written consent); and (iii) Naltilia fully cooperates in connection therewith.

Section 9. Limitation of Liability

To the maximum extent permitted by applicable law, under no circumstances and under no legal theory (whether in contract, tort, negligence or otherwise) will either party to this Agreement, or their affiliates, officers, directors, employees, agents, service providers, suppliers or licensors be liable to the other party or any affiliate for any lost profits, lost sales or business, lost data (being data lost in the course of transmission via customer's systems or over the internet through no fault of naltilia), business interruption, loss of goodwill, costs of cover or replacement, or for any type of indirect, incidental, special, exemplary, consequential or punitive loss or damages, or any other indirect loss or damages incurred by the other party or any affiliate in connection with this Agreement or the services regardless of whether such party has been advised of the possibility of or could have foreseen such damages. Notwithstanding anything to the contrary in this Agreement, either party's aggregate liability to the other party or any third party arising out of this Agreement or the services will in no event exceed the fees paid by customer during the twelve (12) months prior to the first event or occurrence giving rise to such liability; provided that liability under the parties' indemnification obligations, for breaches of confidentiality, or for damages due to prohibited uses will not in the aggregate exceed ten times that amount. for clarity, nothing in this Agreement will limit or exclude either party's liability for gross negligence or intentional misconduct of a party. customer acknowledges and agrees that the essential purpose of this section is to allocate the risks under this Agreement between the parties and limit potential liability given the fees, which would have been substantially higher if naltilia were to assume any further liability other than as set forth herein. naltilia has relied on these limitations in determining whether to provide customer with the rights to access and use the services provided for in this Agreement. the disclaimers, exclusions, and limitations of liability under this Agreement will not apply to the extent prohibited by applicable law.

Section 10. Miscellaneous

10.1. Entire Agreement. This Agreement, any active Order Forms, and the Separate MNDA, if applicable, constitute the entire Agreement, and supersedes all prior Agreements, between Naltilia and Customer regarding the subject matter hereof.

10.2. Assignment. Either Party may, without the consent of the other Party, assign this Agreement to any affiliate or in connection with any merger, change of control, or the sale of all or substantially all of such Party's assets provided that (1) the other Party is provided prior notice of such assignment and (2) any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.

10.3. Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.

10.4. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.

10.5. Notices. All notices provided by Naltilia to Customer under this Agreement may be delivered in writing by electronic mail to the electronic mail address provided for Customer's account owner. Customer must give notice to Naltilia in writing by email to [email protected]. All notices shall be deemed to have been given immediately upon delivery by electronic mail.

10.6. Governing Law, Jurisdiction, Venue. This Agreement will be governed by the French law. Any disputes under this Agreement shall be resolved in the competentent French courts. Customer hereby expressly agrees to submit to the exclusive personal jurisdiction and venue of such courts for the purpose of resolving any dispute relating to this Agreement or access to or use of the Services by Customer, its agents, or Authorized Users.

10.8. Anti-Corruption. Customer represents and agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Naltilia's employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly give notice to Naltilia.

10.9. Publicity and Marketing. Naltilia may use Customer's name, logo, and trademarks solely to identify Customer as a client of Naltilia on Naltilia's website and other marketing materials and in accordance with Customer's trademark usage guidelines. Naltilia may share aggregated and/or anonymized information regarding use of the Services with third parties for marketing purposes to develop and promote Services. Naltilia will never disclose aggregated and/or anonymized information to a third party in a manner that would identify Customer or any identifiable individual as the source of the information.

10.10. Amendments. Naltilia may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. Naltilia will notify Customer not less than ten (10) days prior to the effective date of any such amendment and Customer's continued use of the Services following the effective date of any such amendment may be relied upon by Naltilia as consent to any such amendment.

10.11. Waiver. Naltilia's failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.