Local Country Addendum: France
Checkmarx Master Software License and Services Agreement
Local Country Addendum: France
For Customers incorporated in France, the following provisions shall apply. All other provisions of the Agreement shall remain the same except as provided herein. To the extent of any inconsistency or contradiction between this Addendum and the body of the Agreement, the terms of this Addendum shall prevail.
- Section 5.1(c) of the Agreement is hereby replaced with the following:
“(c) reverse engineer, decompile, disassemble, modify or create derivative works of the Software, Services or Documentation except to the extent legally allowed;”
- Section 9 of the Agreement is hereby replaced with the following:
“9.1 Proprietary Rights. The Software, Services and Documentation are licensed, not sold, and Checkmarx, its Affiliates and licensors retain all right, title, and interest in and to the Software, Services and Documentation, and all copies, improvements, enhancements, modifications, and derivative works of the Software, Services and Documentation, including, without limitation, all patent, copyright, author’s rights (“droits d’auteur”), trade secret, trademarks, and other intellectual property rights. All express or implied rights to the Software, Services and Documentation not specifically granted herein are expressly reserved to Checkmarx, its Affiliates and licensors.
9.2. Proprietary Notices. Customer acknowledges that Checkmarx, its Affiliates and licensors own the copyright, author’s rights (“droits d’auteur”), and other intellectual property rights in the Software, Services and Documentation. Customer will not remove the copyright, author’s rights (“droits d’auteur”), trademark and other proprietary notices contained on or in the Software, Services Documentation and any materials provided by Checkmarx under this Agreement.
9.3. Feedback. In the event Customer provides Checkmarx with feedback regarding possible improvements in the operation, functionality or use of Checkmarx’s offerings, including the Software and Services (“Feedback”), Customer hereby grants Checkmarx and its Affiliates, for the duration of protection of intellectual property rights and for any purposes intended by Checkmarx, an irrevocable, worldwide, sub-licensable, royalty-free license to use, modify, create derivative works, distribute, and otherwise exploit the Feedback without further compensation to Customer.”
- Section 10.2.1 of the Agreement is hereby replaced with the following:
“10.2.1. Checkmarx shall deliver an invoice stating the Fees and, where applicable, sales, use, value-added or other taxes. Except as otherwise provided in this Agreement, all amounts are non-refundable and are payable in the currency specified in the Quote. All Fees are billed upfront and in advance unless otherwise specified in the Quote or Scope of Work. All invoices are due thirty (30) days from the invoice date, unless an earlier payment term is set out in the Quote. Checkmarx may charge interest on any overdue Fees that are not subject to good faith dispute at a rate of 1.5% per month, or three (3) times the legal interest rate, whichever is higher. Customer will pay all costs and expenses incurred by Checkmarx in connection with a fixed indemnity of forty (40) Euro for the collection by Checkmarx of overdue, unpaid amounts owed to Checkmarx by Customer under the terms of this Agreement.”
- For the purpose of sections 12.2, 14.2 and 14.3, termination shall be understood as termination as of right (“de plein droit”), without judicial formalities.
- Section 11.4 of the Agreement is hereby replaced with the following:
“11.4. Disclaimer of Warranties. WITH THE SOLE EXCEPTION OF THE LIMITED WARRANTY PROVIDED IN SECTION 11.1, ALL SOFTWARE, SERVICES AND DOCUMENTATION ARE PROVIDED ON AN “AS IS” BASIS AND CHECKMARX DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, STATUTORY OR OTHERWISE. CHECKMARX EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. CHECKMARX DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE, SERVICES OR DOCUMENTATION WILL MEET THE REQUIREMENTS OF CUSTOMER, THAT THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED AND/OR ERROR FREE, OR THAT THE SOFTWARE WILL DETECT OR RENDER CUSTOMER’S CODE FREE FROM ALL ERRORS, VULNERABILITIES, OR INTRUSIONS.”
- Section 13 is hereby replaced with the following:
“13. Limitation of Liability. EXCEPT FOR LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW, CHECKMARX AND ITS AFFILIATES SHALL NOT BE LIABLE OR OBLIGATED IN ANY MANNER FOR ANY LOST PROFITS, LOST REVENUE, LOSS OF USE, LOSS OR DAMAGE TO DATA, REMEDIATION COSTS, LOSS OF GOODWILL, OR ANY INDIRECT DAMAGES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, NEGLIGENCE, STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. EXCEPT FOR LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW, THE MAXIMUM AGGREGATE LIABILITY OF CHECKMARX AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID TO CHECKMARX UNDER THIS AGREEMENT DURING THE PREVIOUS TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.”
- Section 14.2 is hereby replaced with the following:
“14.2. Termination. Either Party may terminate this Agreement: (a) upon written notice in the event of a material breach of this Agreement by the other Party which has not been cured after the expiration of thirty (30) days from the breaching Party’s receipt of written notice of the breach; (b) to the extent permitted by law, if the other Party becomes the subject of any voluntary or involuntary petition pursuant to applicable bankruptcy or insolvency laws, or a request for receivership, liquidation, or composition for the benefit of creditors and such petition, request or proceeding is not dismissed within sixty (60) days of filing; or (c) immediately upon written notice in the event that either Party reasonably believes that this Agreement or a Party’s performance thereunder will result in any violation of applicable law, and such violation cannot be promptly corrected to the Party’s reasonable satisfaction despite commercially reasonable measures, or is incurable as a matter of law. Without limiting the foregoing, this Agreement shall automatically terminate in the event Customer becomes a Restricted Party (as defined in Section 15.2).“
- Section 16.1 and is hereby replaced by the following:
“16.1. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of France.”
- Section 16.2.1 is hereby replaced by the following:
“16.2.1. Rules and Place of Arbitration. For Customers incorporated in France, binding arbitration shall be conducted in accordance with the Rules of Arbitration of the International Chamber of Commerce (“ICC”) and administered by the ICC. The arbitration shall be conducted in the English language in Paris, France, unless otherwise agreed by the Parties.”
- Section 17.2 is hereby replaced with the following:
“17.2. Assignment. This Agreement may not be assigned, delegated, or transferred by Customer without Checkmarx’s written consent, and any attempt to take such action shall be void and without effect. Checkmarx may assign this Agreement, or any rights or obligations found therein, including but not limited to its Affiliates, or to an entity which purchases all or substantially all of its assets, or acquires control of Checkmarx by reason of a merger or acquisition, sale of stock, or otherwise, it being understood that in this case Checkmarx shall not be jointly or severally liable with the concerned Affiliate in relation to the performance of the Agreement as at the date of the assignment.”
- Section 17.18 is hereby replaced by the following:
“17.18. Contracting Entity. For Customers incorporated in France, the Checkmarx contracting entity is Checkmarx France S.A.S., a Société par Actions Simplifiée incorporated under the laws of France, with a share capital of 10 000 €, registered under the number 879 773 257 RCS STRASBOURG with its Registered Office at 1 rue des Arquebusiers 67000 Strasbourg, France.