CHECKMARX TERMS OF SERVICE France - Checkmarx

CHECKMARX TERMS OF SERVICE – France

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.

  1. Section 3.5(c) of the Agreement is hereby replaced with the following:

“(c) reverse engineer, decompile, disassemble, modify or create derivative works of the Solutions, Services or Documentation except to the extent legally allowed;”

  1. Sections 6.1 and 6.2 of the Agreement are hereby replaced with the following:

“6.1 Proprietary Rights. The Solutions, Services and Documentation are licensed, not sold, and Checkmarx, its Affiliates and licensors retain all right, title, and interest in and to the Solutions, Services and Documentation, and all copies, improvements, enhancements, modifications, and derivative works of the Solutions, Services and Documentation, including, without limitation, all patent, copyright, author’s rights (“droits d’auteur”), trade secret, trademarks, and other intellectual property rights. Any Software licenses granted in this Agreement do not grant any rights whatsoever to the source code of the Software. All express or implied rights to the Solutions, Services and Documentation not specifically granted herein are expressly reserved to Checkmarx, its Affiliates and licensors.

6.2. 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 Solutions, 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 Solutions, Services Documentation and any materials provided by Checkmarx under this Agreement.

  1. Section 7.2.1 of the Agreement is hereby replaced with the following:

“7.2.1. 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, Statement of Work or Work Description. 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.”

  1. For the purpose of sections 8.2, 9.2 and 11.2, termination shall be understood as termination as of right (“de plein droit”), without judicial formalities.
  1. Section 8.4 of the Agreement is hereby replaced with the following:

“8.4. Disclaimer of Warranties. WITH THE SOLE EXCEPTION OF THE LIMITED WARRANTY PROVIDED IN SECTION 8.1, ALL SOLUTIONS, 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 SOLUTIONS, SERVICES OR DOCUMENTATION WILL MEET THE REQUIREMENTS OF CUSTOMER, THAT THE OPERATION OF THE SOLUTIONS OR SERVICES WILL BE UNINTERRUPTED AND/OR ERROR FREE, OR THAT THE SOLUTIONS WILL DETECT OR RENDER CUSTOMER’S CODE FREE FROM ALL ERRORS, VULNERABILITIES, OR INTRUSIONS.”

  1. Section 10 is hereby replaced with the following:

“10. 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 FIRST EVENT GIVING RISE TO THE CLAIM.”

  1. Section 13.1 is hereby replaced by the following:

“13.1. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of France.”

  1. Section 13.2 is hereby replaced by the following:

“13.2. Dispute Resolution. In the event of any controversy or claim arising out of or relating to this Agreement, the Parties shall consult and negotiate with each other and attempt to reach a solution satisfactory to both Parties. If the Parties do not reach a settlement within sixty (60) days, any unresolved controversy or claim arising out of or relating to this Agreement shall be resolved by binding arbitration c 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.”

  1. Section 14.2 is hereby replaced with the following:

“14.2. 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.”

  1. Section 14.19 is hereby replaced by the following:

“14.19. 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.