GENERAL SOFTWARE LICENSING TERMS AND CONDITIONS

Version 07/12/2018

ARTICLE 1 –  Preamble

The Software Packages offered by Cocolabs are designed to meet the needs of most users.

As part of its duty to provide information and advice, Cocolabs has provided Customer with a commercial proposal and the Functional documentation indicated in Appendix 1 entitled “Description of the functional specifications” presenting the Software Package and/or Module, which Customer confirms it has read.

Based on this information, Customer is responsible for ensuring that the Software Package meets its needs and circumstances.

To this end, Customer may request additional information from Cocolabs and/or attend a further demonstration of the Software Package and/or Cocolabs Module prior to accepting the License, failing which Customer will be deemed to have been sufficiently informed.

No scope statement or written statement of requirements introduced by Customer will be taken into account by Cocolabs under the License unless Cocolabs has expressly approved and appended it to this Agreement before signing the Purchase Order.

ARTICLE 2 –  Definitions

In this License, the following expressions, when capitalized, shall have the following meanings:

  • Purchase Order: refers to the specific document signed by the Parties, containing the price and the special conditions applicable to the License. A Commercial proposal issued by Cocolabs and accepted by Customer constitutes a Purchase Order.
  • Customer: refers to Cocolabs’ contracting partner, the legal or natural person intervening in the context of its professional, commercial, industrial, artisanal or liberal activity.
  • Source Code: refers to all of the instructions and lines of code in the Software Package and/or Cocolabs Module to which access is required to operate and modify the Software Package and/or the Module.
  • Object Code: refers to the binary files generated via compilation of the Source Code.
  • COCOLABS: refers to the legal entity distributing the Software Package and/or Cocolabs Module under the License.
  • Contribution: refers to all the modifications, corrections, translations, adaptations and/or new feature integrated into the Software Package and/or Cocolabs Module by Customer.
  • Custom development: refers to a set of programs developed specifically by Cocolabs at Customer’s request. Under this License, Custom Developments are subject to the same laws and contractual obligations as the Cocolabs Modules.
  • Functional documentation: refers to the information made available to Customer by Cocolabs describing the functional characteristics of the Software Package and/or Cocolabs Module that is the subject of the License. The functional documentation is listed in the “Description of the Functional Specifications” appendix of the License and/or Purchase Order.
  • Confidential information: oral or written information transmitted as Data, in documents, or in any other form, relating to the activity of which either of the Parties may become aware at the time of the License and referred to as “confidential” by one of the Parties.
  • Development Instance: refers to the copy of the source codes and data used internally by Customer in order to allow Customer’s staff to develop the Software Package and/or Cocolabs Module. Development Instances are solely for Customer’s internal use and may only be used to the purpose of a Production Instance.
  • Production Instance: refers to the source codes and data deployed in production for the operational use of the Software Package and/or Cocolabs Module on a domain or sub-domain name.
  • License: refers to the set of contractual documents consisting of several parties and documents, namely the Purchase order, these General licensing terms and conditions, and any Appendices. The General Licensing Terms and Conditions can be consulted and downloaded on the Cocolabs website at https://www.cocolabs.io/en/cgll/
  • Software Package: refers to the Software Package provided by Cocolabs in the form of Object Code and/or Source Code and, where applicable, its Functional Documentation, in their condition at the time of Customer’s acceptance of the License.
  • Commercial proposal: offer of a Cocolabs Software Package and/or Module license made by Cocolabs to Customer, listing the essential parts of the License.
  • Update: refers to Software Package and/or Cocolabs Module Updates made by Cocolabs throughout the duration of the License and made available to Customer.
  • Cocolabs Module: refers to a set of source files developed by Cocolabs permitting the creation of features or services in addition to those provided by the Software Package. These Cocolabs modules are subject to the same usage rights and licensing conditions as the Software Package.
  • External Module: refers to any Module developed by Customer that is not derived from the Software Package and/or a Cocolabs Module, such that the External Module and the Software Package and/or Cocolabs Module run in separate address spaces, calling each other up as they run.
  • “Party(ies)” refers to Cocolabs and/or Customer;
  • Holder: refers to the holder(s) of the copyrights to the Software Package and/or Cocolabs Module.
  • User: refers, for the purposes of granting the right to use the Software Package and/or the Module, to a natural person who is a member of Customer’s staff and authorized by Customer to use the Software Package and/or Cocolabs Module.

These expressions may be used in both singular and plural form.

ARTICLE 3 –  Purpose

Cocolabs, a simplified joint-stock company with a capital of 1,112 euros, listed on the Paris Trade and Companies Register under number 814 013 041 00029, whose registered office is located at 67 rue de Provence in Paris (75009, France) and Customer are bound by this License.

The purpose of the License is to define the terms and conditions under which Customer may make use of the Software Package and any Cocolabs Modules according to the price stipulated on the Purchase Order, and the terms for accessing updates to the Software Package and/or Cocolabs Module under the License.

The Agreement consists of the following contractual documents, presented in hierarchical order of decreasing legal value:

  • the General licensing terms and conditions;
  • the Purchase Order(s);
  • the Appendices;

Any additional License or Custom Development will be the subject of a new Agreement.

Finally, the License does not obligate Cocolabs to provide technical assistance or maintenance services for the Software Package and/or Cocolabs Module. However, Cocolabs remains free to offer such services. The terms and conditions of such technical assistance and/or maintenance will then be determined in a separate document.

In case of contradiction between one or more of the stipulations contained in any of these documents, the General Licensing Terms and Conditions shall prevail.

ARTICLE 4 –  Effective date – Term – End of the License

The License takes effect at the time the Purchase Order is signed.

By signing the Purchase Order, Customer is deemed to have read the License as defined in Article 2 and to have duly accepted it without reservation.

Unless otherwise stated on the Purchase Order, the initial term of the License is ten (10) years.

However, access to the License Updates is provided for a period of twelve (12) months from the signing of the Purchase Order.

This License grants Customer:

  • a right to use the Software Package and/or Cocolabs Module as defined in Article 5 of this License for the duration defined in the contract, within the contractual and usage limits defined in the License;
  • a right of access to Cocolabs’ updates to the Software Package and/or Cocolabs Module for the duration defined in this contract, under the conditions defined in Article 6.

At the end of the term stipulated in the License, Customer will no longer be able to access Cocolabs’ updates to the Software Package and/or Cocolabs Module.

At the end of the initial term stipulated in the License, the Parties must sign a new Agreement to allow Customer to continue to benefit from the Updates.

ARTICLE 5 –  Scope of the Rights of use

Cocolabs grants Customer, who accepts, a non-exclusive, non-transferable and personal right to use the Software Package and/or Cocolabs Module defined in the “Description of the features of the software package” appendix of the License and/or the Purchase Order:

  • Limited to Customer’s personal needs;
  • For the whole world, within the contractual and usage limits related to the Production Instance of the Software Package and / or the COCOLABS Module defined in the License;

For the Production Instance of the Software Package and/or Cocolabs Module via a single domain or sub-domain name;

The right of use mentioned above includes the following rights on the Software Package and/or Cocolabs Module:

5.1. Right of operational use of the Software Package and Cocolabs Module

Customer is authorized to use the Software Package and/or Cocolabs Module, limited to Customer’s personal needs and to one Production Instance via a single domain or sub-domain name, it being stipulated below that this entails:

  1. permanently or temporarily copying the Software Package and/or Cocolabs Module, in whole or in part, by any means and in any form, limited to Customer’s personal needs indicated on the Purchase Order;
  1. loading, displaying, running, or storing the Software Package and/or Cocolabs Module on any media.
  1. the possibility of observing, studying, or testing its operations to determine the ideas and principles underlying any part of this Software Package or the Cocolabs Module; and this, when Customer performs any loading, displaying, running, transmission or storage operations on the Software Package or Cocolabs Module that it is entitled to perform under the License.

Customer is free to deploy several Production Instances, as long as they are all identical and are used via a same and single domain or sub-domain. Customer is also free to deploy several Development Instances internally to be used to the purpose of Production Instances via a single domain or sub-domain.

Customer may also make a backup copy of the Software Package and/or Cocolabs Module in accordance with Article L. 122-6-1 of the Intellectual Property Code. In this case, Customer must maintain all of the proprietary notices on the Software Package and/or Cocolabs Module and the Functional Documentation.

Customer will only use this backup copy in case of failure of the corresponding Software Package and/or Cocolabs Module copy provided by Cocolabs.

5.2. Right to make Contributions

The right to make Contributions includes the right to translate, adapt, arrange or make any other changes to the Software Package and/or the Module, and the right to reproduce the resulting Software Package and/or Cocolabs Module, limited to Customer’s personal needs and only one Production Instance.

5.3. Distribution rights

This License does not confer the right to distribute the Software Package and/or Cocolabs Module to third parties. This includes a prohibition from distributing, transmitting and/or communicating either the Software Package or the Cocolabs Module to the public on any media and a prohibition from placing one or more copies of the Software Package and/or Cocolabs Module on the market, for a price or free of charge, by any process.

Customer is therefore not authorized to distribute copies of the Software Package and/or Cocolabs Module to third parties, as-is or modified, for a price or free of charge.

As an exception to the foregoing, Customer may distribute copies of the Software Package and/or Cocolabs Module to third parties, for a price or free of charge, in the following cases:

  • Customer has Cocolabs’ specific prior written agreement to the distribution of copies of the Software Package and/or Cocolabs Module to third parties;
  • the Software Package and/or Cocolabs Module under this License is made available to the public by Cocolabs under an open source license. In this case, Customer may automatically benefit from the open source license applicable to the Software Package and/or Cocolabs Module concerned;
  • Customer assigns a site and/or platform using the Software Package and/or Cocolabs Module to a third party, for a price or free of charge. If necessary, Customer may transfer its License to the third-party purchaser of the aforementioned platform and/or site, subject to the purchaser’s signing and sending Cocolabs a written agreement to comply with the terms and conditions of the License granted to Customer. By doing so, Customer is informed that by transferring the License to a third party it loses the benefit of any right to use the Software Package and/or Cocolabs Modules.

Furthermore, under no circumstances will Customer be authorized to distribute Development Instances to third parties, Development Instances which can only be used to the purpose of a Production Instance via a single domain or sub-domain.

However, if Customer has developed an External Module, the conditions of the License do not apply to the External Module, which may be distributed under a different license agreement.

However, neither Customer nor any third parties may use an External Module that calls on the features of the Software Package and/or Cocolabs Modules on a separate address space from the domain and/or sub-domain name designated for the operational use of the Production Instance.

Customer’s compliance with these provisions is for Cocolabs an essential condition of the License.

ARTICLE 6 –  Access to Cocolabs Updates

Customer has the right to access the updates for the Software Package and/or Cocolabs Module for the duration and under the conditions set forth in the terms of this License.

However, Customer is informed and accepts that Cocolabs will not make Updates for the Custom Developments ordered by Customer from Cocolabs.

Cocolabs has no automatic updating system.

Cocolabs will only make the Updates to the Software Package and/or Cocolabs Module available to Customer via download link.

However, Customer is solely responsible for the installing and running the Updates.

Under no circumstances can Cocolabs be held responsible for Customer’s not installing or running the Software Package and/or Cocolabs Module Updates provided by Cocolabs.

Similarly, Cocolabs does not guarantee the compatibility of the Software Package Updates if Customer modifies or applies special settings to the Software Package and/or Cocolabs Module.

ARTICLE 7 –  Delivery and installation

The Software Package and/or Cocolabs Module is delivered in the form of object codes and/or source code via a download portal.

In addition, the Software Package and/or Cocolabs Module is delivered in its most recent distributed version at the time the Purchase Order is signed.

Customer will install the Software Package and/or Cocolabs Module under its own responsibility, unless it has a purchased Cocolabs Service under a special agreement.

Customer will accept the ordered Software Package and/or Cocolabs Module on first delivery as long as it conforms to the Purchase Order and the “Description of the Functional Specifications” appendix.

Unless Customer informs Cocolabs in writing of the Software Package and/or Cocolabs Module’s non-compliance with the Purchase Order within thirty (30) days of downloading it, Customer is deemed to have irrevocably accepted the Software Package and/or Cocolabs Module under the License without reservation.

ARTICLE 8 –  Intellectual property

All the components of the Software Package and/or Cocolabs Modules, as well as the source codes and all their future and custom developments made by Cocolabs remain the exclusive property of Cocolabs.

This License does not entail any transfer of ownership rights to Customer.

As such, Cocolabs guarantees that it holds:

– either the copyright on the Software Package and/or Cocolabs Module and their Functional Documentation,

– or an authorization from the author of the Software Package and/or Cocolabs Module, and that it may therefore freely grant Customer the right of use stipulated herein.

ARTICLE 9 –  Cocolabs’ Obligations

In accordance with standard practice in the profession, Cocolabs, which takes all possible care in fulfilling its obligations, is subject to an obligation of means.

Cocolabs will provide Licenses corresponding to the criteria set out in the Purchase Order.

Cocolabs guarantees Customer peaceful enjoyment of the Software Package and/or Cocolabs Module.

Cocolabs is in compliance with the tax and social legislation, up to date with the payment of its social security contributions, and able to provide evidence of compliance with the various applicable reporting obligations upon Customer’s request.

ARTICLE 10 –  Customer’s Obligations

Customer agrees to:

  • pay the price due to Cocolabs as stipulated in Article 11 of the General Licensing Terms and Conditions and respect the agreed-upon deadlines;
  • transmit to Cocolabs all the information required at the time the License is constituted and throughout its performance;
  • specify precisely its technical and operational needs.

Customer shall refrain from any use of the Software Package and/or Cocolabs Module that is not explicitly authorized herein.

In general, Customer will not infringe the rights or the legitimate interests of Cocolabs, directly or indirectly.

Accordingly, Customer will not:

  • use the Software Package and/or Cocolabs Module outside the conditions stipulated in the License;
  • make a backup copy other than that stipulated in the License;
  • lend, rent or sell the Software Package and/or Cocolabs Module or their Functional Documentation, regardless of the means, other than as stipulated in the License;
  • distribute to third parties or market the Software Package and/or the Cocolabs Module, in their current state or modified, or their Functional Documentation, whether for a price or free of charge, other than as stipulated in the License;

If Cocolabs expressly authorizes third parties to use and access the Software Package and/or the Cocolabs Module, in writing and upon Customer’s request, Customer acts as guarantor that these third parties will respect the terms of the License.

Customer will inform Cocolabs in writing of any reproducible Faults found on the Software Package and/or Cocolabs Module and that would not be due to Customer’s modification or misuse of the Software Package and/or Cocolabs Module. More generally, Customer will collaborate actively with Cocolabs for the purposes of performing this License. Customer will respond to Cocolabs’ requests for information as soon as possible.

Customer acknowledges that the various elements of the Software Package and/or Cocolabs Module are production secrets and fall under the protection of software and intellectual works. As such, Customer agrees to treat them as confidential information as defined in this License for the duration of the License.

Customer undertakes to respect the notices of ownership on the Software Package and/or Cocolabs Module, the media or their Functional Documentation, including the obligations attributable to the Open Source Licenses granted on the various modules developed.

ARTICLE 11 – Pricing and payment terms

The right to use license and access to the Updates are provided in exchange for Customer’s advance payment of fees, the amount and frequency of which are defined in the Purchase Order.

The sums are portable and not collected on site.

In any case, payments are made by:

  • direct debit, or
  • bank transfer, or
  • credit or debit card.

All fees must be paid upon receipt of the invoice unless otherwise specified on the Purchase Order.

In case of late payment exceeding 10 days, for any reason whatsoever:

  • the sums due by Customer will be automatically subject to arrears interest, as of the expiry date and without prior notice, calculated daily at five (5) times the legal interest rate;
  • Customer will pay Cocolabs a lump-sum compensation of 40 euros for recovery costs in accordance with Articles L 441-6 and D 441-5 of the Commercial Code.

The Parties agree that all prices quoted in the License are fixed and firm for the duration of the License.

ARTICLE 12 – Compliance ‑ Warranty

Cocolabs warrants that the Licensed Software Package and/or Cocolabs Module complies with the Functional Documentation as defined in the “Description of the Functional Specifications” appendix and that it has been tested, verified and documented.

The above guarantee of conformity of the Software Package and/or Cocolabs Module is expressly limited to their conformity to the Functional Documentation and cannot be extended to a guarantee of conformity to the specific needs or a specific activity of a Customer or User.

It is Customer’s responsibility to ensure that the Software Package and/or Cocolabs Module are suitable to its needs and that they function properly and to ensure that they will not cause damage to people and/or property. In particular, Cocolabs does not guarantee that the Software Package and/or Cocolabs Module is error-free, that it will operate without interruption, that it will be compatible with Customer’s equipment and software configuration or that it will fulfill Customer’s needs.

Cocolabs undertakes exclusively to remedy any faults reported in the Software Package and/or Cocolabs Module compared to the Functional Documentation, with all due diligence possible, by making an Update available to Customer for download.

Except as permitted by law, any warranty other than those expressed in this article is expressly excluded.

ARTICLE 13 – Liability

13.1. Customer’s Liability

Customer is fully responsible for the use, management and control of the use of the Software Package and/or Cocolabs Module. It is responsible for using the Software Package and/or Cocolabs Module in accordance with the legislation in force.

Cocolabs declines any liability for the use of the Software Package and/or Cocolabs Module for fraudulent purposes.

In addition, Customer remains fully liable to Cocolabs for violations of the terms of the License by third parties or Users.

Customer shall make regular backups and archive all the data processed directly or directly by the Software Package and/or Cocolabs Module under its sole responsibility and management.

13.2. Cocolabs’ Liability

Cocolabs has only an obligation of means under this License.

Cocolabs is in no way liable to Customer for:

  • consequential damage related to the User’s non-performance of one of the obligations or use of the Software Package and/or Cocolabs Module contrary to the Functional Documentation;
  • the infection of Customer’s files by viruses and the potentially harmful consequences of this infection;
  • damage resulting from the use of a version of the Software Package and/or Cocolabs Module other than the most recent version made available to Customer via the Updates;
  • damage in case of combining and implementing, or using the Software Package and/or Cocolabs Module with programs or data not provided by Cocolabs.
  • damage to or destruction of Customer’s files, data or programs and the possible harmful consequences of this. It is Customer’s responsibility to guard against these risks by making regular backups;
  • any potential harm caused by the unavailability of the Software Package and/or Cocolabs Module and/or the Updates, regardless of the duration;
  • any harm that may be caused by changes in the applicable regulations, such as incidents, errors or delays that may occur in the context of the implementation of Updates that may be imposed by changes in the applicable regulations, with respect to both Customer and third parties.

Cocolabs will be only liable for direct and foreseeable damage resulting from a breach of its contractual obligations.

Cocolabs cannot be held liable for indirect or unforeseeable damage that may result from this License. Indirect loss is deemed to be any financial or commercial loss, loss of profit and operational use, orders or customers, data or files, or any action taken against Customer or a User by a third party.

If Cocolabs is held liable for direct damage suffered by Customer and/or the User, the latter’s right to compensation will be limited in any case and for the entire term of the License to the total amount received by Cocolabs for the acquisition of Licenses.

The Parties acknowledge that the price of the License reflects the sharing of the risks related to the License and the economic balance desired by the Parties, and that the License would not have been concluded on these terms without the limitations of liability set forth herein. The Parties expressly agree that the limitations of liability shall continue to apply even if the License is canceled or terminated.

Finally, the Parties agree that any action for damages against either or them, whether amicable or contentious, cannot be brought more than one year beyond the occurrence of the causal event. In any event, any action for damages against either Party is limited to a period of one (1) year after the expiration of the License, regardless of the cause.

ARTICLE 14 – Audit

In the context of the verification of Customer’s use of a Software Package and/or the Cocolabs Module in accordance with the usage rights granted under this License, Customer is informed that Cocolabs reserves the right to integrate into the Software Package and/or Module a mechanism allowing it to audit Customer’s use of the Software Package and/or Cocolabs Module.

Customer may not attempt to evade this audit mechanism or render it inoperative.

If the audit reveals a use that goes beyond the rights granted, additional fees will be billed to Customer.

Customer will pay for the License within 30 days of the invoice’s date of issue. If this is not settled within the aforementioned deadlines, Cocolabs may automatically terminate this License, thereby revoking the licenses granted, and initiate legal proceedings.

Customer’s information collected during the audit operations will be considered as confidential information within the meaning of the “Confidentiality” article herein and may only be used for the purposes of the audit and any adjustments that may become necessary, and/or in case of legal proceedings.

ARTICLE 15 – No solicitation of personnel

Each Party agrees not to solicit, hire, engage or otherwise retain the services, directly or indirectly, of any employee of the other Party. This commitment is valid for the duration of this License and for a period of one (1) year after its end. If one of the Parties fails to comply with this obligation, it will immediately pay the other Party a penalty equivalent to two (2) years’ gross remuneration of the employee concerned.

For the purposes of this agreement, a former employee of one of the Parties whose employment contract has been terminated for more than one (1) year, for whatever reason, cannot be considered an employee, and employing that person will therefore not give rise to the application of the above penalty clause.

ARTICLE 16 – Confidentiality

Cocolabs and Customer agree to treat as strictly confidential all information, methods and documentation that may be exchanged between the parties or that they may become aware of during the performance of this Agreement. The parties will not use this information for purposes other than those necessary for the proper performance of the Agreement, and will not disclose it, inter alia, to third parties without the prior consent of the party from whom the information, methods or documents concerned originated.

In particular, all information provided to the personnel, subcontractor and third parties of either party, all documents (economic, technical, operational, organizational, etc.) and data entrusted to them that are not available to the public, all interviews in which they participate, and all documents issued are considered strictly confidential.

The Parties will enforce this clause with all their corporate officers, staff, subcontractors, and third party contractors.

Each of the parties will take appropriate measures to preserve the confidentiality of the methods, information, documentation and other elements belonging to its contracting partner that may be communicated to it or to which it may have access during the performance of this Agreement.

The duty of confidentiality will continue for a period of two (2) years after the expiration of this License. It will lapse for any information that falls into the public domain independently of any actions of the party having received the information.

ARTICLE 17 – Data protection

Each Party is responsible for its obligations under the regulations on the protection of personal data, in particular Regulation No. 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (hereinafter “GDPR”) and Law No. 78-17 of January 6, 1978 on data processing, data files and individual liberties, as amended by Law No. 2018-493 of June 20, 2018.

Cocolabs takes the necessary measures to ensure the protection and confidentiality of the personal information that it holds or processes in compliance with the applicable regulations.

Cocolabs collects and processes data from Customer’s request for Commercial proposal and License subscription.

Cocolabs is thus the data controller in this context and has implemented a personal data protection policy, available at www.cocolabs.io/en/cocolabs-privacy-policy/.

ARTICLE 18 – Advertising

Customer authorizes Cocolabs to mention its name on a list of references that Cocolabs may distribute to its customers and prospects.

Cocolabs reserves the right to mention itself as creator of the website and to place its logo, its name or a comment of its choice related to the service provided, with a linkback to the Cocolabs site on all of the services created for Customer.

ARTICLE 19 – Termination

Cocolabs may automatically terminate the License if Customer breaches its obligations under the License and a notification sent to Customer produces no result within fifteen (15) days.

A Customer whose License is terminated may no longer access updates to the Software Package and/or Cocolabs Modules.

The License will be terminated immediately, without prior notice, in case of infringement or attempted infringement.

Use of the Software Package and/or Cocolabs Module as a production instance on another domain and/or sub-domain name than that stipulated on the Purchase Order constitutes infringement.

Cocolabs may terminate the License in case of Customer’s court-supervised liquidation, subject to the provisions of Article L. 641-11-1 of the Commercial Code.

ARTICLE 20 – Entire License, invalidity of a clause

This License expresses all of the obligations of the Parties.

If any provision of this License or any part thereof should be considered invalid, this invalidity shall have no effect on the other provisions. The Parties agree to modify the stipulations so that they are compatible with the laws in force.

ARTICLE 21 – Applicable law

This License is governed by French law.

ARTICLE 22 – Competent court

The Parties agree to make every effort to find an amicable solution to any difficulty that may arise during the performance, interpretation or termination of this License.

If no amicable solution can be found, the dispute shall be submitted to the Paris Tribunal de Grande Instance (Superior Court), notwithstanding multiple defendants or third-party claims, even for emergency proceedings or interim protective measures.