APPLICABLE CONDITIONS TO SOFTWARE LICENSES
ARTICLE 1- USER LICENSE
LIGHT & SHADOWS grants against payment, to the CLIENT, a personal, non-transferable, and non-exclusive right to use the SOFTWARE within the number limit of devices indicated in the purchasing order. This license is ranted for the duration indicated in the purchasing order. The license starts from the complete payment of the price. The right of correction, in accordance with article L. 122-6-1 of the Intellectual Property Code is held by LIGHT & SHADOWS.
When the purchasing order indicate that the license is for education purposes, the use of the license is reserved to pupils, students, teachers, professors or research teams directly concerned by an act of education, training, or research activity needing the use of the SOFTWARE. In this case, the use of the SOFTWARE can’t lead to commercial operations, direct or indirect, of any nature or form.
When it is indicated on the purchasing order that the license is for testing purposes, the use of the SOFTWARE can’t lead to any commercial operation, direct or indirect, of any nature or form, and the SOFTWARE can’t be used to produce a result that would be directly or indirectly communicated to a third party or placed on the market free of charge or against a payment.
ARTICLE 2- ACTIVATION KEY
The CLIENT acknowledges and accepts that the SOFTWARE is protected by a copyprotection system materialized in the form of an activation key.
This key is generated in function of the technical features of the device on which the SOFTWARE is destined to be used (SSID). Without this key, the SOFTWARE can’t be used. The CLIENT that needs a new key because of a change of device can, in the limit of 2 times per civil year, write a request to LIGHT & SHADOWS, attesting in writing with a copy of his/her ID that the SOFTWARE won’t be used on the old device. Every additional demand will be invoiced at the unit price of 100 euros (excluding tax).
ARTICLE 3- CORRECTIVE MAINTENANCE
When a service of corrective maintenance is indicated in the purchasing order, LIGHT AND SHADOWS commits to correct, remotely, any bugs or operation failure of the SOFTWARE in relation to its user documentation (hereafter INCIDENTS) and affecting the SOFTWARE during the maintenance duration indicated on the purchasing order. The present article applies under the guarantee mentioned and specified at the article 6.
3.1 INCIDENT reporting: Incident can be reported during working hours and working days – from 9AM to 12AM and from 2PM to 5PM (GMT+1) from Monday to Friday, excluding public holiday and not-working days. Incident reporting can be done by phone (communication fees are the responsibility of the CLIENT) or by e-mail, or any ticketing software.
3.2 INCIDENTS resolution: LIGHT & SHADOWS intervention will take place during the working hours and working days mentioned at the article 3.1. The intervention will be at the sole discretion of LIGHT & SHADOWS either by phone or using the use of a tele maintenance software, or via the communication of a patch or a workaround solution on optical storage or electronic communication (FTP, email, download link etc.)
3.3 Response time: LIGHT & SHADOWS commits to resolve as soon as possible; this obligation is an obligation of means for LIGHT & SHADOWS.
3.4 Exclusions from maintenance: LIGHT & SHADOWS’ obligation of corrective is waived in the following cases:
- the INCIDENT is not reproducible or sufficiently documented by the CLIENT;
- non-respect of the technical configuration required by LIGHT & SHADOWS;
- modification of the SOFTWARE by the CLIENT or a third party;
- unwillingness of the CLIENT to install a new version provided by LIGHT & SHADOWS or unwillingness to install a patch or a tele maintenance software or a workaround solution;
- unwillingness of the CLIENT to update a software of the required configuration;
- virus or malware on the devices where the SOFTWARE is installed;
- force majeure cases acknowledged by the law and tribunals…
The corrective maintenance does not include:
- development of new functionalities or modification of existing functionalities, that is to say progressive maintenance or the supply of new versions;
- improvement of SOFTWARE’s performances;
- data backup linked to the SOFTWARE and SOFTWARE’s backup;
- maintenance of the Operating System and of the softwares and materials required by the technical configuration to use the SOFTWARE;
- regulatory maintenance, that is to say, modifications of the SOFTWARE ordered by a change in the law or regulations;
- Restoration of data linked to the SOFTWARE in case of accidental or deliberate loss, or due to an INCIDENT.
ARTICLE 4- USER SUPPORT
When the support service is ordered, it is, for the duration specified in the purchase order, a technical assistance to use the SOFTWARE by phone during working hours and working days – from 9AM to 12AM and from 2PM to 5PM (GMT+1) from Monday to Friday, excluding public holiday and not-working days. Communication fees are the responsibility of the CLIENT.
ARTICLE 5 – SOFTWARE DELIVERY
The delivery is to be provided electronically. The SOFTWARE is delivered without source code and uniquely as an executable version or object code form. Unless the service is ordered, LIGHT & SHADOWS has no obligation to install, integrate or parameter the SOFTWARE. LIGHT & SHADOWS commits in all conscientiousness to deliver as soon as possible when no date of delivery is indicated on the purchase order. The delivery of the SOFTWARE and/or activation keys and the realization of services are conditional on the payment of their prices.
ARTICLE 6 – SOFTWARE GUARANTEE
The effective functioning of the SOFTWARE in accordance with it user documentation is guaranteed 90 days starting from the delivery day. Unless a corrective maintenance operation is indicated on the purchase order, LIGHT & SHADOWS has no correction obligation after 90 days. LIGHT & SHADOWS guarantees that the SOFTWARE is original and does not infringe the rights of intellectual property of a third party acknowledged by applicable laws and regulation in France (FR). The SOFTWARE is provided with no other guarantee of any nature or form. LIGHT & SHADOWS does not guarantee that the SOFTWARE does not contains bugs, anomalies for its effective functioning. LIGHT & SHADOWS does not guarantee any qualitative nor quantitative results or performances other than the one indicated on the user documentation. LIGHT & SHADOWS does not guarantee the compatibility or the interoperability of the SOFTWARE with softwares or equipment other than indicated in the required configuration or on the purchase order. LIGHT & SHADOWS does not guarantee the ascending compatibility with new versions of softwares and equipment indicated in the required configuration.
ARTICLE 7- ACCOUNTABILITY
The CLIENT is the sole entity to be accountable for the use of the SOFTWARE and bear the associated risks to its use. The CLIENT acknowledges having received from LIGHT & SHADOWS all the information related to the SOFTWARE functionalities therewith the CLIENT can assess in adequation with its needs before the order.
ARTICLE 8 – REQUIRED TECHNICAL CONFIGURATION
The softwares, equipments and networks required to use the SOFTWARE that are not provided by LIGHT & SHADOWS, will be specified in appendix of the purchase order, and if not on LIGHT & SHADOWS’ websites or in the user documentation that will be provided to the CLIENT.
APPLICABLE CONDITIONS TO EQUIPMENT SALES
ARTICLE 9 – EQUIPMENT DELIVERY
Unless it the mention « delivery by a carrier is included » is indicated on the purchase order all ordered equipment have to be picked up at LIGHT & SHADOWS’ offices. LIGHT & SHADOWS commits to provide, or if it is the case, deliver the equipment in the scheduled period indicated on the purchase order. The scheduled period is not a strict deadline and LIGHT & SHADOWS’ responsibility cannot be entailed in case of a delay in delivery that does not exceed (30) days.
In case of a delay in delivery exceeding (30) days, the CLIENT can request the cancellation of the sale. LIGHT AND SHADOWS will then reimburse the prepayments with interests at the legal rate applicable. LIGHT AND SHADOWS’ responsibility cannot be entailed in the case of a delay in delivery due to the CLIENT or to force Majeure.
In the case of delivery by a carrier, it is the CLIENT’s responsibility to verify the condition of the delivery and the number of packages. In case of visible damages, or missing hardware, it is the CLIENT’s responsibility to make a claim to the carrier. Should the CLIENT be absent at the time of the delivery, it is the responsibility of the CLIENT to cover expenditures related to the storage of the equipment and redelivery Costs.
It is the CLIENT’s responsibility to verify the condition of the material upon reception of the delivery or at the pickup at LIGHT AND SHADOWS’ offices. The CLIENT gets a 48 (forty-eight) hours from the reception of the goods to make a damage claim in writing to LIGHT & SHADOWS. LIGHT & SHADOWS will replace, at the earliest opportunity and at its own cost, the equipment which conformity default will be proven by the CLIENT. No other claim can be aimed in case of non-respect of the formalities by the CLIENT.
If the CLIENT is not available to receive the delivery when the equipment is ready to be sent, LIGHT & SHADOWS can choose to either store the equipment or use a third party to store the equipment, and at its sole discretion. Storage cost, and additional insurance costs or manutention costs will be invoiced additionally to the initial price of the equipment.
ARTICLE 10- RESERVATION OF OWNERSHIP
The ownership of the ordered equipment will only be transferred to the CLIENT once complete payment of the order, independently from the date of delivery of mentioned equipment. In case of reception of the equipment by the CLIENT before the complete payment of the order, the CLIENT must conserve the equipment in their original condition until the complete payment of the price.
ARTICLE 11- RISKS TRANSFER
Unless it the contrary is explicitly mentioned by both parties or mentioned in the purchase order, equipment’ damages or loss risks will be transferred to the CLIENT upon the date of delivery. LIGHT & SHADOWS will have fulfilled its delivery obligation from the moment LIGHT & SHADOWS has informed the CLIENT that the hardware was ready to be picked up or if the CLIENT has decided for a carrier option from the moment LIGHT & SHADOWS has passed on the hardware to the third party that has accepted them without any claim. In case the CLIENT is choosing the carrier, the CLIENT has no appeal right against LIGHT & SHADOWS in case of delivery failure of the transported equipment, or damages during the transportation.
ARTICLE 12- HARDWARE GUARANTEE
LIGHT & SHADOWS guarantees the CLIENT, in accordance with legal rules, against any lack of conformity of the hardware and against any hidden flaw, coming from design flaw or supply of hardware, unless there is neglect or fault by the CLIENT. The responsibility of LIGHT & SHADOWS can be entailed only in the case of proven neglect or proven fault, and is restricted to the direct prejudice, excluding any indirect prejudice, of any nature or form.
If, during the hereunder defined guarantee period, the CLIENT is not able to use the hardware in normal conditions of use and after having correctly followed manufacturer instructions, LIGHT & SHADOWS will replace or repair the equipment at the condition of a written notice from the CLIENT at the earliest opportunity and after LIGHT & SHADOWS has inspected the equipment and established the flaw affecting the hardware. Said equipment must be sent to LIGHT & SHADOWS by the CLIENT at his own expenses within two (2) months starting from the discovery of the suspected flaw.
Unless otherwise stipulated, the guarantee period for the Equipment is twelve (12) months starting from the date of delivery. The guarantee period for the equipment replacing the defective equipment during the guarantee period will be the remaining time of the initial guarantee period. This present guarantee will not be applicable for accessories or consumable supplies provided by LIGHT & SHADOWS, or to the equipment considerate as samples or product prototypes used for test or evaluations.
In this case, the only obligation of LIGHT & SHADOWS will be to endeavor the provision of equipment in accordance with the specifications, performance criteria approved by the CLIENT. The guarantee also will not be applicable when the flaws
flagged by the CLIENT are inexact or incomplete, or when all or parts of equipment provided to LIGHT & SHADOWS by a third party named by the CLIENT who does not provide a equivalent guarantee terms. The guarantee will not be applicable to the products that have undergone unauthorized (by LIGHT AND SHADOWS or the manufacturer) repair, replacement, modification or change.
This guarantee will also not be applicable in case of non-respect of the manufacturer instructions related to the use and safekeeping of the equipment.
At all events, in the case LIGHT & SHADOWS was held responsible, the guarantee of LIGHT AND SHADOWS would be limited to the amount excluding taxes paid by the CLIENT for the provision of the equipment.
APPLICABLE CONDITION TO SERVICES
ARTICLE 13- SERVICE PROVISION
Unless it is directly specified in the purchase order, services will be provided remotely and within the specified deadlines indicated in the purchase order. The client acknowledges and accepts he has an obligation of information and collaboration with LIGHT & SHADOWS and that he bears the sole responsibility of his requirements expression. The CLIENT declare he has informed LIGHT & SHADOWS in a complete and detailed way of every constraints that may have an effect on the provision of the service and in the respect of deadline. When the services are provided within the information, instructions or specifications provided by the CLIENT, LIGHT & SHADOWS cannot bear responsibility for a delay or non-conformity related to the results of the services and due to errors or omissions in the information, instructions or specifications given by the CLIENT. LIGHT & SHADOWS provides services as part of a general obligation of means.
ARTICLE 14- VALIDATION PHASE OF SERVICES
The CLIENT disposes of thirty (30) days, from the services delivery to do the validation phase and flag any flaw or non-conformity issues. In case of silence from the CLIENT side, or initiation of the production phase of the services, they will be considered as meeting the conformity of the order. Furthermore, the services related to informatic development or programming are guaranteed ninety (90) days from the delivery date against errors or anomalies (e.g. Bug). During this period, LIGHT & SHADOWS will correct without any additional fee for the CLIENT, as mentioned in article 3, every error or anomaly (e.g. bug) related to the services, assuming they are attributable to LIGHT AND SHADOWS. After this period of time, the CLIENT will have to order a corrective maintenance service as mentioned in article 3.
ARTICLE 15- INTELLECTUAL PROPERTY
LIGHT & SHADOWS remains copyright owner on all services. LIGHT & SHADOWS only grants to the CLIENT, a personal, non-transferable, and non-exclusive right to use the results. Results must be treated as confidential elements that cannot be disclosed to a third party without prior written authorization of LIGHT & SHADOWS.
APPLICABLE CONDITION TO EVERY PURCHASE ORDER
ARTICLE 16 - PAYMENT – PAYMENT INCIDENT
All payments are due thirty (30) days from reception of the invoice by the CLIENT. Orders or payments are irrevocable and unconditional. Payments may be carried out by check or wire transfer.
In case of payment incident, whether it is a payment delay, partial payment or debit rejection:
- interests of late payment calculated from the payment deadline to the effective date of payment will be rightfully due by the CLIENT to LIGHT & SHADOWS and without the need of a prior reminder or legal notice. The amount of those interests of late payment is the application of the remaining due amount of an interest rate equal to three times the legal interest rate in effect at the date of the payment incident.
- a flat fee of 40€ will be automatically due for any payment incident, by way of cost related to the collection fees supported by LIGHT & SHADOWS, without the need of a prior reminder or legal notice. An additional fee can be added in the case LIGHT & SHADOWS has to supports more expensive fees.
These amounts are not due when an effective safeguard procedure, judicial reorganization, or judicial liquidation forbid the payment of such debt obligation. In case of nonpayment, partial or total, LIGHT & SHADOWS, in addition to the possibility of suspending the execution of the present contract and to apply measures and actions both legal or conventional at its disposal in case of payment incidents, LIGHT & SHADOWS will also be able to cancel the present contract if a notice sent to the CLIENT by registered letter with acknowledgement of reception remains unanswered for a period of eight (8) days from the delivery of the letter or from the date of its first submission.
ARTICLE 17 - RESPONSIBILITY
The CLIENT acknowledges and accepts that, in the case LIGHT & SHADOWS’ responsibility was acknowledge by an enforceable judicial decision or final court decision, it would be limited to the price of the concerned order. By no mean a party shall bear responsibility for indirect damages related to an order, including notably but not only business interruption loss, financial loss, income loss, profit loss, opportunity loss, reputation or renown loss, client loss, prospect loss, commercial or economical prejudice.
ARTICLE 18 – FORCE MAJEURE
None of the parties can bear responsibility for delay, inexecution, or any other breach of its obligation indicated in the Contract, when this default results from a force majeure case acknowledged by the law and the tribunals. In case of force majeure, the article 1218 of the French Civil Code will be applicable.
ARTICLE 19 – TRANSFERABILITY
The CLIENT may not transfer his rights and obligations resulting from an order with prior written consent of LIGHT & SHADOWS.
ARTICLE 20 – TERMINATION FOR BREACH
In case of breach by on party of one of its obligations, each party shall be able to rightfully terminate the order with a registered letter with acknowledgment of reception without prejudice of compensation sums to which the party could be entitled to. The termination shall be effective the date of first submission of the registered letter with acknowledgment of reception to its recipient.
The CLIENT acknowledges and accepts that the termination of a license contract has for consequences the automatic termination of the services related to the licensed software.
In all cases, the termination of the Contract will not exempt the CLIENT of its obligation of a payment due before the termination date, being reminded that the received payments by LIGHT & SHADOWS remain final and the payments due at the termination date remain due independently of the termination occurrence.
ARTICLE 21 – DATA PROTECTION – GDRP
Personal data are susceptible to be collected by LIGHT & SHADOWS in its capacity as data management, for the following reasons : invoicing and quote for services, sales and licenses; management and services provision, management of rights relating to the «Informatique et liberté» French law, commercial solicitations for further products or services of LIGHT & SHADOWS.
The data susceptible to be treated by LIGHT & SHADOWS for the reason mentioned above might concern identification data (first and last name, address, email address, phone number, company name, position, login and password), data related to connexion to LIGHT & SHADOWS’ servers (IP address, requests), data related to customer relationship management or project management.
These data are collected for a duration of five (5) years starting at the end of the commercial relationship without any additional legal or regulation obligation implying a longer storage period. As for article 77 of GDRP regulation (n° 2016/679 of April 27th 2016) it is reminded that without any prejudice from any other administrative or judicial appeal, the person whose personal data are has the right to make a complaint to the CNIL, if he/she considers that the personal data treatment that concerns him/her is in violation of the applicable regulations and laws in terms of personal data. It is also reminded that this person has the right, under certain conditions, to ask for the access to those personal data, to ask for the correction or erasure of these data (or limitation of treatment), to oppose the treatment of the data or to withdraw his/her consent for legitimate motives. This person shall also have the right, under certain conditions, to the portability of the data and to define the fate of these data after his/her death. For any demand related to data treatment and collection the concerned person can address his/her demands by post to LIGHT & SHADOWS at the address indicated on the purchase order.
ARTICLE 22 – STAFF NON-SOLLICITATION CLAUSE
The CLIENT commits expressively and irrevocably, directly or indirectly, notably through a third party or a company or another entity, not to sollicitate and contact any LIGHT & SHADOWS for the purpose of hiring, directly or indirectly for any form or function (employee, consultant or corporate representative).
ARTICLE 23 – DOMICILIATION – APPLICABLE LAWS AND COMPETENT COURTS
Both parties domiciliate, except by way of specific derogation, at the addresses of their respective headquarters. Both parties commit to prioritize amicable settlement to resolve any conflict related to the execution or interpretation of present contract. The present General Conditions are subject to French Law (FR). Competent courts are the courts of Paris (FR-75), notwithstanding the plurality of defending attorney or guarantee call.