Updated 07/24/2024
Terms and conditions of use
SAS PAATCH
RCS Paris
24 Rue de Cichy 75009 Paris
hello@paat.ch
1. Definitions
Unless otherwise stated, the following definitions shall apply in this Test License Agreement: "Business Day" means a normal working day from 9:00 a.m. to 5:30 p.m. (Central European Time) from Monday to Friday, excluding legal holidays in France;
"Customer" means the legal entity identified in the Test Order as the customer and who signs the Test Order ;
"Test License Agreement" means the terms and conditions of this Test License Agreement and the Test Order, which forms an integral part of this Test License Agreement;
"Effective Date" means the effective date specified in the Test Order ;
"Documentation" means the technical and functional information about the Product that Paatch generally makes available to its Customers from time to time at https://documentation.paat.ch/ ;
"Test License Fee" means the license fee specified in the Test Order for testing the Service ;
"Confidential Information" of a Party means information of that Party, communicated to the other Party in the course of negotiations or cooperation between the two Parties in written, oral, electronic or other form, and which (i) is explicitly designated as confidential or proprietary, (ii) must reasonably be regarded as confidential, or (iii) is traditionally regarded as being of a confidential nature, whether or not exclusively designated as such, including but not limited to information and facts concerning business plans, customers, potential customers, personnel, suppliers, partners, investors, subsidiaries or others, training methods and materials, financial information, marketing plans, sales prospects, customer lists, inventions, program features, discoveries, ideas, concepts, know-how, techniques, formulas, blueprints, software (in object and source code form), documents, drawings, prototypes, methods, processes, procedures, codes, and technical or trade secrets, including all copies of any of the foregoing as well as analyses, studies or reports containing, based on or reflecting any of the foregoing. Paatch's Confidential Information includes, without limitation, the Service;
"Test License" means a personal, limited, restricted, temporary, non-exclusive, non-transferable and non-assignable license to use the Service;
"Software-as-a-Service" or "LS" means the software delivery model that Paatch provides in which Paatch's proprietary software and related data are centrally hosted in specific data centers and accessible to the Customer by means of a web browser or an API on the Internet. The LS is made available hosted and managed in the data center(s) of Paatch's hosting partner, which is currently AWS ;
"Initial Period" means the initial period for which this Test License Agreement is entered into as set forth in the Test Order. The Initial Period commences on the Effective Date;
"Service" means Paatch's exclusive Software-Service made available to the Customer by Paatch, including the functionalities described in the Test Order ;
"User" means an authorized user of the Customer who has access to the Service through the Customer solely for the purpose of testing the functionality and integration capabilities of the Service.
2. Test license to use the Service for the following purposes
test
2.1 Subject to the terms of this Test License Agreement and Customer's timely payment to Paatch of the applicable Test License Fees, Paatch grants Customer a personal, limited, restricted, temporary, non-exclusive, non-transferable and non-assignable license to use the Service in accordance with the applicable Documentation, for the sole purpose of validating the functionality and integration capabilities of the Service in a test environment. The Customer is not authorized to use the Service in a production environment or for actual commercial purposes.
2.2 Paatch reserves all rights not expressly granted to the Customer in this Test License Agreement. The Test License does not grant any right to sublicense or redistribute the Service, or any part thereof, by any means or in any form. The Test License does not grant any right to translate, modify, adapt, alter, decompile, decompose, disassemble or reverse engineer the Service, or any part thereof, by any means and in any form whatsoever. The Customer may not copy the Service, or any part thereof, by any means and in any form, except to the extent that the Customer is legally permitted to do so for testing purposes without Paatch's permission and notwithstanding this prohibition on copying. The Test License does not grant any right to error correction, support or maintenance of the Service.
2.3 The Service will be made available to the Customer on the Effective Date (or no later than ten (10) business days thereafter).
2.4 The Parties expressly agree that the Customer warrants that Users will at all times comply with the terms and conditions set forth in this Test License Agreement.
3. Customer's obligations
3.1. The Customer acknowledges (and agrees) that it may only process test data (fictitious data) when testing the Services. This obligation includes a prohibition on the Customer uploading any personal data when using the Services. In addition, the Customer will only use those features of the Services that do not require the processing of personal data. The Customer shall indemnify Paatch in the event of any breach of the provisions of this Article resulting in damages to Paatch.
3.2. The Customer undertakes not to :
a) make backup copies of the Service, unless and to the extent permitted by applicable law;
b) alter or modify the Service;
c) circumvent any technical restrictions of the Service;
d) reverse engineer, translate, decompose or disassemble the source code of the Service, or otherwise (attempt to) discover, copy or create derivatives based on the source code of the Service;
e) organize or create derivative works based on the Service without the express written consent of Paatch ;
f) assign, distribute, license, offer for lease, transfer, sell, lease with option to purchase, rent, charge or otherwise deal in or encumber the Service, or use the Service on behalf of any third party, or make it available to any third party, or authorize or permit any third party to do the same, except as expressly stated otherwise in this Test License Agreement or to the extent necessary for testing purposes;
g) remove or alter any copyright or other proprietary notices on any of the Services.
4. Property rights
4.1. Paatch is and remains the sole and exclusive owner of the Service and all intellectual property rights therein. Nothing in this Agreement shall transfer to the Customer any title or ownership in or to the Service, and the Customer's sole right in and to the Service is to use the Service during the term of this Test License Agreement in accordance with the terms and conditions set forth herein.
4.2. The Customer agrees not to remove, delete or alter in any way any proprietary markings, including but not limited to any trademark or copyright notice, on or in the Service, or visible during its operation, or on any Documentation. The Customer agrees to incorporate or reproduce such proprietary notices on any backup or other authorized copy.
4.3. Paatch shall retain all rights and title, including all intellectual and industrial property rights, in and to its pre-existing IP, which shall be defined for the purposes of this Test License Agreement as including proprietary tools, methodologies, equipment, know-how, processes, technologies, modules, software, components, programs, analyses and structures developed or used by Paatch prior to the Effective Date, or developed independently of this Test License Agreement, including improvements and augmentations to the foregoing tools and equipment.
5. Confidential information
5.1. Chaque Partie traitera comme confidentielles et gardera secrètes toutes les Informations confidentielles reçues de l’autre Partie, et ne divulguera pas à des tiers quelconques, autres que ses agents ou consultants lorsque la divulgation est nécessaire, toute Information obtenue lors de la négociation et de l’exécution du présent Contrat de Licence de test, et ce uniquement si ces agents, employés, conseillers ou consultants sont tenus par une obligation de confidentialité au moins aussi stricte que celle stipulée dans le présent article.
5.2. Confidential Information disclosed under this Test License Agreement may not be used by the other Party for any purpose other than those necessary to fulfill its obligations under this Test License Agreement.
5.3. Both Parties shall take precautions to preserve the confidentiality of the Service and, in particular, the Customer undertakes to :
a) not (and to prohibit its Users, employees and agents from, and not to permit any third party to) copy or otherwise exploit any component of the Service other than as provided in this Agreement, and not to disclose any such component to any third party.
b) ensure that all copies of any portion of the Service made pursuant to the terms of this Test License Agreement contain a permanently legible reproduction of Paatch's copyright notice and a confidentiality notice.
c) promptly notify Paatch of any breach of confidentiality of which it becomes aware, and provide all reasonable assistance to Paatch in this regard.
5.4. The provisions of this article shall not apply to any secrets or information which :
a) are published or enter the public domain other than as a result of a breach of the Test License Agreement,
b) which can be shown to have been known to the receiving Party prior to disclosure by the disclosing Party,
c) have been lawfully obtained from a third party other than through a breach of that third party's confidentiality, or
d) which can be shown to have been created by the receiving Party independently of the disclosure.
5.5. The Receiving Party may disclose Confidential Information to the extent required by a court order or other governmental authority, provided that the Receiving Party:
(a) notify the disclosing Party reasonably in advance of the disclosure to afford the disclosing Party a reasonable opportunity to obtain a protective order or equivalent relief, unless the receiving Party is prohibited from doing so by law,
b) reasonably cooperate with the Disclosing Party and use reasonable efforts to obtain a protective order or other appropriate measure,
c) discloses only that part of the Confidential Information which is legally required to be disclosed, and
d) make reasonable efforts to obtain reliable written assurances from the relevant judicial or governmental body that it will afford the Confidential Information the highest level of protection under applicable law or regulation.
5.6. The covenant set forth in this Section shall take effect as of the period of negotiations between the Parties, shall supersede any prior non-disclosure agreement executed between the Parties (if any) and shall survive for a period of five (5) years after the termination or expiration of this Test License Agreement.
6. Terms of payment
6.1. Unless explicitly stated otherwise in the Test Order, the Test License Fee shall be paid by the Customer to Paatch upon signature of the Test Order (unless otherwise agreed therein), and as specified therein.
6.2. All payments of invoices sent by Paatch to the Customer under this Test License Agreement shall be final and non-refundable. The Customer explicitly accepts electronic invoicing. Invoices will be sent electronically in PDF format to the Customer's e-mail address specified in the Test Order. The Customer may request Paatch to send a paper copy of the invoices to a physical address.
6.3. The Customer agrees to make all payments due to Paatch under the terms of this Test License Agreement within thirty (30) days from the date of an invoice in Euros, unless the parties have agreed otherwise in writing. In the event of late payment, all of the Customer's payment obligations to Paatch shall become immediately due and payable.
6.4. Each invoice issued by Paatch will be deemed definitively accepted by the Customer if it has not been contested by registered letter addressed to Paatch explaining the reason for the contestation, and this within thirty (30) days following the invoice date of the invoice concerned.
6.5. The amount of any invoice not paid within thirty (30) days from the date of the invoice will automatically give rise to the payment of late payment interest equal to the legal interest rate provided by law. Paatch may pass on all administrative costs and costs incurred by Paatch for the recovery of any overdue amount and any damages suffered by Paatch as a result of such default, with a minimum of 10% of the overdue amount or 250 EUR, whichever is higher.
6.6. All fees payable to Paatch under this Test License Agreement shall be paid without right of set-off or counterclaim, and free and clear of any deductions or withholdings of any kind, except as required by law, in which case the Customer agrees to pay Paatch such additional amounts as are required so that the net amounts received by Paatch after all deductions and withholdings are not less than the amounts that would have been received in the absence of such deductions or withholdings. The amounts to be paid under this Test License Agreement do not include any value added tax or other applicable taxes, which are invoiced additionally to the Customer. The Customer is responsible for the payment of all general, national or local taxes, import taxes, use taxes, value-added taxes, withholdings or other taxes related to the provision or use of the Service. The Customer shall promptly reimburse Paatch for any taxes or duties paid by Paatch.
6.7. If the Customer is declared bankrupt, applies for a moratorium, has its assets generally seized, goes into liquidation or is dissolved, all amounts due under this Test License Agreement shall become immediately due and payable.
7. Period and termination
7.1. This Test License Agreement shall commence on the Effective Date and shall continue in effect for the Initial Term and shall automatically terminate thereafter (unless otherwise agreed in the Test Order). This Test License Agreement will terminate automatically if the Customer signs a full license agreement with Paatch.
7.2. Paatch may terminate this Test License Agreement at any time upon two (2) weeks written notice by e-mail. Paatch will reimburse the Customer on a pro-rata basis for the Test License Fees paid (if any).
7.3. The exercise of the right of termination granted to either Party shall be without prejudice to the legal rights or remedies available to each Party against the other in the event of breach of the terms of this Test License Agreement.
7.4. Upon expiration or termination of this Test License Agreement, the Customer will destroy or return all copies of information, even if modified (including but not limited to: the Service, documentation, data files, etc.) transmitted to or provided by Paatch to the Customer and existing at the time of expiration or termination, and the Customer will represent in writing and under oath that it has complied with this obligation.
8. Effects of termination
Upon termination of this Test License Agreement for any reason:
a) The Customer's right to use the Service shall automatically terminate and all licenses granted to the Customer under this Test License Agreement shall be automatically terminated by Paatch SAS - CONFIDENTIEL Page 3 of 3 ;
b) Each Party shall return, within a reasonable time after such expiration or termination, all copies of information, even if modified (including but not limited to: the Service, documentation, data files, Confidential Information, etc.), unless required to comply with any applicable legal or accounting record obligation;
9. Limitation of liability
9.1. In no event shall Paatch be liable to the Customer for any indirect, punitive, special, consequential or similar damages (including damages for loss of profits, loss of revenue, loss of goodwill, loss or corruption of data, loss of customers and contracts, customer defection, cost of procurement of substitute products or services, and damage to reputation), whether arising out of negligence, breach of contract or statutory or other obligation, and claims of third parties. Each Party shall have the duty to mitigate damages. The exclusions and limitations of liability set forth in this section shall inure to the benefit of Paatch's affiliates and subsequent subcontractors to the same extent as such provisions inure to the benefit of Paatch.
9.2. To the maximum extent permitted by applicable law, Paatch's total liability with respect to the Test License under this Test License Agreement shall be limited to an amount of one thousand euros (EUR 1000) or the Test License Fee paid, whichever is less.
10. Miscellaneous
10.1 Entire Agreement - This Test License Agreement constitutes the entire agreement and understanding between the Parties with respect to its subject matter, and supersedes all prior oral or written agreements, representations or understandings between the Parties with respect to its subject matter. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Test License Agreement shall have any effect or be used to interpret, modify or restrict the express terms of this Test License Agreement.
10.2. Assignment - The Customer shall not assign or otherwise transfer any of its rights or obligations under this Test License Agreement without the prior written consent of Paatch. Paatch's consent shall be sought by registered mail stating the identity of the intended transferee. Subject to any restrictions on assignment set forth herein, the provisions of this Test License Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective heirs, legal representatives, successors or assigns.
10.3 Waiver - This Test License Agreement may be modified or amended only by written agreement signed by a duly authorized representative of each of the Parties hereto. This Test License Agreement may only be waived by a written document signed by the Party entitled to the benefits of such waiver. Any such waiver or consent shall be effective only in the specific situation and for the purposes assigned thereto, and shall not constitute a continuing waiver or consent.
10.4. Severability - If any provision of this Test License Agreement is held to be illegal, void, invalid or non-binding, in whole or in part, the remaining provisions shall remain in full force and effect notwithstanding. Clauses deemed illegal, invalid or non-binding shall be enforceable to the fullest extent permitted by applicable law. Each Party shall use its best efforts to negotiate immediately and in good faith a valid replacement clause having the same or similar economic effect.
10.5. Force Majeure - Neither Party shall be liable for non-performance or delay in performance of its obligations under this Test License Agreement as a result of or due to Force Majeure. In the event of Force Majeure, the Party shall inform the other Party at least within a reasonable period of time of the nature of the Force Majeure and of the fact that it wishes to avail itself of this clause. The Party shall, within a reasonable period of time, provide the other Party with proof of the existence of the Force Majeure event, the date on which the Force Majeure event occurred, and the date on which the Force Majeure event ended. In the event of Force Majeure, the Party is obliged to mitigate the damage and must do its best to reduce the consequences to a minimum. The Party may not invoke Force Majeure or the Force Majeure clause in the event of failure to comply with the above procedure.
10.6 Relationship between the Parties - The relationship between Paatch and the Customer is one of independent contractors. Neither Party is an agent of the other, and neither Party has any right to contract, expressly or impliedly, on behalf of the other Party without the other Party's prior written consent for purposes expressly related to the performance of this Test License Agreement.
10.7 Notices - Any notice to be given under this Test License Agreement shall be given in the first instance by electronic mail. Notices to the Customer shall be sent to the e-mail address stated on the Test Order (or, if no e-mail address is available, by post to the Customer's address). Notifications to Paatch will be sent by e-mail to hello@paat.ch. All notifications sent by e-mail will only be valid if expressly acknowledged by e-mail by the receiving Party. In the absence of an acknowledgement of receipt from Paatch within five (5) Business Days, all notices may be given in writing and served by personal delivery, registered mail or fax (confirmed by registered mail) addressed to the other Party at its address mentioned on the Test Order or at any other address indicated by one of the Parties hereto. All notices shall be deemed transmitted (i) in the case of personal delivery, at the time of actual delivery thereof to the receiving Party at the latter's address, (ii) in the case of transmission by overnight courier, on the Business Day following the day of delivery of the notice to the courier, or (iii) in the case of transmission by registered or certified mail, on the 5th Business Day following the day of dispatch.
10.8. Governing Law and Jurisdiction - This Test License Agreement and/or the Test Order shall be governed by and construed in accordance with the laws of France and the Parties hereto submit to the exclusive jurisdiction of the courts of Paris. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Test License Agreement and/or the Test Order.