These terms of service ("General Terms of Service"), together
with the attached Business Proposal ("Seiki Business Proposal"), form a binding agreement in relation to the relevant activities being performed (the "Agreement") between the customer whose details are indicated in Seiki Business Proposal ("Customer") and SEIKI (“SEIKI”) and each of SEIKI or Customer shall be referred to as a "Party" and collectively: the
In the event of any conflict or inconsistency between any provision contained in this document and any provision contained in the Seiki Business Proposal, the provisions of the Seiki Business Proposal shall prevail.
The Agreement governs Customer's use of the SEIKI MOBILITY INTELLIGENCE STUDIES ("SEIKI STUDIES") and the SEIKI DATA which SEIKI will provide or allow access to Customer under this Agreement and pursuant to the Seiki Business Proposal ("SEIKI DATA" and “SEIKI STUDIES” are collectively the "Services"), during the term of this Agreement, as indicated in the Seiki Business Proposal ("Term"). SEIKI STUDIES are covering post-campaign reportings and predictive
At any time during this Agreement, the Parties may mutually agree in writing by an amendment to the Agreement to modify the project specification or any part of the Business Proposal. This addendum will be part of the Agreement and ruled by theGeneral Terms of Service.
right of Use
SEIKI grants Customer a non-exclusive, fee-based, non-transferable, non-sublicensable, worldwide right to access the SEIKI MOBILITY INTELLIGENCE STUDIES and use the SEIKI DATA during the Term, solely for the purposes indicated in the respective Business Proposal ("Purposes") and in accordance with the terms and conditions set forth in the Agreement.
To the extent any certain portion of the SEIKI DATA made available to Customer under this Agreement, becomes temporarily or permanently unavailable, SEIKI will make commercially reasonable efforts to provide Customer with a substitute, and to the extent necessary, the Parties will discuss in good faith the need to amend this Agreement.
Customer may allow its employees, consultants, contractors and agents (“Customer Users”) access and use of the Services on Customer's behalf, provided that: (i) Customer Users are aware of and compliant with the terms, restrictions and obligations as set forth in the Agreement (ii) Customer Users are bound by a non-disclosure agreement that is no less restrictive than the confidentiality terms under the terms of this Agreement, and, (ii) Customer assumes full responsibility for all acts and omissions of Customer Users in relation to their use of the Services. SEIKI acknowledges that unless otherwise specifically stated in the Business Proposal, Customer may not
use the SEIKI DATA, on an anonymized basis, or under another company name, or aggregated with data from other sources (collectively “Derivative Data”),
In consideration for the right to use the Services under this Agreement, Customer will pay SEIKI Service fees in the amount and payment terms as stated in the Business Proposal. Except as otherwise expressly stated in the Business Proposal, Customer will be responsible for payment of any applicable taxes payable in connection with the Services, including without
limitation all sales, value added and other similar taxes but excluding taxes based on SEIKI’s net income.
limitation on Use
Unless expressly agreed otherwise under Business Proposal, Customer may not: (i) use or permit others, to use the Services in any manner not explicitly permitted under the terms of this Agreement; (ii) resell, distribute, rent, lease, license, transfer, lend, display or assign the Services; (iii) use the Services in connection with any individual credit, employment or insurance decisions, except as permitted under and in compliance with the applicable law, or to create or contribute to a "consumer report” as set forth under the applicable law; (iii) interfere with or disrupt the integrity or performance of the Services; (iv) attempt to gain unauthorized access to the Services or their related systems or networks, or systematically access the Service using 'bots', 'crawlers' or 'spiders'; (v) copy, frame or mirror the Services, except as specifically required for the Purposes; (vi) use the Services to develop or offer a similar Service to the Services; or (vii) use or permit others, to use, resell, distribute, rent, lease, license, transfer, lend or display Derivative Data. The above restrictions will survive as long as Customer retains SEIKI DATA OR STUDIES. Customer will promptly notify SEIKI upon becoming aware of any unauthorized use of the SEIKI DATA OR STUDIES by Customer or by Customer’s Users and will take all necessary actions to cease such unauthorized use. SEIKI may suspend the Services until such unauthorized use ceases.
lawful Use Only
Customer will not use or allow others to use the Services for any activity that constitutes or encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate applicable laws, rules and regulations including, without limitation, laws, rules and regulations
governing privacy, direct marketing, telemarketing, do-not-call registries, spam, export control, consumer protection, unfair competition, unfair or deceptive trade practices and false advertising.
The Parties expressly recognize that i. data provided by the Customer to SEIKI to perform the Services or ii. the SEIKI DATA AND STUDIES, are not personal data, in regard to the Regulation (EU) 2016/679 (General Data Protection Regulation). Each Party acknowledges that it has put in place all necessary measures to ensure that the data it transmits to the other Party has been properly anonymized if it was previously Personal Data. As a result of which the Regulation (EU) 2016/679 (General Data Protection Regulation) will not apply to them. Each Party also declares that it complies with the obligations arising from the applicable regulations on the protection of
personal data (RGPD, local applicable laws, etc.) for the data for which it is considered to be the data controller
term and Termination.
The Term is as set forth by the Parties in the Business Proposal.
At any time during the Term, each Party may immediately
terminate this Agreement, if the other Party breaches the
Agreement and does not cure the breach within fourteen (14) days a
after receiving a written notice by the first Party of said breach.
Upon termination or expiration of this Agreement, Customer will
immediately cease any use of the Services and will promptly and permanently delete all copies of the SEIKI DATA from all
Customer's information systems and databases, including back-
ups and disaster recovery sites signed by an authorized representative of Customer.
confidentiality and Security
Customer will maintain strict confidentiality of the Services. Customer will not make copies of the SEIKI DATA OR STUDIES, except as necessary to use the Services for the Purposes and under the terms herein and the and the respective Annexes. Customer Users may access the Services on a strict 'need to know' basis, as required and subject to the confidentiality terms herein. Customer will use appropriate technical and organizational measures to secure the SEIKI DATA and in a manner no less protective than the measures that Customer
uses to protect Customer's own similar assets, but in no event less than reasonable care and as required under the applicable law. Customer will not disclose any non-public information related to the Services, or have it disclosed, directly or indirectly, to any third party without SEIKI's prior written consent. If Customer is compelled by law to disclose the SEIKI DATA or any information related to the Services, Customer will promptly provide SEIKI a prior notice of such compelled disclosure (to the extent legally permitted) and will further provide SEIKI with reasonable assistance in obtaining an order to protect the Services from disclosure. Customer will disclose only the information related to the Services which is required by law to be disclosed and avoid disclosure of any excess data. The obligations of this Section 8 will survive termination or expiration of this Agreement and continue for three (3) years from the date of expiration or termination of the Agreement. Notwithstanding, Customer will maintain the confidentiality of any trade secret embodied in the Services for so long as it remains a trade secret. Unauthorized use or disclosure of
SEIKI's confidential information may result in an immediate and
irreparable injury to SEIKI or its affiliates, for which monetary
damages may not be adequate. If any use of Services violates or, in SEIKI’s reasonable discretion, is likely to violate the
Agreement, SEIKI will, in addition to any other rights and remedies available to SEIKI under the applicable law, will be
entitled to equitable relief, including temporary and permanent
injunctive relief and specific performance.
Each Party represents and warrants to the other Party that it has procured the necessary agreements, permission and rights of use, to execute, enter into, and perform such Party's obligations under the Agreement.
SEIKI represents and warrants that it has procured the necessary agreements, permission and rights of use, to execute, enter into, and perform SEIKI's obligations under the Agreement including the authority to permit Customer to use the Services under the terms herein. SEIKI further warrants to use commercially reasonable efforts to provide the Services diligently and efficiently. However, certain risks are nevertheless inherent to the transmission and provisions of the Services. SEIKI does not warrant that the Services will be provided in an uninterrupted or error-free manner. Customer acknowledges that the SEIKI DATA AND STUDIES is derived from SEIKI's partners and may be incomplete or out-of-date and may contain errors, omissions and inaccuracies. if the Services are held to, or SEIKI reasonably believes that the Services are likely to be held to infringe copyright, patent, trade secret, or other third-party right,SEIKI will have the right, at SEIKI's sole discretion, to: (i) substitute or modify the Services or any portion thereof so that it is non-infringing; or (ii) obtain a right, license or permission to continue providing the Services. Except for any warranty specifically granted herein, the Services are provided hereunder "as is" and "as available" without additional warranty of any kind.
Customer represents and warrants that Customer will restrict any use of the SEIKI DATA OR STUDIES only to permitted and lawful purposes and will abide by the limitations of use of the SEIKI DATA OR STUDIES – all pursuantto the terms of this Agreement.
no other warranties
Except for any warranty specifically granted under this Agreement, to the maximum extent permitted by law, the Parties, the Parties' affiliates and any person on a Party's behalf, expressly disclaim any and all warranties, conditions, representations and guarantees with respect to this Agreement, whether express or implied, arising by law, custom, prior oral or written statements, or otherwise, including, without limitation, any warranty of merchantability, accuracy, completeness correctness, fitness for a particular purpose or non-infringement. No representation or other affirmation of fact, including, without limitation, statements regarding capacity or suitability for use or performance of SEIKI STUDIES, Provider's Data and the usage thereof, whether made by a Party's employees, contractors, or otherwise, which is not contained in this Agreement, will be deemed to be a warranty by the Party for anypurpose, or give rise to any liability of the Party.
To the maximum extent permitted by applicable law, a Party, including a Party's employees, directors, shareholders, advisors, third party services providers and anyone acting on a Party's behalf, will not be liable for any, direct (except as provided hereinunder), indirect, incidental, consequential, special or punitive damages, or any loss of profit, or expenses of any kind, arising from, or in connection with this Agreement, whether such liability is asserted on the basis of contract, tort or otherwise. A Party's aggregated liability for direct damages only, as a result of gross negligence or willful misconduct by a Party, or anyone on a Party's behalf, and the other Party's sole remedy, caused in connection with the Business Proposal will not exceed the fees actually paid by Customer to SEIKI under that Business Proposal within the twelve months preceding the occurrence of theclaimed damage.
SEIKI retains sole ownership of all rights, title and interest related to the Services, and any modifications, enhancements and additional results related to the provision of Services and any ancillary services related thereto by SEIKI to Customer. This Agreement does not provide Customer any ownership rights in the Services. SEIKI DATA OR STUDIES shall remain the exclusive property of SEIKI and its assigns. In addition, any additional services provided by SEIKI may result in the provision of content (training materials, procedural documents, documented processes, etc.) protected by copyright laws. This content (the “Content”) also remains the sole property of SEIKI and its assigns. SEIKI DATA OR STUDIES may only be used under the terms and conditions specified in the Agreement, and in accordance with the scope of the rights acquired by the Customer within the framework of the Agreement. The right of use all or part of the SEIKI DATA OR STUDIES is granted solely for the exclusive internal needs of the Customer. They shall not be used for any other purpose. Except as set forth in this Agreement, no express or implied license or right of any kind is granted by this specific agreement to the Customer regarding the all or part of the SEIKI DATA OR STUDIES or the Marks, including, but not limited to, any right to know, use, produce, receive, reproduce, copy, market, sell, distribute, transfer, translate, modify, adapt, disassemble, decompile, or reverse engineer the SEIKI DATA OR STUDIES, or create derivative works based on the SEIKI DATA OR STUDIES or any portions thereof, or obtain possession of any source code or other technical material relating to the SEIKI DATA OR STUDIES. SEIKI remind to the Customer that the SEIKI DATA and SEIKI STUDIES , are protected by the articles L341-1 to L343-7 of French Intellectual Property Code (Code de la Propriété Intellectuelle). In case of violation of this Agreement, SEIKI reserves the right to exercise any and all rights conferred upon it by the specific legislation mentioned above, in particularthe right to take legal action in civil courts.
A/ Grant of Non-Exclusive right of using the Services
In order for the Customer to benefit from the Agreement and the
additional services provided by SEIKI, SEIKI grants to the
Customer, for the duration of the Agreement, a non-exclusive,
non-assignable and non-transferable license to access the SEIKI DATA AND STUDIES and to use the additional services provided anywhere in the world.
B/ Reservation of rights. All rights not expressly granted to the Customer, in this Agreement, are prohibited. The Customer is therefore prohibited from:
reproducing in whole or in part the Services, in any form
and on any type of medium whatsoever;
translate, adapt, modify or arrange the Services ;
transfer the license to use the Services to a third party, in
use the Services to provide services on behalf of third
parties, including entities of the group to which the
Customer belongs, in any form whatsoever;
modify, alter, delete, circumvent or hack in any way the
security systems that allow access to the Services that
SEIKI may have provided;
disable any usage control and license enforcement
features of the Services that SEIKI may have provided;
distribute or market the Services in any way whatsoever,
whether free of charge or for a fee.
The Customer undertakes not to alter any of the mentions of
ownership and the trademarks or distinctive signs that may appear
on the Services in the way it operates the Services or accesses the
Services from its information system. In general, the Customer
undertakes not to alter the property mentions and the brands or
distinctive signs that may appear on the Services.The Parties agree
to consider all the behaviors listed above as a violation of the
Agreement which permit SEIKI to terminate this Agreement
without prejudice of any engagement of the Customer’s
responsibility. To the fullest extent permitted by this Agreement,
Customer may offer access to the Servicesto Authorized Users,
who shall act on the Services under the sole and absolute
responsibility of Customer. The Customer acknowledges that
SEIKI may monitor compliance with the conditions and
restrictions of use remotely or by any other means, including via
the audit provided for in this Agreement.
C/ Trademarks. Each Party acknowledges that the other party and/or its licensors are the owners of all right, title and interest in and to its trademarks, logos and other distinctive signs (hereinafter referred to as "the Marks"), and each party will not adopt to use any of the Marks of the other party in any manner whatsoever, except asexpressly provided in this Agreement.
Per SEIKI's reasonable requests and on Customer's own initiative, Customer will provide SEIKI from time to time with feedbacks and notices about issues, discrepancies and ideas related to the Services (collectively: "Feedback"), which come to Customer's attention during the term of this Agreement. Customer hereby assigns to SEIKI all right, title and interest to the Feedback
and all proprietary rights therein including without limitation any
and all intellectual property rights.
Prior and as a condition for commencing a legal action and except in cases of manifest urgency or where circumstances make such an attempt impossible, a Party will create an escalation process and provide a written copy to the other Party within five (5) business days of any dispute arising out of or relating to this Agreement. The escalation process will be used to resolve any and all issues, including but not limited to legal issues and technical problems. The Parties will communicate regularly about the issues as set forth in their respective escalation process documentation and attempt in good faith to resolve any dispute arising out of or relating to this Agreement, first as set forth above in the escalation process and next by negotiation between higher-level executives with authority to settle the controversy. Any Party may give the other Party a written notice of any dispute not resolved in the escalation process. Within two (2) business days after delivery of the notice, the receiving Party will submit to the other a written response. The notice and the response will include (a) a statement of each Party’s position and a summary of arguments supporting that position and (b) the name and title of the executive who will represent that Party. Within five (5) business days after delivery of the disputing Party’s notice, the executives of both Parties will meet at a mutually acceptable time and place, including telephonically, and thereafter as often as they reasonably deem necessary, to attempt to resolve the dispute. All reasonable requests for information made by one Party to the other will be honored. All negotiations pursuant to this clause are confidential and will be treated as compromise and settlement negotiations for purposes of applicable rules of evidence.
governing law and jurisdiction
This Agreement and any dispute arising out of or related thereto or to the Services are governed solely by the laws of France, without giving effect to any conflicts of law principles which would result in the application of the laws of jurisdiction other than France. Any dispute, claim or controversy arising out of, connected with or relating to the Agreement, the Services or any use related thereto, will be broughtexclusively in the courts located in Paris, France.
Customer will make good-faith efforts at no cost and in coordination with SEIKI, to introduce SEIKI's services to other companies who are willing to work with Customer.
SEIKI may publicly indicate that Customer is as a SEIKI customer, including on SEIKI's website, marketing material and other media and may use Customer's name and logo for that purpose. Furthermore, the Parties will issue a joint press release or case studies, and similar promotional communications announcing the signing of this Agreement and engagement following the Effective Date. The Parties will mutually agree on the exact
content of such an announcement and will work in good faith to support such a press release.
The Agreement including Business Proposal constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior oral or written representations or agreements. No terms issued by Customer or appearing on any other document provided by Customer including without limitation any invoice, order, purchase order or acknowledgment form will have any force or effect or otherwise be binding on the Parties. No amendment to this Agreement will be binding upon either Party unless it is in writing and is dulysigned by both Parties.
Any notice required or permitted by the Agreement will be in writing and will be sent by prepaid, registered or certified mail, return receipt requested, or by reputable overnight courier addressed to the other Party at the address shown in the Agreement or at such other address for which such Party gives notice hereunder. Such notice will be deemed to have been given whendelivered.
If any provision of the Agreement is held invalid or unenforceable, that provision will be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties and the remaining provisions will remain in full force and effect. The parties agree to renegotiate in good faith any term held invalid and to be bound by the mutually agreed substitute provision.
The failure of either Party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other Party of any of the provisions of this Agreement, will in no way be construed as a present or future waiver of such provisions, nor in any way affect the validity of either Party to enforce each and every such provision thereafter.
Each Party may assign to a third party its rights and obligations under this Agreement upon a merger with or acquisition of all or substantially all of the Party's assets by that third party, provided that the third party undertakes the assigning Party's entire rights and obligations under this Agreement. All other assignments of rights and obligations under this Agreement and under the respective Annexes are null and void without the prior written consent of the other Party.