Legal

Contrat Trackforce SaaS

Mis à jour le 15 Avril 2023

GENERAL TERMS OF USE
BY ACCEPTING THIS AGREEMENT, SIGNING A PURCHASE ORDER IN WHICH THESE GENERAL TERMS OF USE ARE REFERENCED, OR BY ACCESSING OR USING ANY TRACKFORCE VALIANT SERVICE, THE CLIENT AGREES TO ALL THE TERMS OF THIS AGREEMENT. IF THE PERSON ACCEPTING THIS AGREEMENT IS DOING SO ON BEHALF OF A COMPANY OR OTHER ENTITY, THAT PERSON REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND THAT ENTITY AND ITS AFFILIATES TO THESE GENERAL TERMS OF USE. THE CLIENT AGREES THAT THIS AGREEMENT IS AS ENFORCEABLE AS ANY WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE CLIENT.

These General Terms of Use were last updated on April 15, 2023.

General Terms of Sale September 1, 2022
General Terms of Sale May 12, 2021
General Terms of Sale May 1, 2018

The Client agrees that Trackforce Valiant may update these General Terms of Use at any time. If Trackforce Valiant modifies these General Terms of Use, it will make commercially reasonable efforts to inform the Client at the Client’s registered email address, as provided in Article 22 (Notices), at least thirty (30) days before the changes take effect. Unless the Client objects in writing, the Client will be deemed to have accepted the changes on the effective date of the updated General Terms of Use. Continued use of the Trackforce Valiant Services will be considered acceptance of the updated General Terms of Use by the Client. If the Client does not agree to be bound by the updated General Terms of Use, the Client’s sole remedy is to terminate the Agreement, which will take effect immediately. If the Client terminates under this provision, they will not be entitled to any refund of Fees already paid, whether prorated or otherwise.

1. DEFINITIONS

In addition to all other definitions that may be found in a Purchase Order or in these General Terms of Use—which will be recognizable because they will be in bold and in quotation marks—the following definitions apply:

“API.” The Trackforce Valiant application programming interface through which the Client can access the Services.
“Mobile Application.” All iOS or Android mobile applications made available by Trackforce Valiant for use with the Services.
“Purchase Order.” A written document stating it is a “purchase order” that specifies the Services and Professional Services to be provided and the Fees to be paid, incorporates the terms of these General Terms of Use, and is mutually agreed to and duly signed by the parties, and binds the parties.
“Client.” The client identified on the Purchase Order.
“Agreement.” These General Terms of Use (including all external terms or policies incorporated by reference) together with each Purchase Order entered into between the parties, as amended from time to time.
“Client Data.” The data and other information that the Client (or any of its Authorized Users) uploads, transmits, or enters into the Services by any means.
“Intellectual Property Rights.”
(a) All proprietary rights provided by:
(i) patent law;
(ii) copyright law (including moral rights);
(iii) trademark law;
(iv) industrial design law;
(v) the law on the topography of integrated circuits or semiconductor chips; or
(vi) any other statutory or common law applicable to the Agreement, including trade secrets;
(b) all registrations, applications, licenses, sublicenses, franchises, agreements, or any other proof of a right in any of the above; and
(c) all licenses and waivers and all benefits of waivers of intellectual property rights set forth in (a) and (b) above, all future income and proceeds from the intellectual property rights set forth in (a) and (b) above, as well as all rights to damages and profits due to the infringement or violation of any intellectual property rights set forth in (a) and (b) above.
“Third-Party Providers.” Third parties that Trackforce Valiant may use or make available that may offer services, software, and/or equipment related or connected to the Services, or that operate in conjunction with the Services.
“Products.” Any type of equipment (in the broadest sense of the term) including accessories, software, and related ancillary services, and/or any software offered for sale by Trackforce Valiant.
“Personal Information.” Information about an identifiable individual.
“Services.” The services that Trackforce Valiant makes available to the Client and its Authorized Users via the Sites, the API, or other means, as specified in the applicable Purchase Order.
“Professional Services.” Any consulting, implementation, training, or other professional service made available by Trackforce Valiant to the Client as described in a Purchase Order.
“Sites.” Websites owned and/or used by Trackforce Valiant to provide the Services.

“Affiliate.” With respect to a party, any parent or subsidiary company, and any company or other business entity controlling, controlled by, or under common control with that party; where “control” and its derivatives mean the legal or beneficial ownership, directly or indirectly, of 50% or more of the shares (or other equity interest, if not a corporation) of such entity that normally have voting rights, or actual control through the exercise of rights under an agreement.

“Associated Systems.” Any computer, web browser, operating system, firewall, email server, LDAP server, portal, network, third-party software, Internet connection, and any other equipment or software that connects to or affects the Services.

“Trackforce Valiant.” The Trackforce Valiant company described in the “Contracting Entity, Notices, Governing Law, and Jurisdiction” section below.

“Trackforce Valiant Technology.” The Services, the Trackforce Valiant software powering the Services, all deliverables, all related and underlying technology and documentation, and all derivative works, modifications, or improvements to any of the foregoing.

“Authorized Users.” Individually identifiable persons consisting of the Client’s employees, third-party consultants, outsourcers, subcontractors, and other service providers authorized by the Client to access and use, as applicable, the Services and/or the Mobile Application.

2. SERVICES AND PROFESSIONAL SERVICES; RESTRICTIONS

2.1 Services. Subject to the Client’s compliance with the terms of the Agreement, Trackforce Valiant will make the Services and the Mobile Application available to the Client and its Authorized Users during the Term in accordance with the terms set out in the Agreement. The Client acknowledges that certain features and/or functionalities may only be available when accessing the Services through the API.

2.2 Changes to the Services. Trackforce Valiant may, at its sole discretion, modify the Services or the Mobile Application, provided such modifications do not materially reduce the functionalities provided by the Services and the Mobile Application. The Client is required to accept all patches, bug fixes, and updates made by or on behalf of Trackforce Valiant to the Services and the Mobile Application.

2.3 Suspension of Services. Trackforce Valiant may, at its sole discretion, suspend the Client’s and Authorized Users’ access to or use of the Services or the Mobile Application, or any component thereof, at any time and with or without notice:
a) for scheduled maintenance;
b) if the Client or any Authorized User violates any provision of this Agreement; or
c) to address any urgent security issue.
Trackforce Valiant will not be liable to the Client or any third party for exercising this right.

2.4 Professional Services. Trackforce Valiant will use reasonable efforts to provide the Professional Services described in a Purchase Order in accordance with the applicable requirements set out in that Purchase Order, if any.

2.5 Restrictions on Use of Services. The Client shall not, and shall not permit Authorized Users or others to:
a) sublicense, sell, rent, lease, lend, or distribute the Services or the Mobile Application, or any related Intellectual Property Rights, or otherwise make the Services or the Mobile Application available to third parties, except as expressly provided in the Agreement;
b) unless expressly authorized by Trackforce Valiant, use the Services or the Mobile Application to facilitate or provide timesharing, a service bureau, or other commercial exploitation of the Services or the Mobile Application;
c) use or access the Services or the Mobile Application in violation of any applicable law or Intellectual Property Rights; or
d) use the Services or the Mobile Application in a way that threatens the security or functionality of the Services or the Mobile Application.

2.6 Restrictions on Client Data. The Client shall not, and shall not permit Authorized Users or others to, use the Services or the Mobile Application to create, collect, transmit, store, use, or process Client Data that:
a) contains computer viruses, worms, malicious code, or software intended to damage or alter a computer system or data;
b) the Client has no lawful right to create, collect, transmit, store, use, or process;
c) is subject to specific regulations or laws imposing heightened obligations regarding the processing of such information, or any other information whose unauthorized use or disclosure could cause material or serious harm or impact Trackforce Valiant, its Third-Party Providers, or other third parties; or
d) violates applicable laws, or infringes, misappropriates, or otherwise violates the Intellectual Property Rights or other rights of any third party (including any moral right, privacy right, or image right).

2.7 General Restrictions. The Client shall not, and shall not permit others to:
a) modify the Services or the Mobile Application;
b) reverse-engineer, decompile, or disassemble the Services or the Mobile Application, or otherwise attempt to obtain the source code or non-public APIs of the Services or the Mobile Application, except to the extent expressly permitted by applicable law and subject to clause 2.8 below;
c) remove or obscure any proprietary notices or labels on the Services or the Mobile Application, including trademarks, copyrights, trademarks, and patents or pending patents, except as otherwise authorized by Trackforce Valiant;
d) use the Services or the Mobile Application to create a competing product or service;
e) conduct vulnerability testing, penetration testing, or similar tests on the Services or the Mobile Application, except as otherwise authorized by Trackforce Valiant; or
f) use the Services, Professional Services, or the Mobile Application for purposes or in any manner not expressly authorized in the Agreement.

2.8 Notwithstanding clause 2.7(b) above, the Client is permitted to interface the Software with other programs and/or different software for interoperability purposes for its own needs, in accordance with the French Intellectual Property Code. However, before exercising the rights provided under Article 122-6-1 of the Intellectual Property Code relating to the interoperability of the Solution, the Client must request from Trackforce Valiant all reasonably necessary information to ensure interoperability, and may only exercise this right if Trackforce Valiant refuses to provide such information or fails to respond within a reasonable time, and provided that such information is not used by the Client to provide services to a third party.
If providing such information requires intervention by Trackforce Valiant, or if Trackforce Valiant must develop specific features to enable such interoperability, this will be subject to payment of applicable fees, as agreed between the Parties.
For clarity, the provision of information by Trackforce Valiant will not include the source code of any service.

3 ACKNOWLEDGEMENTS AND OBLIGATIONS OF THE CLIENT REGARDING THE SERVICES

3.1 The Services do not replace the Client’s judgment and experience. The Client acknowledges that the Services are provided solely to support the security services provided by the Client and are not intended to replace the Client’s independent judgment on how the security services should be performed. The Services are not intended to be, and must not be used as, substitutes for emergency interventions. The Client assumes all responsibilities, obligations, and expertise regarding:
a) the selection of the Services (including the choice to access the Services via the API) in order to achieve the desired results; and
b) any decision made based on the results produced by the Services.

The Client understands and agrees that neither Trackforce Valiant nor any third-party Provider (if applicable) provides legal, accounting, tax, or other professional advice, whether as a service or through the Services, and that the Client does not rely on Trackforce Valiant or any third-party Provider for any advice or guidance regarding laws and regulations. The Client must review all calculations and determinations made using the Services to ensure their accuracy. If legal, accounting, tax, or other expertise is required, the Client will seek the services of a competent professional. To the extent permitted by law, the Client must indemnify and hold Trackforce Valiant harmless from claims and demands from its employees or former employees arising from the Client’s use of the Services.

3.2 Access to the Services. The Services will be provided in a manner that allows Authorized Users to access them in accordance with the applicable requirements specified in the relevant Order Form. Trackforce Valiant will authorize access to the Services only through the Sites or via the API or other means using usernames and passwords assigned by Trackforce Valiant, and the Client acknowledges and agrees not to transfer these usernames and passwords to anyone who is not authorized to access the Services. The Client may also assign usernames and passwords to Authorized Users in accordance with Article 3.8 below. The Client must change all passwords used to access the Services at regular intervals. If the Client learns that an unauthorized third party has obtained a password, the Client must promptly notify Trackforce Valiant and quickly change the password. The Client will terminate access for former users of the Services.

3.3 Client Data. The Client agrees that it is solely responsible for entering its Client Data into the Services. The Client may purchase Trackforce Valiant’s professional services to assist with entering Client Data. The Client also agrees that it is responsible for maintaining the Client Data it has provided. The Client agrees that it has collected, and will retain and process, all Client Data in compliance with all applicable privacy and data protection laws, rules, and regulations. The Client is solely responsible for:
a) verifying the accuracy of Client Data processed using the Services; and
b) carrying out all normal processes and procedures related to the Services, such as end-of-period processing, imports, exports, and file transfers.

3.4 Third-party Technology. The Client acknowledges that the Services and Mobile Application require the use and integration of certain third-party technologies, including Google Maps. The Client will accept and comply with the license terms of such third-party technology, if applicable. Without limiting the generality of the foregoing, the Client’s use of Google Maps within the Services or independently is subject to Google Maps/Google Earth’s current additional terms of service available at https://maps.google.com/help/terms_maps.html and Google’s privacy policy available at https://policies.google.com/privacy, both of which are incorporated herein by reference. Licensed third-party technology may include APIs provided by third parties that enable integrations between the Services and third-party software used by the Client to manage its operations, and the Client acknowledges and agrees to such integrations, if applicable.

3.5 Associated Systems. The Client agrees and accepts that it is responsible for separately obtaining or licensing the desktop computers, mobile phones, and Associated Systems necessary or desirable to access the Services and Mobile Application. The Client is solely responsible for managing and configuring all Associated Systems to ensure they operate correctly and are up to date as required to use the latest versions of the Services and Mobile Application. Trackforce Valiant will not be responsible for any monetary or other damages resulting from the Services or Mobile Application not working or having reduced functionality due to the Client’s failure to update or support the Associated Systems. Trackforce Valiant’s technical support does not apply to Associated Systems or Service issues caused by Associated Systems. If Trackforce Valiant identifies that the root cause of a problem is due to changes made by the Client to the Services or behavior in an Associated System, it will inform the Client and request approval to provide additional support (if applicable). If the Client approves, the additional time spent by Trackforce Valiant after such approval will be billed to the Client on a time-and-materials basis at the then-current rates.

3.6 Security. The Client acknowledges and agrees that it will be solely responsible for acquiring and maintaining the technology and procedures to secure its Internet connection. Trackforce Valiant will implement reasonable security procedures consistent with prevailing industry standards to protect Client Data against unauthorized access (“Security Standards”). Provided that Trackforce Valiant complies with the Security Standards, the parties agree that Trackforce Valiant will not be liable in situations where:
a) third parties access data or transmissions by illegal or unlawful means; or
b) data or transmissions are accessible through exploitation of security vulnerabilities, weaknesses, or defects unknown to Trackforce Valiant at that time or any other incident beyond its control. Trackforce Valiant will promptly notify the Client of any unauthorized access to Client Data upon discovery and will use diligent efforts to promptly remedy any security breach that allowed such unauthorized access.

3.7 Technical Contact. The Client acknowledges that it will designate one of its employees as the primary contact to communicate with Trackforce Valiant regarding technical issues under the Agreement. The Client may change its technical contact from time to time by written notice to Trackforce Valiant.

3.8 User Accounts. At the Client’s request, and unless otherwise indicated in the Order Form, Trackforce Valiant will issue a superintendent account and one or more administrator accounts (collectively, “Administrator Accounts”) to the Client, enabling it to create end-user accounts (“Client User Accounts”) for employees and independent contractors whom the Client wishes to grant access to the Services via the Mobile Application and to use them (each such person, and any person with an Administrator Account, is an “Authorized User”). The Client will ensure that Authorized Users use the Services only through their Client User Account. The Client will not permit any Authorized User to share a Client User Account with another person.

3.9 Responsibility for Authorized Users. The Client is responsible for identifying and authenticating all Authorized Users, ensuring compliance by Authorized Users with this Agreement, and for the use or misuse of the Services or Mobile Application by Authorized Users. The Client will promptly notify and indemnify Trackforce Valiant of any actual or suspected unauthorized use of the Services or Mobile Application, including by anyone who is not an Authorized User. Trackforce Valiant reserves the right to suspend, disable, or replace any Administrator Account or Client User Account if it determines that such account may have been used for unauthorized purposes.

4. TECHNICAL SUPPORT AND BACKUPS

4.1 Technical Support. Trackforce Valiant will provide technical support via the following email address: [email protected]. If additional Professional Services are required for the proper use and operation of the Services, or if other Professional Services are requested by the Client, such Services will be provided in accordance with a new Purchase Order entered into between the parties. Unless otherwise specified in the applicable Purchase Order, Trackforce Valiant will provide such Professional Services on a time and materials (“T&M”) basis as follows:
(a) The Client will pay Trackforce Valiant for all time spent performing such Professional Services (including travel time), plus materials, taxes, and reimbursable expenses; and
(b) the rates for such Professional Services will be Trackforce Valiant’s then-current standard rates when such Services are provided, as specified in the Purchase Order.
Any monetary amount indicated in a T&M services estimate will be for estimation purposes only, for the Client’s budgeting and Trackforce Valiant’s resource planning. If the estimate is exceeded, Trackforce Valiant will cooperate with the Client to continue providing Professional Services on a T&M basis. Trackforce Valiant will invoice the Client monthly for T&M Professional Services. All such fees will be payable upon receipt of the invoice by the Client. Trackforce Valiant reserves the right to require non-refundable fees and/or a deposit before starting such Professional Services.

4.2 Backups. At no additional cost to the Client, Trackforce Valiant will perform daily incremental backups (each, a “Daily Backup”) of Client Data archived with Trackforce Valiant Technology. Daily Backups are encrypted and stored offsite in multiple secure facilities designed to store and maintain backups in case of an emergency. Daily Backups are deleted after ten (10) days.

5. DELIVERY, INSTALLATION, AND ACCEPTANCE OF PRODUCTS

5.1 Products will be delivered on the date and to the location agreed upon directly between the Client and Trackforce Valiant, as stated in a Purchase Order.

5.2 Upon physical receipt of the Products, the Client must verify that they have not been damaged during transport (including packaging). If damage has occurred, the Client must make all necessary claims with the carrier within the legal timeframe and immediately notify Trackforce Valiant by registered letter with acknowledgment of receipt. Furthermore, the Client agrees to provide Trackforce Valiant, upon first request, with a copy of each delivery slip.

5.3 Delivery and transfer of risk for the Products occur upon physical handover of the Products at the Client’s address specified in the Purchase Order. Transfer of ownership of the Products to the Client occurs only once Trackforce Valiant receives full payment for the Product.

5.4 All incidental costs necessary for commissioning or using the Products are the responsibility of the Client. These include, without limitation, transportation, delivery, handling, installation, and connection costs.

5.5 Products will be installed into the Client’s systems by the Client. Trackforce Valiant declines any responsibility in this regard. The Client must take all necessary steps in a timely manner to ensure the proper functioning of the Products as specified by Trackforce Valiant.

5.6 In the event of non-conformity or malfunction of the Products, it is the Client’s responsibility to promptly notify Trackforce Valiant, and in any case no later than 15 calendar days after delivery. The Parties will work in good faith to resolve the issue.

6. TERM AND TERMINATION OF THE AGREEMENT

6.1 Term. The term of the Agreement will begin on the Effective Date indicated in the Purchase Order and will continue for the period indicated in the Purchase Order (the “Initial Term”). The Initial Term will automatically renew for an additional period, the length of which is specified in the Purchase Order (the “Renewal Period”), unless either party notifies the other in writing, preferably by email, at least sixty (60) days before the expiration of the current term of its intention not to renew, or within any other period specified in the Purchase Order. Such notice must include the quote/order number, quantity, type of service to be terminated, and the device IMEI in the case of a mobile license. If the information provided is insufficient to identify the plan(s)/proposal(s) to be terminated, Trackforce Valiant will cease billing for the least expensive license(s) among all plans/proposals that are no longer within the first 12 months of commitment. The Initial Term or any Renewal Period is referred to in this Agreement as a “Term.”

6.2 Termination for Cause. If either party fails to comply with any material terms of the Agreement (including, in the case of the Client, non-payment of Fees or other amounts payable to Trackforce Valiant under the Agreement when due), the non-defaulting party may terminate the Agreement (including all or part of the Purchase Orders) by providing fifteen (15) days’ written notice to the defaulting party specifying such default, unless all specified defaults are cured within that notice period.

6.3 Effect of Termination. For clarity, termination for any reason ends both the General Terms of Use and any ongoing Purchase Orders. Upon termination of the Agreement:
(a) the Client will immediately cease all access to, receipt of, and use of the Services and the Mobile Application under any ongoing Purchase Order;
(b) all rights and licenses granted to the Client under the Agreement are immediately revoked;
(c) within 30 days of termination, the Client will return all Trackforce Valiant materials and all copies thereof in its possession or control to Trackforce Valiant, or, under Trackforce Valiant’s direction, destroy such materials; and
(d) each party will return or destroy the other party’s Confidential Information in accordance with this Agreement.

6.4 Survival. All provisions of these General Terms of Use that by their nature should survive termination of the Agreement will survive, including, without limitation, provisions regarding intellectual property, disclaimers, indemnification, and limitations of liability.

6.5 Transition Services. Upon termination of the Agreement, the Client will no longer have the right to access or use the Services. Within ninety (90) days of termination, Trackforce Valiant, at the Client’s written request and discretion, will either return to the Client, delete, or otherwise render inaccessible the Client Data contained in the hardware or systems used by Trackforce Valiant to provide the Services. If the Client does not make such a request within this ninety (90) day period, the Client agrees that Trackforce Valiant may delete all Client Data without liability. Furthermore, Trackforce Valiant will provide additional transition services as mutually agreed upon by Trackforce Valiant and the Client in a statement of work to be appended to a Purchase Order.

7 FEES
7.1 Fees. The Client shall pay Trackforce Valiant the fees and charges specified in each Order Form (“Fees”) in accordance with the payment terms set forth therein. If the Client submits a purchase order when entering into an Order Form, then:
a) any such purchase order submitted by the Client is intended solely for the Client’s internal purposes, and Trackforce Valiant rejects, and shall be deemed to have rejected, all terms of such purchase order to the extent they add to or conflict in any way with this Agreement or the applicable Order Form, and such additional or conflicting terms shall have no effect;
b) Trackforce Valiant’s right to collect the Fees due hereunder shall not be limited;
c) such Fees shall be the total Fees due under the applicable Order Form; and
d) upon request, Trackforce Valiant will reference the purchase order number on its invoices (for administrative purposes only), provided that the Client supplies the purchase order at least ten (10) business days prior to the invoice date.

The Fees may include subscription fees for the Services as well as usage fees, which will be specified in the Order Form. Unless otherwise stated in the applicable Order Form, all Fees are non-refundable and Trackforce Valiant shall have no obligation to issue refunds or credits for unused Services, partial months, or in connection with a downgrade, cancellation, termination, or otherwise.

7.2 Automatic Annual Fee Increase. On each anniversary of the Agreement following the Effective Date specified in the Order Form, the Fees charged for the Services and Professional Services under the then-current Order Form will automatically increase by five percent (5%) or in accordance with the U.S. or EU CPI increase, as applicable, whichever is greater.

7.3 Taxes; Currency. The Fees and other amounts payable by the Client set out in the Order Form in accordance with the Agreement do not include sales, use, value-added, or other applicable taxes or duties, which will be added at the time of payment, and for which the Client is solely responsible. The currency of the Fees will be specified in the applicable Order Form.

7.4 Billing and Payment. Trackforce Valiant will prepare and send to the Client, at the contact address then on file with Trackforce Valiant, an invoice for all Fees that have become due. Unless expressly stated otherwise in an invoice or in the applicable Order Form:
a) all invoiced amounts are due upon receipt of the invoice; and
b) all payments shall be made by electronic funds transfer in the manner specified in the Order Form (e.g., by direct debit or wire transfer).

If the Client provides credit card information, the Client authorizes Trackforce Valiant to charge such credit card for all Services listed in the Order Form for the Initial Term and any Renewal Term. Such charges will be billed in advance, either annually or according to any different billing frequency set forth in the applicable Order Form. If the Order Form specifies payment by a method other than credit card, Trackforce Valiant will invoice the Client in advance and otherwise in accordance with the corresponding Order Form.

7.5 Additional Users. If the Client’s use of the Services exceeds the number of Authorized Users specified in an Order Form, or if the Client’s use of the Services otherwise requires the payment of additional Fees (in accordance with the terms of the Agreement), the Client will be billed for such usage and shall pay the additional Fees in accordance with the Agreement. Alternatively, the Client may choose to purchase rights for additional Authorized Users to access the Services by entering into a new Order Form with Trackforce Valiant. Any new Order Form will coincide with the then-current Order Form.

7.6 Expenses. All additional expenses incurred by Trackforce Valiant in providing the Services on behalf of the Client, and for which Trackforce Valiant seeks reimbursement, shall be pre-approved in writing by the Client.

7.7 Disputed Charges. If the Client believes that Trackforce Valiant has incorrectly charged or invoiced the Client, the Client must contact Trackforce Valiant no later than ninety (90) days after being billed by Trackforce Valiant or after receiving the invoice in which the error or issue appeared, in order to request an adjustment or credit. In the event of a dispute, the Client shall pay all undisputed amounts in accordance with these payment terms, and the parties shall discuss the disputed amounts in good faith to resolve the matter.

7.8 No Withholding or Setoff; Late Payment. The Client may not withhold or set off amounts due under the Agreement. Any late payment shall be subject to a €40 collection fee per invoice, as provided by the Commercial Code, and shall accrue interest at a rate equal to three times the legal interest rate plus all collection costs, until paid in full.

7.9 Audit Right. Upon ten (10) days’ prior written notice and during the Client’s normal business hours, Trackforce Valiant may inspect, directly or through a third party, the Client’s records relating to the Client’s use of the Services to verify compliance with the Agreement. The Client shall pay Trackforce Valiant any underpaid Fees within thirty (30) days following issuance of the audit results.

7.10 Suspension of Services for Non-Payment. In the event of unpaid Fees by the Client, Trackforce Valiant reserves the right to suspend access to and use of the Services and the Mobile Application, including services with lone worker protection modules, in accordance with this Agreement. In the event of non-payment of Fees, Trackforce Valiant will provide ten (10) days’ notice to the Client to cure the non-payment. If non-payment is not cured within such ten (10) day period, Trackforce Valiant reserves the right to automatically suspend the Client’s access to and use of the Services and Mobile Application without further notice to the Client. Services will be reinstated within 2 business days following receipt of funds in our bank account.

8 PROPRIETARY RIGHTS
8.1 Trackforce Valiant Ownership. Trackforce Valiant (or its licensors, if applicable) retains all rights, title, and interest (including Intellectual Property Rights) in and to:
a) the Services, the Mobile Application, the Sites (if owned by Trackforce Valiant), and Trackforce Valiant Technology (including all data, content, and other information and material contained therein other than Client Data);
b) any other items provided or made available by Trackforce Valiant under the Agreement; and
c) all fixes, bug corrections, enhancements, adaptations, translations, derivative works, modifications, or new versions of the items referred to in a) and b) above.

The Client further agrees that the Services are offered as an online hosted solution and that the Client has no right to obtain a copy of the underlying computer code for the Services. There are no licenses for the Services, whether implied or otherwise, and only the right to access the Services is granted to the Client under the Agreement.

8.2 Client Ownership and Licenses. The Client retains all rights, title, and interest (including Intellectual Property Rights) in and to the Client Data and all branding elements (including, without limitation, the Client’s logos) used with the Client’s authorization for inclusion in the Services (“Client Branding”). The Client grants Trackforce Valiant a non-exclusive, worldwide, royalty-free, irrevocable, fully paid-up right to use, process, and transmit the Client Data and Client Branding for the purpose of providing the Services.

Trackforce Valiant may remotely monitor the Client’s and its Authorized Users’ use of the Services and collect and analyze metadata and other information relating to the provision, use, and performance of the Services with respect to the Client and its Authorized Users (“Metadata”), and may create anonymous and aggregated versions of the Client Data (i.e., where specific individuals are not identified, “Non-Identifiable Client Data”).

During and after the term of the Agreement, the Client grants Trackforce Valiant a non-exclusive, perpetual, worldwide, royalty-free, irrevocable, fully paid-up right to:
(a) use, process, and transmit Metadata and Non-Identifiable Client Data to improve the Services and for other development, diagnostic, and corrective purposes in connection with the Services and other Trackforce Valiant offerings; and
(b) disclose Metadata and Non-Identifiable Client Data in connection with its business activities.

8.3 Feedback. If the Client chooses to provide Trackforce Valiant (by any means) with suggestions for improvements to any Trackforce Valiant Services or Products, or to Trackforce Valiant’s activities in general (“Feedback”), Trackforce Valiant shall own all rights, title, and interest in and to such Feedback and shall be entitled to use the Feedback without restriction. The Client hereby irrevocably assigns all rights, title, and interest in the Feedback to Trackforce Valiant and agrees to provide Trackforce Valiant with any assistance it may require to document, perfect, and maintain Trackforce Valiant’s rights in the Feedback. The Client acknowledges and agrees that by providing Feedback to Trackforce Valiant, it is not entitled to any compensation or reimbursement of any kind from Trackforce Valiant under any circumstances.

9 LICENSE FOR MOBILE APPLICATION AND RELATED CLAUSES
9.1 License for Mobile Application. The Mobile Application is licensed, not sold. Trackforce Valiant grants the Client and its Authorized Users, during the Term, a non-exclusive, non-transferable, non-sublicensable, limited right and license to download, install, and use the Mobile Application on a portable device solely and exclusively for use under these General Terms of Use, and as permitted by the usage rules set forth in the Apple Media Services Terms for the Mobile Application for iOS or the Google Play Terms of Service for the Mobile Application for Android.

9.2 iOS Mobile Application. If the Mobile Application is provided to the Client or Authorized Users through Apple Inc.’s App Store (Apple Inc. and all its affiliated companies, “Apple”), the following terms apply in addition to all other terms of these General Terms of Use regarding the Mobile Application:
a) The parties acknowledge that these General Terms of Use are concluded between the Client and Trackforce Valiant, and not with Apple. Responsibility for the Mobile Application and its content is governed by these General Terms of Use;
b) The Client or any Authorized User may only use the Mobile Application on an iPhone or iPad they own or control;
c) The Client and Trackforce Valiant acknowledge that Apple has no obligation to provide maintenance or support services for the Mobile Application;
d) In case of non-compliance of the Mobile Application with any applicable warranty, the Client may notify Apple, and Apple will refund the purchase price of the Mobile Application (if applicable). Except for the foregoing, to the maximum extent permitted by applicable law, Apple shall have no other warranty obligations with respect to the Mobile Application, and all other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to comply with any warranty shall be governed by these General Terms of Use;
e) Any claim related to the Mobile Application regarding product liability, non-compliance with applicable legal or regulatory requirements, consumer protection claims, or similar legislation shall be governed by these General Terms of Use, and Apple shall not be responsible for such a claim;
f) Any third-party claim that the Mobile Application or the possession and use of the Mobile Application by the Client or any Authorized User infringes that third party’s intellectual property rights shall be governed by these General Terms of Use, and Apple shall not be responsible for investigating, defending, settling, or discharging such an intellectual property infringement claim;
g) The Client represents and warrants that neither it, its Affiliates, nor any of its Authorized Users is: (i) located in a country subject to a U.S. government embargo, or designated by the U.S. government as a country supporting terrorism; or (ii) listed on any U.S. government list of prohibited or restricted parties;
h) The Client may contact Trackforce Valiant in writing regarding any notices, questions, complaints, or claims regarding the Mobile Application at the addresses listed in the Notices section of these General Terms of Use;
i) Apple is a third-party beneficiary of these General Terms of Use regarding the Mobile Application and may enforce these General Terms of Use against the Client; and
j) If any provision of these General Terms of Use is inconsistent or in conflict with Apple’s applicable instructions regarding the Application End User License Agreement or the App Store Terms of Service as of the Effective Date, Apple’s applicable instructions regarding the Application End User License Agreement or the App Store Terms of Service, as applicable, shall apply with respect to such inconsistency or conflict.

9.3 Android Mobile Application. If the Mobile Application is provided to the Client or Authorized Users via Google Inc.’s Play Store (Google Inc. and all its affiliated companies, “Google”), the following terms apply in addition to all other terms of these General Terms of Use regarding the Mobile Application:
(a) The Client acknowledges that Google is not responsible for providing support services for the Mobile Application; and
(b) If any provision of these General Terms of Use is inconsistent or in conflict with the Google Play Terms of Service at the date these General Terms of Use were accepted, the Google Play Terms of Service shall apply with respect to such inconsistency or conflict.

10 CONFIDENTIALITY AND DATA PROCESSING
The Client agrees (on behalf of the Client and on behalf of each Authorized User) to Trackforce Valiant’s access, use, collection, storage, and disclosure of the Client’s and each Authorized User’s Personal Information for the purposes authorized by the Agreement. The Client understands that Personal Information, including the Personal Information of Authorized Users, will be processed in accordance with Trackforce Valiant’s Privacy Policy located at https://www.trackforce.com/fr/politique-confidentialite (the “Privacy Policy”). By entering into the Agreement, the Client hereby agrees to comply with Trackforce Valiant’s Data Processing Addendum located at https://www.trackforce.com/fr/traitement-donnees (the “DPA”), which is incorporated herein by reference.

11 SUPPORT SERVICE LEVEL AGREEMENT
Trackforce Valiant will use reasonable efforts to provide the Services in accordance with the Support Service Level Agreement located at https://www.trackforce.com/fr/accord-de-niveau-de-soutien/, which is incorporated herein by reference.

12 PAYROLL SERVICES AGREEMENT
If the Client subscribes to use Trackforce Valiant’s payroll services, the Client agrees to be bound by the “Trackforce Valiant Payroll Services Addendum” located at https://www.trackforce.com/hcm-terms, which is incorporated herein by reference.

13 MUTUAL EXCHANGE OF CONFIDENTIAL INFORMATION
13.1 Definition of Confidential Information. For the purposes of the Agreement, “Confidential Information” means:
a) In the case of Trackforce Valiant: (i) all trade secrets, know-how, software, software updates and enhancements, and other financial, business, or technical information of Trackforce Valiant or any of its Affiliates, licensors, suppliers, and subcontractors, disclosed or made available by Trackforce Valiant, or on its behalf, in connection with the Agreement; (ii) the terms of the Agreement; and (iii) the non-public aspects of Trackforce Valiant’s Sites and their operation, Trackforce Valiant Technology and Services, the Mobile Application and professional services provided by Trackforce Valiant, as well as Trackforce Valiant’s business and technical information and data;
b) In the case of the Client, the Client’s non-public Data and the non-public aspects of the Client’s technology, computer programs, and business and technical information and data; and
c) In the case of both parties, all other information provided by one party (the “Owner”) to the other party (the “Recipient”) that is identified as confidential or which, due to the nature or circumstances of disclosure, should reasonably be treated as confidential.
Confidential Information does not include information (other than Personal Information) that:
a) Is in the Recipient’s possession or control without restriction on use or disclosure at the time of disclosure under this Agreement;
b) Is or becomes publicly known through no wrongful act of the Recipient;
c) Is received by the Recipient from a third party free to disclose it without obligation to the Owner; or
d) Is independently developed by a party as evidenced by its written, dated records without any breach of the Agreement.

13.2 Restrictions on Use and Disclosure. The Recipient may use Confidential Information solely to fulfill its obligations under the Agreement and will protect such Confidential Information from disclosure to third parties using the same degree of care used to protect its own proprietary information of similar importance, but in any case using at least a reasonable degree of care given the nature of the Confidential Information. The Recipient may disclose Confidential Information received hereunder only to the extent reasonably necessary to perform its obligations or exercise its rights under the Agreement and only to its employees, representatives, and subcontractors who need to know for such purposes and who are bound by signed agreements to protect the Confidential Information from unauthorized use and disclosure.

13.3 Exclusions. Each Recipient may, where permitted by applicable law, disclose the Owner’s Confidential Information to the extent required by a governmental or regulatory authority or as otherwise required by applicable laws and regulations (provided that the Recipient shall first give the Owner reasonable notice of the disclosure so that the Owner has the opportunity to take steps it deems appropriate to contest such disclosure or seek a protective order). Additionally, each Recipient may, where permitted by applicable law, disclose the Owner’s Confidential Information:
a) To its professional advisors, as needed, to enable such persons or entities to provide professional advisory services; and
b) To potential authorized assignees or successors, but only to the extent necessary in connection with a potential business transaction involving the Recipient’s operations or assets; provided that such person or entity is, in each case, subject to confidentiality obligations regarding such Confidential Information no less strict than those contained in this Article 12.

13.4 Return/Destruction of Confidential Information. Upon expiration or termination of the Agreement, or at the Owner’s earlier request, the Recipient shall, at the Owner’s discretion, return or destroy the Owner’s Confidential Information. Notwithstanding the foregoing, it is understood that the Recipient’s computer systems may automatically back up the Owner’s Confidential Information. To the extent that such computer backup procedures create copies of such Confidential Information, the Recipient may retain such copies in its archival or backup computer storage systems for the period during which such archives or backups are normally retained by the Recipient. All archived or backed-up Confidential Information shall be subject to the remaining confidentiality restrictions under the Agreement.

14 CLIENT REPRESENTATIONS AND WARRANTIES
14.1 The Client represents and warrants to Trackforce Valiant, and undertakes to Trackforce Valiant, that the performance of its obligations under the Agreement and the use of the Services and Mobile Application (by the Client and its Authorized Users) will not violate any applicable law or regulation.

14.2 The Client represents and warrants to Trackforce Valiant, and undertakes to Trackforce Valiant, that the signing, delivery, and performance of the Agreement: (a) fall within its corporate powers; (b) have been duly authorized by all necessary corporate actions; and (c) do not and will not conflict with, or result in a default under, and are not and will not be inconsistent with, any judgment or other order, or any contract, agreement, or other commitment applicable to the Client.

14.3 The Client represents and warrants to Trackforce Valiant, and undertakes to Trackforce Valiant, that:
(a) Client Data is free of all viruses, Trojan horses, and comparable elements that could damage the systems or software used by Trackforce Valiant;
(b) for the use by Authorized Users of the Services and the Mobile Application (including geolocation and GPS tracking functionality through the Mobile Application); and
(c) for the Personal Information contained in the Client Data, the Client has provided all required notices and disclosures (including those for each Authorized User), obtained all necessary third-party consents and authorizations, and otherwise has the authority, in each case as required by applicable laws, to allow Trackforce Valiant to provide the Services and Mobile Application, including with respect to the access, collection, use, disclosure, processing, storage, and transmission of Personal Information by or to Trackforce Valiant and to or from all relevant third parties, in accordance with this Agreement.

15 TRACKFORCE VALIANT REPRESENTATIONS AND WARRANTIES
15.1 Trackforce Valiant represents and warrants to the Client, and undertakes to the Client, that: (a) it has the legal right to enter into the Agreement and perform its obligations under it; and (b) its performance of such obligations will not violate any applicable law or regulation applicable to Trackforce Valiant, nor cause a breach of any agreement between Trackforce Valiant and third parties.

15.2 Trackforce Valiant represents and warrants to the Client, and undertakes to the Client, that the signing, delivery, and performance of the Agreement: (a) fall within its corporate powers; (b) have been duly authorized by all necessary corporate actions; and (c) do not and will not conflict with, or result in a default under, and are not and will not be inconsistent with, any judgment or other order, or any contract, agreement, or other commitment applicable to Trackforce Valiant.

15.3 Trackforce Valiant represents and warrants to the Client, and undertakes to the Client, that as of the Effective Date, to its knowledge, Trackforce Valiant has the right to grant the rights specified in the Agreement.

16 LIMITED WARRANTY
Trackforce Valiant represents and warrants that the Services and the Mobile Application:
(a) will conform to all essential operational features described in the applicable Order Form; and
(b) have been tested using commercially available virus detection methodology and, based on such testing, do not contain any viruses, worms, Trojan horses, web bugs, time bombs, “spyware” or other harmful or invasive code or components (the “Limited Warranty”), provided that the Client promptly notifies Trackforce Valiant in writing of any non-compliance. The Client’s sole and exclusive remedy for breach of the Limited Warranty shall be, at Trackforce Valiant’s discretion, to correct the non-compliant Services at Trackforce Valiant’s expense or to refund on a pro-rata basis the Fees paid by the Client for the non-compliant Services from the date Trackforce Valiant was notified of such non-compliance.

17 WARRANTY EXCLUSIONS
TRACKFORCE VALIANT DOES NOT WARRANT THAT THE TRACKFORCE VALIANT SERVICES OR THE MOBILE APPLICATION WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE, OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT PROVIDE ANY WARRANTY REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN SECTIONS 14 AND 15, THE SERVICES, PROFESSIONAL SERVICES, MOBILE APPLICATION, AND ANY OTHER PRODUCT OR SERVICE PROVIDED BY TRACKFORCE VALIANT TO THE CLIENT, AND ALL SERVICES, SOFTWARE, EQUIPMENT, MATERIALS, DATA, AND CONTENT FROM THIRD-PARTY SUPPLIERS, ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE EXTENT PERMITTED BY LAW, TRACKFORCE VALIANT DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF QUALITY AND MERCHANTABILITY, FITNESS FOR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, ACCURACY, QUALITY, INTEGRATION, OR SUITABILITY FOR A PARTICULAR USE OR PURPOSE, OR ANY OTHER WARRANTY OR CONDITION ARISING FROM TRADE USAGE OR COURSE OF DEALING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TRACKFORCE VALIANT EXPRESSLY DISCLAIMS ANY LIABILITY, WARRANTY, OR CONDITION THAT THE DATA OR INFORMATION PROVIDED TO THE CLIENT IN CONNECTION WITH THE CLIENT’S USE OF THE SERVICES, PROFESSIONAL SERVICES, OR THE MOBILE APPLICATION (IN WHOLE OR IN PART) IS ACCURATE, OR THAT THE CLIENT MAY OR SHOULD RELY ON IT FOR ANY PURPOSE WHATSOEVER.

18 DISCLAIMER OF LIABILITY REGARDING THIRD-PARTY ACTIONS AND TECHNOLOGY
Trackforce Valiant does not control and cannot control the flow of data to or from Trackforce Valiant Technology and other parts of the Internet. Such data flow depends on the performance of Internet services provided or controlled by third parties. From time to time, the actions or inactions of such third parties may impair or disrupt the Client’s Internet connections (or parts thereof). While Trackforce Valiant will use commercially reasonable efforts to take any measures it deems appropriate to remedy and avoid such events, Trackforce Valiant cannot guarantee that such events will not occur. TRACKFORCE VALIANT DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF INTERNET SERVICES, SOFTWARE, ASSOCIATED SYSTEMS, OR SYSTEMS PROVIDED OR CONTROLLED BY THIRD PARTIES (INCLUDING THE CLIENT) THAT ARE NOT SUBCONTRACTORS OF TRACKFORCE VALIANT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TRACKFORCE VALIANT IS NOT RESPONSIBLE FOR ANY THIRD-PARTY SOFTWARE OR SYSTEMS (INCLUDING THOSE OF THE CLIENT) (INCLUDING THIRD-PARTY TECHNOLOGY) USED BY THE CLIENT TO ACCESS AND USE THE SERVICES.

19 INDEMNIFICATION
19.1 By Trackforce Valiant. Trackforce Valiant will defend, indemnify, and hold harmless the Client, its employees, officers, directors, affiliates, agents, subcontractors, successors, and assigns from any loss (including damages, recoveries, deficiencies, interest, penalties, and legal fees) arising from a third-party claim against the Client alleging that the Client’s or its Authorized Users’ use of the Services or Mobile Application infringes any third-party Intellectual Property Right; provided that Trackforce Valiant is notified in writing of such claim promptly after such claim is made to the Client. Trackforce Valiant shall have no liability or obligation if the claim results from: (a) any alteration or modification of the Services or Mobile Application by the Client or a third party not authorized by Trackforce Valiant; (b) any combination of the Client’s Services or Mobile Application with associated Systems or software or technologies not provided by Trackforce Valiant; or (c) any use by the Client of the Services or Mobile Application that is prohibited by the Agreement or outside the scope of use for which the Services or Mobile Application are intended.

19.2 By the Client. The Client will defend, indemnify, and hold harmless Trackforce Valiant, its employees, officers, directors, affiliates, agents, subcontractors, successors, and assigns from any loss (including damages, recoveries, deficiencies, interest, penalties, and legal fees) resulting from third-party claims arising directly or indirectly from or in connection with: (a) Client Data; (b) the Client’s breach of any of its obligations, representations, or warranties under this Agreement; or (c) the use of the Services (or any part thereof) by the Client or an Authorized User in combination with any third-party software, application, or service not provided by Trackforce Valiant.

19.3 Indemnification Procedures. The indemnified party will fully cooperate with the indemnifying party in defending any claim defended by the indemnifying party pursuant to its indemnification obligations under the Agreement. The indemnifying party will not settle any such claim that binds the indemnified party to any obligation (other than payment covered by the indemnifying party or cessation of use of infringing materials) or requires an admission of fault by the indemnified party, without the indemnified party’s prior written consent.

20 OPTIONS FOR INFRINGEMENT CLAIMS
Without limiting Trackforce Valiant’s obligations under Article 18.1, if the Client or an Authorized User is enjoined from using the Services or the Mobile Application, or if Trackforce Valiant believes that the Services or the Mobile Application may be subject to a claim of intellectual property infringement, Trackforce Valiant, at its discretion and expense, may:
a) obtain the right for the Client to continue using the Services;
b) replace or modify the Services or the Mobile Application so that they are non-infringing, provided, however, that the Services and the Mobile Application continue to materially comply with the descriptions and specifications provided in the applicable Order Form; or
c) terminate the Agreement, in which case Trackforce Valiant will refund to the Client any Fees paid by the Client for Services not yet delivered.

This Article 19 and Article 18.1 set forth Trackforce Valiant’s exclusive liability to the Client and the Client’s exclusive remedy for any infringement by the Mobile Application or the Services of any third party’s Intellectual Property Rights.

21 EXCLUSION OF CERTAIN DAMAGES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY AUTHORIZED USER FOR:
A) ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES;
B) LOSS OF SAVINGS, PROFITS, DATA, USE, OR GOODWILL;
C) BUSINESS INTERRUPTION;
D) THE COSTS OF PURCHASING SUBSTITUTE PRODUCTS OR SERVICES; OR
E) MATERIAL DAMAGES RESULTING FROM OR RELATED IN ANY WAY TO THE AGREEMENT.

22 LIMITATION OF LIABILITY
22.1 In no event shall the total liability of either party, if any, including liability arising out of or in connection with the Agreement, exceed the amount of Fees paid and payable to Trackforce Valiant for the twelve (12) month period preceding the date such liability arises.

22.2 The parties acknowledge that the provisions of Article 20 and this Article 21 have been negotiated and reflect a fair allocation of risks and form an essential basis of their negotiations, and that they will survive and continue to apply in full force notwithstanding the absence of consideration or exclusive remedy.

22.3 The Client agrees that the intervention and price reduction rights mentioned in Articles 1217, 1222, and 1223 of the French Civil Code do not apply and are not available under this Agreement.

23 NOTICES
Notices sent to either party will be effective when delivered in person or by email, one day after being sent by 24-hour courier service, or five days after being sent by first-class prepaid mail to the official contact person designated by the party to whom the notice is addressed. Notices must be in writing (including by email) and sent:

(i) If to Trackforce Valiant, to the applicable address in the section entitled: “Contracting Entity, Notices, Governing Law, and Jurisdiction.”

For France and Switzerland: [email protected]
For South Africa: [email protected]
For the rest of the world: [email protected]

(ii) If to the Client, to the current postal or email address on file in Trackforce Valiant’s Client records. The Client is solely responsible for keeping its contact information with Trackforce Valiant up to date at all times during the term of the Agreement.

Notwithstanding the foregoing, except for notices related to non-payment and unless expressly authorized otherwise in this Agreement or an Order Form, notices relating to the termination of this Agreement or to any claim (including, without limitation, breach, warranty, or indemnification) may not be given by email. Trackforce Valiant may change its contact information by posting the new contact details on its Sites or by notifying the Client.

24 ASSIGNMENT
Neither party shall assign the Agreement to a third party without the prior written consent of the other party. Notwithstanding the foregoing, Trackforce Valiant may assign the Agreement, in whole or in part, without the Client’s consent, in connection with the transfer or sale of all or substantially all of its business or assets to an Affiliate or a third party, whether by merger, share sale, sale, reorganization, asset transfer, or otherwise. Subject to the first sentence, the parties’ rights and obligations under this Agreement will be binding upon and inure to the benefit of their respective successors and permitted assigns. Any attempted assignment not in accordance with this Article 23 will be null and void.

25 FORCE MAJEURE
Neither party shall be liable for delays caused by any event or circumstance beyond the reasonable control of the parties, including force majeure events as defined by Article 1218 of the French Civil Code and case law, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor issues, storms or other natural disasters, blockades, embargoes, riots, public health emergencies (including pandemics and epidemics), acts of terrorism, criminal acts by third parties, internet service failures or delays, or the unavailability or modification by third parties of telecommunications or hosting infrastructure or third-party websites.

Force majeure shall relieve the affected Party from performing its contractual obligations only to the extent and for the duration that it is prevented from doing so. The Party affected by force majeure shall promptly notify the other Party. The Party invoking force majeure shall make commercially reasonable efforts to mitigate the adverse effects of the situation as much as possible. If the force majeure event lasts more than sixty days, rendering one Party unable to perform its obligations under these Conditions, the other Party may fully terminate the affected Services without any compensation being due from the other Party.

26 MISCELLANEOUS
26.1 Dispute Resolution. Each party agrees that before seeking any form of judicial remedy (except for provisional relief as explicitly set forth below), it will give the other party written notice of the specific issues in dispute (and reference the relevant provisions of the agreement allegedly breached). Within thirty (30) days after such notice, knowledgeable executives of the parties shall hold at least one meeting (in person, or via video or teleconference) to attempt in good faith to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including but not limited to informal negotiations, mediation, or arbitration, except as necessary to prepare for or conduct such dispute resolution proceedings, or as otherwise required by law or court order. The dispute resolution procedures of this Article do not apply to claims subject to indemnification under Article 18 (Indemnification) or before a party seeks provisional relief related to claims for misappropriation or ownership of intellectual property, trade secrets, or Confidential Information.

26.2 Waiver. Waiver by either party of a breach or default under any provision of the Agreement must be in writing and shall not be construed as a waiver of any subsequent breach or default under the same or any other provision of the Agreement. Any delay or failure by either party to exercise or enforce any right or remedy it has or may have under this Agreement shall not be deemed a waiver of any such right or remedy.

26.3 Severability. If any provision of the Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, that provision shall be removed from the Agreement and all other provisions shall remain in full force and effect.

26.4 Relationship of the Parties. Nothing in the Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment, or fiduciary relationship between the parties. Neither party, nor its agents, has the authority in any way to bind the other party in any respect, and the relationship between the parties is and shall remain at all times that of independent contractors. Although the Trackforce Valiant entity contracting with the Client or the Client’s affiliate remains fully responsible for all Trackforce Valiant obligations under this Agreement, the parties agree that certain obligations under this Agreement may be fulfilled by other Trackforce Valiant Affiliates.

26.5 Public Announcements. Trackforce Valiant may issue a press release or make other public announcements regarding the Agreement, use the Client’s name as a customer reference, or use the Client’s trademarks on Trackforce Valiant’s customer lists or other materials.

26.6 Headings; Interpretation. The headings used in these Terms of Use are for convenience only and shall not affect the meaning or interpretation of the Agreement. The term “including” means “including, without limiting the generality of the foregoing.”

26.7 Amendments to the Agreement. Except as stated herein, no amendment or modification of any provision of the Agreement shall be effective unless in writing and signed by a duly authorized signatory of both Trackforce Valiant and the Client.

26.8 Entire Agreement. The Agreement, including additional Trackforce Valiant agreements or third-party supplier terms incorporated herein by reference, constitutes the entire agreement between the parties with respect to its subject matter and supersedes: (a) all prior or contemporaneous statements, discussions, proposals, negotiations, terms, communications, and agreements, whether oral or written, between the parties relating to the subject matter of the Agreement, unless otherwise specified; and (b) all past dealings and industry customs. The Client will also be bound by any other applicable Trackforce Valiant terms or policies, including, without limitation, the API Terms of Use, the Support Level Agreement, the ATD, and the Trackforce Valiant Payroll Services Addendum.

26.9 Contracting Entity, Notices, Governing Law, and Jurisdiction. The Trackforce Valiant entity entering into this Agreement, the address to which the Client must send notices under this Agreement, and the law that will apply to any dispute or litigation arising out of or in connection with this Agreement depend on the Client’s place of residence. Any lawsuit, action, or legal proceeding arising out of or related to the Agreement shall be brought and heard exclusively in the applicable courts specified below, and each party irrevocably submits to the exclusive jurisdiction of such courts for such lawsuit, action, or proceeding. This jurisdiction does not prevent Trackforce Valiant from seeking injunctive relief in the event of a breach of Intellectual Property Rights or confidentiality obligations in any court of competent jurisdiction in an appropriate jurisdiction. The Client and Trackforce Valiant expressly disclaim the applicability of the terms of the United Nations Convention on Contracts for the International Sale of Goods, and any legislation implementing it shall not apply to the Agreement, the use of the Services, or any disputes arising therefrom.

If the Client is domiciled in: | The Trackforce Valiant entity entering into this Agreement is: | Notices must be sent to: | Governing law is: | Courts having exclusive jurisdiction are:

France | Alpha System SAS | 40, Rue du Colisée
75008 Paris
[email protected] | French law | Commercial Court of Paris

Switzerland | Bear Software Company | P.O. Box 393
2800 Delémont 1
[email protected] | Swiss law | Swiss Commercial Court

South Africa | Trackforce PTY | Pendoring Office Park Unit 1
299 Pendoring Rd
2195 Blackheath
[email protected] | South African law | Johannesburg Commercial Court

United Kingdom | Trackforce Valiant Limited | 17 Sandy Lane
Codsall
Wolverhampton West Midlands WV8 1EN
[email protected] | UK law | London Commercial Court

Rest of the world | Guardtek Sarl | 6, Rue Henri Schnadt
L-2530 Luxembourg
[email protected] | Luxembourg law | Luxembourg Commercial Court

Legal

Contrat Trackforce SaaS

1. DEFINITIONS

2. SERVICES AND PROFESSIONAL SERVICES; RESTRICTIONS

3 ACKNOWLEDGEMENTS AND OBLIGATIONS OF THE CLIENT REGARDING THE SERVICES