The following terms and conditions define the conditions of access and use of the Hopex Software (“Product”) for evaluation purposes. Any use of the Product for evaluation purposes is subject to the terms and conditions described therein and the Purchase Order concluded between the Parties (jointly, the “Evaluation Agreement”). The Licensee will indicate its acceptance of this Agreement in its entirety and without any modification or addition by doing or more of the following: clicking “I agree” or similar affirmation as applicable which appears during the on-boarding process or accessing or using the Product.
If you do not agree to be legally bound by this Agreement in its entirety and without modification or addition, then you do not have License to use the Product and you should contact MEGA.

PREAMBLE
The purpose of the POC – Proof of Concept – is to grant the Licensee with a right to use a simplified version (basic functionalities) of the Product only for evaluation purposes. As such, the Licensee will be only granted the use of a pre-production environment.
The Evaluation Agreement applies to the following two evaluation models:
• On premise: The Product is hosted in an environment owned by the Licensee.
• On SaaS: The Product is hosted on a platform provided by MEGA and accessed through the Web (“Web Access”).

1. LICENSE GRANT
Subject to the terms and conditions of the Evaluation Agreement, MEGA hereby grants the Licensee the right to access and use the Product. This license is a worldwide, non-exclusive and non-transferable right to use the Product, for the duration and scope described in the Purchase Order accepted by the Parties (“Purchase Order”), solely for evaluation purposes, which excludes any use for commercial purposes of any kind.

2. SERVICES
Upon the Licensee’s request and subject to the payment of additional fees, MEGA may agree to provide certain services related to the evaluation of the Product. Such services shall be set forth in a separate Purchase Order.

3. RESTRICTIONS
As part of the SaaS evaluation model, the Licensee agrees not to interfere or disrupt the Services, including MEGA’s or MEGA’s hosting provider servers and to comply with the recommendations, procedures and rules that will be communicated by MEGA to the Licensee during the term of the Evaluation Agreement.

4. INTELLECTUAL PROPERTY
The Evaluation Agreement does not transfer any intellectual property rights (including but not limited to the Product and any modifications, enhancements, improvements or any algorithms, methodologies, models, and data included in or provided with the Product). MEGA, and/or its licensors, will retain all ownership and intellectual property rights to anything provided, developed, or delivered under this Evaluation Agreement.
The Licensee acknowledges that the Service may contain or be accompanied by certain third-party’s software (“Third-Party Products”). Third-Party Products may be subject to special license notices and terms and/or conditions of use (“Third-Party Notices”) which will, if applicable, be specified in the Purchase Order. The Licensee shall take all reasonable steps to prevent unauthorized use, access, copying or disclosure of MEGA’s intellectual property, and the Licensee shall promptly inform MEGA, in writing, of any known unauthorized use of the MEGA intellectual property.
The Licensee shall not (and shall not permit any third-party to), (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocol of the Product; (ii) modify, adapt, or translate the Product; (iii) resell, distribute, sublicense, or make any commercial use of the Product; (iv) remove or modify any proprietary marking or restrictive legends placed on the Product; (v) use the Product in violation of any applicable law or regulation or for any purpose not specifically permitted in this Evaluation Agreement; or (vi) introduce into the Product any software, virus, worm, or malware of any kind; or (vii) use the Product in any manner that is contrary to the Evaluation Agreement.

5. DISCLAIMER
Each party warrants that: (i) it has the full right, power, and authority to enter into the terms and conditions of this Evaluation Agreement; and (ii) it shall comply with all applicable laws, rules, and regulations in the conduct of its activity and in the performance of its contractual obligations.
The Product (including its updates, documentation and any other materials provided hereunder) is provided “as is”. MEGA makes no warranties with respect to the Product.
In the event that the evaluation is provided through a Web Access, the Licensee recognizes and agrees that MEGA does not grant any warranty with regards to the security of the Licensee’s Data.

6. CONFIDENTIALITY
Each Party agrees to treat as strictly confidential all information, regardless of its nature and support, collected by the parties during the performance of the Evaluation Agreement (“Confidential Information”). Confidential Information includes financial data, product descriptions, any descriptions, product development concepts or ideas, database descriptions and business structures, flows or processes, and business information (including without limitation, computer programs, programs, software, databases, names and areas of expertise of employees, suppliers, and consultants, Licensees' lists, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and all other plans, forecasts, strategies and information of a technical, functional, financial, economic, legal, operational nature) that are confidential, non-public, competitively sensitive, private, and/or proprietary, and which are disclosed by one party under this Evaluation Agreement to the other party. These confidentiality provisions apply to all information, whether marked “Confidential” or confidential by nature, including without limitation, the Product and Documentation. The confidential obligations of this Evaluation Agreement shall not apply to: (i) information that is or becomes part of the public domain prior to or subsequent to its disclosure, without breaching any obligation under this Evaluation Agreement, (ii) information that is lawfully acquired from a third-party, without any restriction or breach of the Evaluation Agreement, (iii) information that is published, without such publication constituting a breach of the Evaluation Agreement, (iv) information already known by either party, where such knowledge can be demonstrated through appropriate existing documentation, or (v) information resulting from internal developments undertaken in good faith by employees of either party who have not had access to such information, (vi) information that is required to be disclosed in accordance with any judicial or governmental order.
This section shall survive for a period of three (3) years following the end of the Evaluation Agreement.

7. LICENSEE’S DATA

7.1. Ownership of Licensee’s Data
The Parties agree that the Data used, processed, hosted, saved, or stored by MEGA or its suppliers on behalf of the Licensee, or on the initiative of the latter, are and will remain the property of the Licensee.

7.2. Conformity of Licensee’s Data
The Licensee undertakes to process, distribute, download, or transmit through the Product, only the information and Data which the use does not infringe any intellectual or industrial property right or any other proprietary right, or that does not constitute a criminal offence. MEGA shall not be held responsible in case of processing, use, storage, or collection by the Licensee of Data, of which the nature does not respect the applicable laws in the countries where the data is hosted, displayed, or used. In the event that MEGA is informed that all or part of the Data does not comply with the regulations in force, or if it is suspected that the character of the Data is inappropriate, misleading or abusive or that it represents a risk of infringement of the law, MEGA reserves the right to terminate forthwith this Evaluation Agreement and notify the Licensee in writing, without prejudice to any other right or remedy MEGA may claim.

7.3. Access to Licensee’s Data
When the Product is provided through a Web Access, the Licensee grants MEGA the right to access its Data solely to enable MEGA to perform its obligations in accordance with the Evaluation Agreement.

7.4. Data Hosting
When the Product is provided through a Web Access, the Licensee acknowledges and agrees that its Data may be hosted outside of the Licensee’s country.

8. LIABILITY
To the extent allowed by applicable laws, the Licensee agrees and acknowledges that under no circumstances shall MEGA be held liable for any direct and indirect damages resulting from the use of the Product (including but not limited to, when relevant, the access to a remote server) and from the performance of certain services subject to this Evaluation Agreement.
To the extent that applicable laws do not permit MEGA to exclude all liability related to this Evaluation Agreement, the liability of MEGA under this Evaluation Agreement shall not be in excess of the greater of the fees paid by the Licensee to MEGA during the last six (6) months, or two thousand (2 000) Euros.

9. FEE, INVOICING & PAYMENT
In consideration of the provisions of the Product, the Licensee shall pay the fees set forth in the Purchase Order. Unless otherwise stated in the Purchase Order, invoices shall be issued on the signature date of the Purchase Order and shall be payable within thirty (30) calendar days from the date of the invoice. In the event of late payment, late payment penalties are payable the day after the payment date set forth in the invoice, without the need for a reminder. In this case, the late payment interest rate will be equal to the European Central Bank (refinancing rate) increased by ten (10) points. In addition, in the event of late payment, the Licensee shall be liable for all recovery costs, including consulting and legal fees, incurred by MEGA.

10. TERM AND TERMINATION

10.1. Term
If no duration is provided in the Purchase Order, the Evaluation Agreement is concluded for a period of three (3) months.

10.2. Termination for breach
MEGA reserves the right to terminate the Evaluation Agreement without judicial intervention in the event that the Licensee uses the Product in a way not authorized by this Evaluation Agreement and such use will constitute an infringement of MEGA’s intellectual property rights. MEGA also reserves the right to terminate the Evaluation Agreement at any time in case of default of or late payment by the Licensee.

10.3. Effects of Termination
After expiration or termination of the Evaluation Agreement, the Licensee shall cease the use of the Product and shall decommission the Product from its computers or servers. Each party shall destroy, or if requested by the other party, return all Confidential Information to which it has been given during the performance of the Evaluation Agreement.

11. GENERAL PROVISIONS

11.1. Severability
If one or more of the provisions of this Evaluation Agreement are held unenforceable by a court of competent jurisdiction, such provisions shall be enforced to the fullest extent permissible so as to respect the will of the parties. The remaining provisions, not affected by the court decision, shall remain in forth.

11.2. Governing Law
This Evaluation Agreement shall be governed by the laws of France, as applied to contracts to be performed wholly within such jurisdiction, and without regard to the U.N. Convention on Contracts for the International Sale of Goods. The parties hereby consent to the exclusive jurisdiction of the Court of Appeal located in Paris (France) in any action arising out of or relating to this Evaluation Agreement and agree that any action arising out of or relating to this Evaluation Agreement shall be maintained in the same jurisdiction.

12. ANTI-CORRUPTION AND EXPORT CONTROL
Each Party agrees that:
• It will comply with all applicable laws, ordinances, and regulations of any jurisdiction, including the U.S. Foreign Corrupt Practices Act, the UK Bribery Act, the French Sapin II Law and all other applicable anti-corruption laws, anti-money laundering laws, and competition laws (collectively “the Anti-corruption Laws”). Neither Party will take any action, nor fail to take any action, that would result in the other Party violating any applicable Anti-corruption Laws;
• Neither Party will offer or give any sum of money or anything of value to any person, in order to obtain or retain business for the benefit of itself or the other Party under this Evaluation Agreement, or to secure any other improper advantage for itself or the other Party. Any provision of gifts, meals, entertainment expenses or travel expenses must be compliant with applicable Anti-corruption Laws;
• It will not submit any false or inaccurate invoices to the other Party or otherwise falsify any documents.

 

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