Cloud for Capella

OBEO is Obeo S.A.S., a French company specialized in modeling tools and technology, headquartered at 7 Boulevard Ampere, BP 20773, 44470 CARQUEFOU, FRANCE, and registered with the Business Number: 485 129 860 RCS Nantes.

The CUSTOMER is the organization willing to use an externalized software solution to support modeling activities.

 

1.1 - Overview

The current Terms of Service defines the conditions under which OBEO commits to make the software and the associated services available to the CUSTOMER, and the conditions under which the CUSTOMER may access this service.

The CUSTOMER agrees to be bound by these Terms of Service. If the CUSTOMER or an End User violate any of these Terms of Service, OBEO reserves the right to cancel or block the corresponding account without notice, harmless from any loss, liability, claim, or demand.

 

1.2 - Definitions

Software: means the software solution made available to the CUSTOMER as a Service offer: “Cloud for Capella.”

Contract: means the current Terms of Services with the “Technical and Financial Proposal” and its appendices given to the CUSTOMER.

Data: means any information of the CUSTOMER submitted, created, downloaded and generated either automatically or by the end user stored using the Software. Such pieces of information are considered confidential information and the CUSTOMER remains the owner of this information.

Security Incident: means any security breach related to the Software, the confidentiality of the Data and more broadly any unauthorized access, use or modification of Data.

Services: means the services made available by OBEO to the CUSTOMER as described in the “Technical and Financial Proposition.” More especially (i) the availability to the CUSTOMER of the Software as a Service (ii) the hosting of both the Software and the Data, (iii) the administration and support of the hosting servers, (iv) the backup of the Data, (v) the support and maintenance of the Software.

End User: means any person empowered by the CUSTOMER to connect to the Software and access the Services in accordance with these terms.

Identifier: means the specific name through which each End User will authenticate to connect to the Services. A password specific to the End User will always be attached to the Identifier.

 

1.3 - Software Usage Rights

OBEO grants to the CUSTOMER a non-exclusive right for the End Users appointed to use the Software and the corresponding Documentation for the duration of the contract and for specific territories as specified in the “Technical and Financial Proposal.”

The CUSTOMER is responsible for the correct use of the Software by the End User.

The CUSTOMER may grant access to the Service to third party, the CUSTOMER then warrants that the third party respect the Contract and OBEO’s rights over the Software, and that such access is granted exclusively for work carried out on CUSTOMER projects.

Under no circumstances the CUSTOMER may sell, resell, license, sublicense, rent, or lease the access to the Service to a third party.

 

1.4 - Access to the Services

OBEO provides access and execution of the Services conform to the SLA (Service Level Agreement) detailed in the “Financial and Technical Proposal” and deploy commercially reasonable efforts in accordance with the current Terms.

End Users are authorized to access the Services, in accordance with the process defined in the Services Documentation using their Identifiers even when not present on site of the CUSTOMER as long as they are using an IP address within a range authorized by the CUSTOMER.

The Services are provided thanks to a dedicated infrastructure using resources from OBEO and its suppliers as long as the CUSTOMER fulfil its obligations.

OBEO may, at any time, adapt and change the Software and/or the Services, or modify the way the Services are provided if it can be reasonably assumed that it might not cause any difficulty to the CUSTOMER or if it improves the Services.

The CUSTOMER acknowledges having been informed of all the technical prerequisites required for an optimal delivery of the Services by OBEO. The CUSTOMER further acknowledges that these prerequisites might evolve, notably for technical reasons and that OBEO will provide him prior notice in such circumstances. The complete technical prerequisites and their updates are detailed in the “Financial and Technical Proposal.”

The CUSTOMER commits to prevent unauthorized accesses to the Services and to make sure any appointed End User respects the confidentiality of the Identifiers.

The CUSTOMER will make sure End Users are respecting the obligations related to the Identifiers confidentiality. These Identifiers should only be used to authorize the access of the Services by the End Users. Under no circumstances these identifiers should be communicated to a third party, nor to other End Users.

The CUSTOMER is responsible for the confidentiality of the Identifier and will notify OBEO promptly in case of a security incident, notably through a non-authorized communication or a misappropriation of identifiers so that OBEO can remediate promptly to this security breach.

The authentication used to authorize access to the Services is managed by OBEO. Identifiers are appointed for each End User, including the password. Each End User might update its password following the procedure stated in the Services Documentation.

In case of loss or misappropriation of an Identifier or password, new Identifiers will be granted to the End User through the process detailed in the Services Documentation.

Furthermore, violation of any of the terms specified in the Terms of Service will result in the termination of the End User account.

The CUSTOMER acknowledges that the connection to the Services rely on the Internet network and as such might experience throughput slowdowns, delays or disconnections.

OBEO cannot be held responsible for difficulties in accessing the Services dues to Internet disruptions or any other circumstances beyond OBEO reasonable control, including, for example flood, fire, earthquake, civil unrest, act of terror, Internet service provider failure or delay, hosting service provider failure or delay or denial of service attack.

Access to the Services might be temporarily suspended for maintenance or other necessities, in such case prior notice will be given to the CUSTOMER through its appointed main contact.

In case of a breach or issue detected by OBEO and deemed serious enough to compromise the system security and/or the Data, OBEO might temporarily suspend access to the Services without prior notice in order to remedy the issue promptly.

 

1.5 - Intellectual Property and Software Usage

The CUSTOMER acknowledges and agrees that the Software is a proprietary product of OBEO protected by copyright and other applicable intellectual property laws and treaty provisions. The CUSTOMER further acknowledges and agrees that the entire right, title, and interest in and to the Software including associated intellectual property rights, shall remain with OBEO and its licensors. OBEO and its licensors retain all rights not expressly granted to the CUSTOMER in this Terms of Services.

The CUSTOMER agrees not to reproduce, duplicate, copy the Software.

 

1.6 - Indemnification

OBEO will indemnify and hold the CUSTOMER harmless upon a claim that the SOFTWARE infringes any intellectual property right belonging to a third party. OBEO will defend actions brought against the CUSTOMER at its own expenses provided that it is based upon such a claim. OBEO will pay all costs and damages finally awarded against the CUSTOMER, provided that OBEO is given prompt written notice by the CUSTOMER of such claim and is given all available information, reasonable assistance, and sole authority to defend and settle the claim.

 

1.7 - Termination and Data Export

At the termination of the current contract, whatever the cause, the right to use the Software granted by OBEO will be automatically terminated and the Data will only be available on OBEO infrastructure for a delay of 30 days: the Termination phase. During this delay the CUSTOMER may retrieve the Data using the export facilities made available through the Software.

 

1.8 - Software Updates and Maintenance

OBEO maintains and updates the Software under the terms and conditions expressly enumerated in the “Financial and Technical Proposal.”

 

1.9 - Privacy Policy

1.9.1 - Ownership over Data

The CUSTOMER is the sole owner of the rights over the Data processed as part of the Services.

The CUSTOMER grants OBEO and applicable contractors a worldwide, limited-term and free license to host, copy, transmit, display and process his uploaded data information as reasonably necessary for OBEO to provide the Services in accordance with this Agreement.

Subject to the limited licenses granted herein, OBEO acquires no right, title or interest from the CUSTOMER or his licensors under this Agreement in or to any of the End User’s Data.

The CUSTOMER declares and warrants it holds all the authorizations required to process the Data using the Services and to grant the aforementioned license to OBEO and applicable contractors and holds harmless OBEO from any claim in this regard.

The CUSTOMER will indemnify OBEO of any claim related to a failure from the CUSTOMER regarding the aforementioned warranties over the Data.

This license over the Data will be automatically revoked at the end of the Termination phase.

1.9.2 - Access to Data

OBEO will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Software and/or Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of the Software and/or Data by SERVICE PROVIDER personnel except (i) to provide the subscribed services and prevent or address service or technical problems, (ii) as compelled by law, or (iii) as the CUSTOMER expressly permits in writing.

The CUSTOMER acknowledge that the technical infrastructure used to provide the Services are provided by a legal entity subject to U.S. jurisdiction, notably "Clarifying Lawful Overseas Use of Data Act Act" (H.R. 4943) which provides a mechanism for a U.S. court, under very specific and limited circumstances, to request access to the Data to the technical infrastructure supplier.

 

1.10 - Disclaimer

OBEO warrant the Services conforms to its documentation, however, the CUSTOMER acknowledges and agrees that the Software is not guaranteed to run either error-free or without interruption and that the CUSTOMER is under the exclusive control and responsibility for the usage of any inputted or generated outputted data (including its accuracy and adequacy).

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The CUSTOMER is solely responsible for determining the appropriateness of using the Services and assumes all risks associated with its exercise of rights under this agreement, including but not limited to the risks and costs of program errors, damage to or loss of data, programs or equipment, and unavailability or interruption of operations. OBEO does not guarantee against the risks inherent in using the SOFTWARE including but not limited to service interruption, loss of connection, data loss, system crashes, poor performance or deterioration in performance. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER OBEO AND/OR ITS THIRD PARTY SUPPLIERS SHALL HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THE PROGRAM OR THE EXERCISE OF ANY RIGHTS GRANTED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE TOTAL LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL NOT EXCEED 10% OF THE AGGREGATE FEES PAID HEREUNDER PURCHASE PRICE. THE LIMITATIONS PROVIDED IN THIS SECTION SHALL APPLY EVEN IF ANY OTHER REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.

 

1.11 - Jurisdiction and Venue

The CUSTOMER, through the End Users may not use the Service for any illegal or unauthorized purpose, nor may, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws), the laws applicable to the CUSTOMER’s jurisdiction, or the laws of France. The CUSTOMER will comply with all applicable laws, rules and regulations in its use of the Service.

This Terms of Service is governed by and construed in accordance with the laws of France without regard to its conflict of laws provisions. Exclusive venue for all litigation shall be in “Tribunal du Commerce”, Nantes in France. If you choose to access the Site from locations other than France, you will be responsible for compliance with all local laws of such other jurisdictions and you agree to indemnify Obeo and the other Released Parties for your failure to comply with any such laws.

 

1.12 - Miscellaneous

If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.