Terms and conditions

General Terms and Conditions (hereafter “GTC”) for the Supply of Services and the Sale of Associated Equipment

Definitions
Client(s) means the Party or Parties who subscribe to the Elum Solution and the Services.
Commercial Proposal means the technical and commercial proposal related to the supply of the Elum Solution and its Services as well as the provision of the Operating Platform as presented by Elum and accepted by the Client.

Commissioning refers to the process by which the Operating Platform is installed, configured, tested, and validated to confirm that it is operational and meets the agreed specifications. Commissioning shall be deemed completed upon the earliest of:

1. the Operating Platform performing in accordance with the agreed specifications as demonstrated through standard testing procedures, or
2. the Operating Platform being effectively used, integrated, or activated by the Client, including any real-world use, partial activation, or connection to the Client’s infrastructure with data transmission and core functionalities enabled, or
3. the absence of any written reservations submitted by the Client within seven (7) calendar days following the Operating Platform’s Commissioning, in accordance with Article 6.2 (Reception of the Operating Platform).

Contract means the contractual documents referred to in Article 4 hereof.

Customer Support Services means the assistance provided by Elum to the Client for the purpose of ensuring the proper functioning, configuration, troubleshooting and maintenance of the Elum Solution, including but not limited to remote or on-site technical support, hotline access, incident management, and user training.

Data means Client information or data (including Personal Data) processed or generated in connection with the implementation of the Elum Solution and Services.

eCare Services means the optional Customer Support and Maintenance assistance program offered by Elum, available under different service plans (Basic, Core and Advanced), as further described in the schedule “eCare Service Description & SLA”.

Elum Solution means both the Web Platform and the Operating Platform.

GTC means the present general terms and conditions for the supply of services and the sale of associated equipment.

Operating Platform means all the equipment sold by Elum to the Client for the purpose of using the Elum Solution, including the control software.

Order Form means the document issued by Elum which constitutes once signed by the client the confirmation of the order for the Elum Solution, the Operating Platform and the Services.

Party(ies) means the Client and/or Elum.

Personal Data means information or data collected and processed in the context of the implementation of the Elum Solution and Services and which are within the meaning of the Directive 95/46/EC, the French Law No. 78-17 of January 6, 1978 on data processing, files and individual liberties known as “Data Protection Act” (amended by the Decree of November 4, 1991, the Law of August 6, 2004 transposing the Directive 95/46/EC), and the General Data Protection Regulation (EU) 2016 / 679 (GDPR) or within the meaning of any other applicable regulation, personal data that enables to identify, directly or indirectly, a natural person.

Services means the services (including eCare Services) associated with the Elum Solution provided by Elum to the Client under this Contract.

Service Plan means any of the subscription levels forming part of the eCare Services (Basic, Core, Advanced) subscribed by the Client pursuant to an Order Form or Commercial Proposal.

Support Pack means an additional eight (8)-hour package of Customer Support Services that may be purchased by the Client separately or in addition to a subscribed Service Plan.

User means the Client’s personnel authorized by Elum to access the Elum Solution in the name and on behalf of the Client and for use in accordance with these GTC.

Web Platform means the remote user interface.

Article 1.Object

The purpose of these contractual provisions is to define the general terms and conditions under which the French company Elum, a simplified joint stock company with a share capital of 23 632,31 € having its registered office at 9 Rue d’Enghien 75010 Paris, registered under SIRET number 81786008300028 in the Paris Trade and Companies Register, represented by its President, Mr. Cyril COLIN, provides the the Client with the Elum Solution, the Operating Platform and the Services.

Article 2. Scope and entry into force

2.1. The Client shall be deemed to have accepted without reservation the entire Contract, which comes into force, unless otherwise stipulated in writing and accepted by Elum, as from:

• the signature of the GTC and/or ;
• the signature of any Order Form and/or the supply of the Elum Solution and/or ;
• the provision of the Operating Platform to the Client and/or;
• the commencement of any performance of Services.

2.2. Except with Elum express written consent, no general or specific stipulation contained in the documents sent or delivered by the Client, including its general purchase conditions, may be incorporated herein.
2.3. Unless otherwise agreed and unless the Client has expressly contested their content, these GTC (as they stand at the time of conclusion of the Contract) shall also apply to all future business relations between the Client and Elum, without Elum having to refer to them again in each individual case.
2.4. The effective date of these modifications will be brought to the Client’s attention.

Article 3. GTC modification

3.1 Elum reserves the right to modify its GTCs at any time subject only to prior written notice to the Client. Should the Client refuse, it shall have the right to object within five (5) days and terminate the Contract under the duration and termination provisions of article 14, and the applicable GTCs shall be the ones the Client subscribed to up until the contract’s termination.

Article 4. Contractual Documents
4.1. The contract consists of the following contractual documents, presented in descending order of legal value:

• The GTC,
• Order Form(s),
• Commercial Proposal,
• Appendices (including all applicable technical documentation: technical specification, statement of work, delivery planning, change orders and any other applicable documents enclosed to the present Contract)
  (hereinafter the “Contract”).

4.2. In the event of conflict between one and/or more provisions contained in one of these documents, the document of higher rank shall prevail.
4.3. Any new Order Form and/or Commercial Proposal forms an integral part of the Contract.

Article 5. Order and delivery
5.1. Details of the Elum Solution, the Operating Platform, the Services and any related specifications are given in the Order Form signed for this purpose.
5.2. The order must be confirmed in writing, by means of an Order Form, duly signed by the Client. Upon receipt, the Order Form is irrevocable.
5.3. The Client guarantees to have read and understood the present GTC, before signing the Commercial Proposal and the corresponding Order Form.
5.4. The Commercial Proposal and the corresponding Order Form are each valid for 30 days from the date of receipt by the Client, unless otherwise stated, and may be cancelled or modified by Elum in writing in the absence of acceptance by the Client within the validity period.
5.5. Unless otherwise specified in the Order Form , all orders are delivered CIP Incoterms ICC 2020. If the Customer has not informed ELUM whether it intends to take over the receipt of the Elum Solution, Elum reserves the right to arrange for its transport, at the expense and risk of the Customer. In the event that EXW Incoterms ICC 2020 are expressly agreed in the Order Form, the Customer shall collect the Elum Solution within a maximum period of seven(7) working days from the date of notification of availability. Beyond this period, storage costs of fifteen(15) euros per additional day will be charged to the Customer. Should the goods remain uncollected for more than thirty(30) working days after written notification of availability, and without justified reason or force majeure, they shall be deemed abandoned. The Supplier shall be entitled, without notice or compensation, to dispose of the goods at its sole discretion, including resale, donation, or destruction. Storage fees are due automatically and may be invoiced periodically or at the end of the storage period.

Article 6. Provisions related to the Operating Platform
6.1. Delivery of the Operating Platform
6.1.1. The delivery of the equipment constituting the Operating Platform is carried out within the deadlines and at the place determined between the parties.
6.1.2. Delivery times are given as an indication only. These deadlines depend in particular on the availability of the equipment included in the Operating Platform from Elum’s suppliers. Therefore, any delays in delivery shall not give rise to the payment of default interest or damages to the Client, nor may they result in the termination of the GTC.
6.2. Reception of the Operating Platform
6.2.1. After Commissioning of the Operating Platform, the Client has a period of seven (7) calendar days to verify its conformity to the order and its proper functioning.
6.2.2. Within this period, it is the Client’s responsibility, in the event of damage to the delivered Operating Platform, non-conformity, missing or damaged element, to make all the necessary reservations in writing to Elum which will proceed, if necessary, to its choice either (i) to the replacement of the Operating Platform or the defective equipment including it and the lifting of the reservations as soon as possible in cooperation with the Client, or (ii) to the reimbursement of the order, excluding any compensation, damages or interests.
6.2.3. The partial defect of a delivery cannot justify its total rejection.
6.2.4. Any equipment included in the Operating Platform that has not been the subject of reservations submitted to Elum within seven (7) calendar days of its Commissioning shall be considered definitively accepted by the Client. The same shall apply if the Client brings the Operating Platform into service.

6.3. Transfer of Ownership – Transfer of Risks
6.3.1. The transfer of ownership of the Operating Platform to the Client shall only be effected after full payment of the price by the Client, regardless of the delivery date.
6.3.2. Consequently, Elum reserves, until full payment of the price by the Client, a right of ownership on the Operating Platform sold, allowing it to repossess the Operating Platform.
6.3.3. Any advance payment made by the Client shall in all cases remain the property of Elum by way of lump-sum compensation, without prejudice to any other claims it may have against the Client as a result, subject to the provisions of Article 16.1.4.
6.3.4. On the other hand, the transfer of the risks of loss and/or deterioration of the materials included in the Operating Platform, as well as the risks of delay, are transferred to the Client upon delivery of the Operating Platform (i.e., delivery before commissioning) to the Client or its representative. However, if the Client were to use its own shipping method, the risks of loss and/or deterioration of the equipment included in the Operating Platform, as well as the risks of delay, are transferred to the Client not when the Operating Platform is delivered but when the Operating Platform is delivered to the shipper chosen by the Client.
6.3.5. In case of liquidation or dissolution of the company, the Client shall have the option to pay the remainder of the amount due in order to acquire the right of ownership on the Operating Platform sold. Elum commits to provide the Client in such a case with sufficient documentation to enable the Client to operate and maintain the Elum Solution.

Article 7. Obligations of the Client
7.1. It is the Client’s responsibility to be exhaustive and accurate in stating his own needs and the required specifications of the Elum Solution, and to ensure that he has the necessary expertise to use it. ELUM shall not be held liable for any mismatch between the Elum Solution and the Client’s intended use if such mismatch arises from incomplete, inaccurate or evolving requirements provided by the Client
7.2. The Client acknowledges having received all the information enabling it to assess the compatibility of the Elum Solution and the Operating Platform with its electrical and IT installations.
7.3. The Client also warrants that it has received all information, including information on the technical characteristics of the Elum Solution, enabling it to assess the suitability of the Elum Solution for its needs.
7.4. The Client acknowledges having been informed of the need to carry out test procedures prior to the commissioning of the Elum Solution and the Operating Platform.
7.5. The Client acknowledges the need for Elum to have permanent access to the Elum Solution made available to the Client in the context of the performance of its Services and consequently authorizes Elum to access the said Elum Solution as required.
7.6. In addition to the equipment included in the Operating Platform, the Client must dispose of the equipment required to use the Elum Solution. The Client must also have secure Internet access. Elum cannot be held responsible for any interruption of the network line. The Client is solely responsible for the security of its overall information system and infrastructure used in connection with the Elum Solution. ELUM shall not be liable for any security breach or data loss resulting from vulnerabilities in the Client’s systems or network.
7.7. The Client is reminded that the execution of the Contract requires loyal and active cooperation between the Client and Elum.
7.8. In this respect, the Client undertakes to provide Elum with all documents and information necessary for the performance of the Services and to take all organizational measures to ensure the collaboration of its staff with that of Elum.
7.9. Elum will assign to each User that it has previously authorized in writing to access the Elum Solution, a user ID and a password to access the said Elum Solution, the use of which is exclusively reserved to him.
7.10. Users IDs and passwords for the exclusive use of Users are intended to protect the integrity and confidentiality of the Elum Solution and the integrity and confidentiality of Client Data.
7.11. The replacement of a natural person designated as a User may take place free of charge at the Client’s request.
7.12. The Client shall ensure that no person other than the Users accepted by Elum may use the Users IDs and passwords provided by Elum.
7.13. Generally speaking, the Client is responsible for the security of the individual access stations to the Solutions

Article 8. Price
8.1. The Elum Solution, the Operating Platform and the Services are provided at Elum’s rates in force on the day the order is placed, according to the estimate previously established by Elum and accepted by the Client.
8.2. Prices are net and exclusive of tax, subject to the additional payment of the legal value added tax.
8.3. Any additional costs for packaging and special packaging requested by the Client will be invoiced separately. Elum will not take back this packaging.
8.4. All taxes, customs duties, charges and import and export levies related to the shipment shall be borne by the Client.
8.5. The conditions for determining the cost of services whose price cannot be known a priori nor indicated with exactitude, as well as the method of calculation of the price making it possible to verify the latter, will be communicated to the Client or will be the subject of a detailed estimate, at the Client’s written request.

Article 9. eCare Services
9.1. Elum provides to its Clients optional Customer Support Services known as “eCare Services”, designed to enhance the performance, reliability and long-term operability of the Elum Solution through structured levels of support, training, and access to Elum’s digital platforms. The eCare Services form part of the Services and are governed by this Article and the schedule “eCare Service Description & SLA”, which constitutes an integral part of the Contract.
9.2. Each Client benefits by default from the Basic Plan, provided free of charge. Subscription to higher Service Plans (Core or Advanced) requires the Client’s express acceptance through an Order Form or Commercial Proposal duly signed and accepted by Elum. The eCare Services are optional and do not replace or modify Elum’s warranty obligations as set out in Article 17. They may be subscribed at any time during the term of the Contract.
9.3. The eCare Services consist of Customer Support Services provided remotely or on-site, including technical assistance, incident management, preventive and corrective support, training, and access to the Elum Academy and to the ePowerMonitor platform. Each Service Plan defines the corresponding scope of assistance, service levels, and response times applicable to the Client, as detailed in the schedule “eCare Service Description & SLA”.
9.4. The commercial conditions, subscription duration, renewal mechanisms and applicable discounts are defined in the schedule “eCare Service Description & SLA” and/or in the relevant Order Form or Commercial Proposal. Any modification of such financial or commercial conditions shall be effected only through an update of the said schedule.
9.5. In case of any discrepancy between this Article and the schedule “eCare Service Description & SLA”, the provisions of the schedule shall prevail.

Article 10. Payment Terms
10.1. The Elum Solution, the Operating Platform and the Services are payable according to the frequency and terms referred to in the Order Form and/or the Commercial Proposal.
10.2. Any delay in payment of the sums due to Elum will result, after a formal notice, in the application of default interest equal to 3 times the legal interest rate from the date on which payment of the invoice is due, as well as the payment of a lump sum of forty (40) euros due as recovery costs in accordance with the applicable regulations.
10.3. In the event of non-payment following the agreed deadline, Elum reserves the right, following a formal notice sent by registered letter with acknowledgement of receipt which has remained unsuccessful, to suspend the supply of the Elum Solution and the Services in progress and generally the continuation of the Contract performance until full payment has been made and/or to terminate the Contract ipso jure.

Article 11. Ownership of Data and New Data
11.1. The Client grants Elum, where necessary, a non-exclusive, worldwide and free right to host, cache, copy and display the Data for the sole purpose of performing the Services and using the Elum Solution.
11.2. This right to use the Client Data by Elum shall automatically terminate upon termination of this Contract, unless it is necessary to continue hosting the Data and processing them, in particular as part of the implementation of Reversibility operations.
11.3. The Client represents and guarantees that he has all the authorizations necessary for the use of the Data as of the date of the Contract and throughout the term of the Contract and that he can freely grant Elum the use of the Data in the terms referred to above.
11.4. The Client is solely responsible for the quality, accuracy, lawfulness and relevance of the Data it communicates to Elum for the purposes of using the Elum Solution and performing the additional Services.
11.5. The Client is and remains the owner of all the Data that he transfers to Elum or that he uses directly through the Elum Solution.
11.6. Consequently, the Client releases Elum from any liability towards third parties resulting from the Client’s failure to comply with any of its obligations towards third parties and will therefore guarantee Elum in the event of a request or recourse against it.
11.7. Elum will only keep the Data for as long as necessary for the performance of the Services or for any additional period required by law and/or agreed with the Client.
11.8. The Client shall take care not to place while using the Elum Solution any Data that would require Elum to comply with specific laws or regulations other than those expressly provided for in the Contract.

Article 12. Personal Data
12.1. If the Data transferred to Elum in the context of the performance of this Contract includes Personal Data, the Client guarantees Elum that it has carried out all the obligations incumbent upon it under Directive 95/46/EC , the French Law No. 78-17 of 6 January 1978 known as the Data Protection Act (amended by the decree of 4 November 1991 and by the law of 6 August 2004 transposing Directive 95/46/EC), and the General Data Protection Regulation (EU) 2016 / 679 (GDPR), hereafter the “Regulation” applicable to this Personal Data and in particular that he has, in his capacity as controller of the said Personal Data within the meaning of the Regulation, informed the natural persons concerned by the use that is made of their Personal Data.
12.2. More generally, it shall be the Client’s sole responsibility to comply with any local legislation applicable to the processing of Personal Data and requiring any prior authorization.
12.3. In this respect, the Client guarantees that Elum will under no circumstances be liable for the Client’s failure to comply with its legal or contractual obligations with regard to Personal Data.
12.4. The Client shall also inform Elum, which acts as subcontractor on the Client’s instructions within the meaning of the Regulations, of all the technical measures to be implemented in order to ensure adequate processing of the Personal Data that may be processed within the framework of the Contract.

Article 13. Intellectual Property
13.1. Elum grants the Client a personal, non-exclusive, non-negotiable and non-transferable right to use the Elum Solution for the duration of the Contract and for the entire world.
13.2. The Client shall use the Elum Solution only in accordance with its needs and only within the framework of this Contract, to the exclusion of any other purpose.
13.3. The right of use means the right to implement the Elum Solution in accordance with its intended purpose, via a connection to an electronic communication network.
13.4. The right of use is limited to the duration agreed in the order confirmation; in the absence of such an agreement, the right of use is limited to the lifetime of the associated equipment.
13.5. The right of use granted by Elum in the Contract does not entail the transfer of intellectual and material property in the Elum Solution to the Client.
13.6. Elum is and remains the owner of the property rights relating to all or any part of the Elum Solution, of any data, material, and/or deliverable provided by Elum to the Client for the purpose of performing its Services.
13.7. Consequently, the Client may under no circumstances make the Elum Solution available to a third party, and strictly prohibits any other use of the Elum Solution, in particular and without this list being restrictive, any adaptation, modification, translation, arrangement, dissemination, decompilation.
13.8. Generally, each Party shall retain ownership of all of its intellectual and material property rights on the software, software packages, programs, development and analysis tools, creations, inventions, distinctive signs, know-how, methods, documents, data, databases, or the documentation associated with each of these elements, used or implemented in connection with the provision of the Elum Solution and the Services (all of these rights and elements hereinafter referred to as the “Elements“).
13.9. Each Party undertakes not to prejudice, or in any way call into question, the rights of the other Party in the Elements belonging to it.
13.10. The above provisions also apply to changes or additions to the Elements or the accompanying documentation.

Article 14. Confidentiality
14.1. All documents, information and data exchanged between the Parties and of which they have knowledge in the performance of the Contract, including information relating to the performance of the Services, the Elum Solution and its documentation (the “Confidential Information”), shall be considered confidential.
14.2. The Parties undertake, therefore, both on their own behalf and on behalf of their employees, servants and advisers, of whom they undertake not to disclose the said documents and information, to any person and in any form whatsoever, and not to exploit them for personal purposes and/or outside the performance of this Contract, except with the express, prior and written authorization of the other Party or by order of the courts or of an administrative or supervisory authority.
14.3. This confidentiality obligation is valid for the entire duration of the Contract and also runs for a period of five (5) years from the termination of the Contract for any reason whatsoever.
14.4. By exception, shall not considered to be confidential under this Contract, data, information and/or documents which :
At the time of their communication, would have fallen into the public domain otherwise than as a result of one of the Parties;
Were already known to the recipient Party before they were communicated, with the onus on the recipient Party to provide any justification;
14.5. Further, Elum has the right to mention, in the context of commercial references, the name of the Client as long as the latter is a client, and his logo and/or trademark, provided that no details relating to the Services performed are included.

Article 15. Duration and termination of the Contract
15.1. The Contract shall come into force under the conditions provided for in Article 2 hereof.
15.2. Unless otherwise provided in the Order Form or the Commercial Proposal, the Contract is concluded for a period of one (1) year.
15.3. The Contract shall then be renewed, under the same terms, by tacit renewal for a period of one (1) year unless notice of termination of the Contract is sent by one of the Parties by registered letter with acknowledgement of receipt at least three (3) months before the end of the current contractual period.
15.4. Termination of the contract for any reason whatsoever shall not lead to the end of the compliance guarantee on the Elum Operating Platform, which shall remain applicable.

Article 16. Reversibility
16.1. In the event of termination of the Contract for any reason whatsoever, Elum undertakes to insure the operations which will enable the Client, at its choice, to take back the Data, to have them taken back by a third party or to destroy them (these operations are hereof referred to as the “Reversibility”).
16.2. The Client may only demand Reversibility if the invoices previously issued by Elum have been fully paid.
16.3. The Client undertakes to cooperate actively with Elum to ensure Reversibility.
16.4. The Client will inform Elum by registered letter with acknowledgement of receipt of its willingness to implement the Reversibility of the Data and of the chosen option following prior notice notified to Elum at the latest three (3) months before the end of the Contract.
16.5.The provisions of the Contract shall survive the term or termination of the Contract for the purpose, if any, of finalizing Reversibility transactions.

Article 17. Warranty
17.1. Elum Solution Compliance Warranty
17.1.1. Elum offers the Customer, in the event of defects, breakdowns or malfunctions of the Operating Platform, a warranty of five (5) years from the date of purchase for the central calculation module as well as a warranty of two (2) years from the date of purchase on third party equipment, i.e. power supplies, meters, UPS, extension modules and routers. All other equipment supplied or resold by Elum (e.g. terminal blocks, cable sets, etc.) are excluded from this warranty and are covered by their manufacturer’s warranty terms and conditions.
17.1.2. This warranty does not cover:

• Fragile parts or parts showing signs of normal use;
• Minor deviations from the specifications in the data sheets which are negligible for the value and functioning of the Operating Platform.

In any case, the defective equipment and/or parts forming the defective Operating Platform become the property of Elum.
17.1.3. This warranty must be exercised in accordance with the procedure set out below:

• Following the discovery of a defect, failure or malfunction on an Operating Platform, the customer must send an email to the address support@elum-energy.com indicating his name, the type and serial number of the Operating Platform, a precise description of the problem encountered and the events preceding the failure, defect or malfunction of the Product as well as the address to which the Operating Platform should be returned;
• Elum, after receipt of the email, will indicate by return email if the failure, defect or malfunction falls within the scope of the present warranty;
• If the failure, defect or malfunction falls within the scope of this warranty:
• If the failure, defect or malfunction is related to a malfunction of the software linked to the Operating Platform and can be repaired remotely, the troubleshooting will be done remotely;
• If the failure, defect or malfunction is related to the Operating Platform itself or to one of its components, the Operating Platform will be returned to Elum headquarters.

Once the Operating Platform has been received, Elum shall examine whether or not the claim is actually justified. If this is not the case and/or if the failure, defect or malfunction falls into one of the categories of exclusion referred to in article 17.4 below, Elum reserves the right to claim compensation for the costs incurred for the inspection of the equipment;

17.1.4. The return of the Operating Platform is made at the Customer’s risk and peril, and Elum shall not reimburse the shipping, reshipment, transport or routing costs of the latter.
17.1.5. Warranty services do not interrupt or extend the aforementioned warranty period.
17.1.6. The Parties acknowledge that Software may contain errors and that it is not always necessary to correct them.
17.1.7. Elum guarantees that during the period of the Order Form relating to the provision of the Elum Solution to the Client, the Elum Solution will essentially conform to the description contained in the Commercial Proposal.
17.1.8. This limited warranty only covers problems of non-compliance of the Elum Solution with the description made in the Commercial Proposal and which have been the subject of a written notification sent by the Client to Elum. Elum undertakes to remedy, with all reasonable diligence, the problems of non-compliance of the Elum Solution with the Commercial Proposal.
17.1.9. If the correction of these defects is not possible or takes too long, the Client may terminate the Contract and obtain reimbursement of the fees (as provided for in the applicable Order Form) paid by the Client for the use of the Elum non-conforming Solution.
17.1.10. Elum shall be exempt from this limited warranty and additional invoicing may be due in the event that Elum’s intervention would be required because the non-compliance is the result of an abuse, accident, improper use of the Elum Solution, unauthorized alteration of the Elum Solution by the Client or by any third party.
17.1.11. The Client acknowledges that access to the Elum Solution may be interrupted due to the technical hazards inherent to the Internet.
17.1.12. The Client is also informed that access to the Elum Solution may be suspended when Elum’s intervention is required to ensure the maintenance of the Elum Solution and its proper operation.
17.1.13. Elum cannot therefore be held responsible for any unavailability or slowdown of the Elum Solution.
17.1.14. Elum makes no other express or implied warranties with respect to the Elum Solution, including, in particular, any implied warranties of merchantability, fitness of the Elum Solution for a particular purpose of the Client.
17.1.15. Elum does not guarantee the performance obtained in terms of energy savings by using the equipment.
17.1.16. Elum does not warrant that the functionality of the Elum Solution will meet the Client needs or requirements. It is the Client’s responsibility to ensure that the Elum Solution meets its needs and requirements.

17.2. Elum Solution Counterfeit Warranty
17.2.1. Elum guarantees that it has all the intellectual property rights required to conclude this Contract.
17.2.2. In this respect, Elum guarantees that the Elum Solution and the Services provided pursuant to this Contract do not infringe the rights of third parties and do not constitute an infringement of a pre-existing work.
17.2.3. Elum guarantees the Client against any infringement action that may be brought against it by any natural or legal person claiming an intellectual property right relating to the Elum Solution.
17.2.4. Elum shall be responsible for all convictions in the main proceedings, costs and accessories to which the Client may be sentenced by a court decision that has become final and conclusive, condemning the Client for infringement.
17.2.5. Elum shall bear the costs relating to any conviction for infringement, provided that:

• the Client shall notify Elum within thirty (30) days of any notification it receives of an alleged infringement of an intellectual property right relating to the Elum Solution;
• the Client accepts that Elum may take control of the preparation and defense, raise the legal arguments useful to the defense and implement any negotiation with a view to a settlement;
• the Client accepts that Elum may, if it sees fit, request the withdrawal of the applicant, it being specified that no additional expenses are incurred by the Client as a result.

17.2.6. Following notification of any action relating to the intellectual property rights of the Elum Solution or following notification of any information or allegation relating to the same rights, Elum may, at its choice and expense, either (a) replace or modify all or any part of the Elum Solution so that it is no longer infringing or (b) obtain for the Client the right to continue using the Solution.
17.2.7. If Elum considers that none of these measures could reasonably be envisaged, Elum may unilaterally decide to terminate the Contract and refund to the Client the fees paid in advance and not used by the Client for the Elum Solution.
17.2.8. Elum shall not be bound by any of its obligations under this Article if the action is brought as a result of: (a) the alteration or modification of the Elum Solution by a person other than Elum (b) the continuance of an alleged infringing activity by the Client even though he was informed of its infringing nature or the continuance of an alleged infringing activity by the Client whom did not use a modified, non-infringing version, of the Elum Solution sent by Elum (c) the integration into the Elum Solution of modifications desired by the Client (d) the continued use by the Client of an old version of the Elum Solution whereas Elum recommended and made available to the Client the latest version of the Elum Solution.

Article 18. Responsibility
18.1 In no event shall Elum be liable for any indirect damages suffered by the Client that may arise out of or in connection with the performance of this Contract and its consequences.
18.2. Indirect damages include, but are not limited to, loss of gains or profits, loss of data, loss of opportunity, commercial damages, the consequences of complaints or claims of third parties against the Client, notwithstanding the fact that Elum has been advised of the possibility of their occurrence, with the exception however of the provisions of Article 16 of the Contract relating to guarantees granted by Elum.
18.3. In any event, Elum liability in the event of damage to the Client, for whatever reason and whatever the legal basis invoked or retained, all damages combined and accumulated, shall be strictly limited to the reimbursement of the amount of the sums actually paid by the Client on the date of occurrence of the event giving rise to liability pursuant to the Order Form being at the origin of Elum liability.
18.4. In addition, Elum liability may under no circumstances be sought in the event of:

• use of the Elum Solution in a manner not provided for in this Contract or not in accordance with this Contract;
• use of the Operating Platform in a manner that does not comply with the requirements of Elum and/or the manufacturer of the Operating Platform (and in particular the User Manual of the concerned Solution);
• damage attributable to products sold by third parties, non-compliant connections, non-approved supplies, modifications to the Operating Platform, an accident;
• intervention of a third party (Client or any person mandated by the latter) to access or repair the Operating Platform, in particular in the event of a remote takeover of a third party.;
• electrical, climatic, atmospheric or other defective environment.
  modification or deletion of all or part of the Data or information accessible via the Elum Solution not performed by Elum;
• of using all or part of the Elum Solution when Elum, following a difficulty or for any other reason whatsoever, had recommended suspending its use;
• use of the Elum Solution in an environment or configuration that does not meet Elum technical requirements, or in connection with third party programs or data not expressly endorsed by Elum;
• the occurrence of any damage resulting from the fault or negligence of the Client, or which the latter could have avoided by calling on the advice of Elum;
• use in connection with programs not provided or endorsed by Elum that may affect the Elum Solution or Client Data.

18.5. Elum liability may also not be pursued with regard to the certifications of products offered by Elum, it being understood between the parties that Elum uses service providers in order to acquire the certified equipment. In any case, Elum makes its best efforts to ensure that the equipment of its service providers is certified.

Article 19. Force majeure
19.1. With the exception of payment obligations, the Parties may not be held liable if the non-performance, delay or suspension of performance of their obligations by one or other of the Parties of one or all of their obligations under this Contract results from a case of force majeure as defined below.
19.2. Are considered as cases of force majeure or fortuitous events, in addition to those retained by the French courts: interruption, disruption or suspension of telecommunications networks and the Internet, poor quality of electricity, cases of electronic viruses or electronic infiltration, bad weather, fires, government or legal restrictions, legal or regulatory changes to forms of marketing.
19.3. The Party wishing to avail itself of a case of force majeure shall inform the other Party as soon as possible and undertake to do its best to limit the period of suspension.

Article 20. Non-solicitation
20.1 The Client undertakes not to hire, attempt to hire or have employed directly or indirectly an Elum employee during the performance of this Contract and during the twelve (12) months following its termination for any reason whatsoever.
20.2. In the event of non-compliance with this clause, the Client shall pay Elum a compensatory indemnity equal to one (1) year’s gross salary of the employee, including the related social charges, and shall compensate Elum for any other loss suffered in this respect.

Article 21. Miscellaneous
21.1. Invalidity and independence of clauses
If any provision of the Contract is declared invalid or unenforceable by law, regulation or final court decision, it shall be therefore deemed as unwritten; the other provisions of the Contract shall remain in full force and effect.
The Parties undertake, as far as possible, to move closer together in order to establish a new clause whose spirit and letter will be as close as possible to the old clause declared null and void or lapsed.
21.2. Assignment of the Contract
Unless Elum has given its prior consent, the Client undertakes not to transfer the Contract or any of its rights and obligations to a third party for any reason and in any form whatsoever, whether for a consideration or free of charge, including in the event of a change of control, and not to entrust the performance of all or part of its contractual obligations to a third party.
21.3. Independence of Parties
No provision of the Contract may be interpreted as creating any subsidiary or joint venture or de facto company between the Parties.
21.4. Written form
Any amendment to the Contract shall only be valid if made in writing. This also applies to any waiver of the requirement for a written amendment.
Additional agreements that are only concluded verbally are not valid.
All declarations and communications by the Client relating to the Contract that are of legal importance, such as the setting of deadlines, complaints about defects, declarations of withdrawal or reduction, must be submitted in writing in the form of a letter, email or fax.
21.5. Governing law and jurisdiction
Governing Law. This Agreement will be governed by and construed in accordance with the laws of France without regard to its conflict of laws principles that would require the application of the laws of another jurisdiction.

Jurisdiction. If a dispute, controversy or claim cannot be settled by the parties within thirty (30) days of written notice from either party to the other of such dispute, controversy or claim, then, except as set forth below, any dispute, controversy, or claim arising under, out of, or relating to this Agreement, and any subsequent amendments of this Agreement, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, will be finally determined by the Paris Commercial Court (France).

Article 22. Exportation and regulatory requirements
For the purposes of this article, “Foreign Trade Regulations” refers in particular to Regulations (EU) No. 833/2014 and (EC) No. 765/2006, as amended, and more broadly to any applicable regulations binding on the parties, including, but not limited to, national and international export [re-export] control regulations, as well as customs regulations, including embargoes and other sanctions.

The parties shall comply with the Foreign Trade Regulations.

Accordingly, ELUM may refuse to sell a product if its final destination, whether direct or indirect, is a country subject to international sanctions or an embargo.

Each party shall have the right to refuse to perform its obligations under the contract and to terminate said contract to the extent that compliance with the Foreign Trade Regulations makes it impossible to fulfill the contractual obligations.

The Client shall provide, upon request from ELUM, all necessary information and documents required for compliance with the Foreign Trade Regulations or requested by the relevant authorities in this regard. If the Client fails to provide such information within a reasonable timeframe set by ELUM, ELUM may, at its sole discretion, refuse the order, terminate the contract, or refuse to perform its obligations under the contract.

To the extent that the Client purchases from ELUM products falling within the scope of Article 12g of Regulation (EU) No. 833/2014 or Article 8g of Regulation (EC) No. 765/2006, as amended, the following provisions shall apply:

• The Client undertakes not to sell, export, or re-export, directly or indirectly, to the Russian Federation or Belarus, or for use in the Russian Federation or Belarus, any goods or technology supplied under this contract that fall within the scope of Article 12g of Regulation (EU) No. 833/2014 or Article 8g of Regulation (EU) No. 765/2006, as amended from time to time.
• The Client shall use its best efforts to ensure that the objective of Clause X.4.1 is not circumvented by third parties further down the commercial chain.
• In the event of a breach by the Client, including through negligence, ELUM shall be entitled to immediately cease further deliveries to the Client and to terminate the contract.

The Client
First Name :
Last Name :
Title :
At :

Schedule – eCare Service Description

1. Purpose and scope
The present schedule defines the content, service levels, exclusions and applicable commercial conditions of Elum’s eCare Services program.
The eCare Services are customer support and maintenance assistance services designed to support Clients in the operation, monitoring and maintenance of the Elum Solution through tiered service plans offering different levels of availability, responsiveness and technical engagement.
This schedule forms an integral part of the General Terms and Conditions (GTCs) and may be updated by Elum from time to time to reflect the evolution of its service offering, without requiring an amendment to the GTCs, provided that such updates do not materially reduce the level of service of a subscribed plan during its contractual period.

2. Structure of eCare Services
Elum offers three (3) standard Service Plans under the eCare program:

• eCare – Basic – included free of charge;
• eCare – Core – plan offered on a subscription basis; and
• eCare – Advanced – plan offered on a subscription basis with extended scope and faster service levels.

Additional Customer Support Services may be ordered independently through the purchase of Support Pack or Remote/On-Site Services.

4. Optional additional services

5. Service levels
(a) Availability
Support is available during Business Hours, defined as 9:00 a.m. to 6:00 p.m. local time, Monday through Friday (or on other applicable business days within the relevant region).

(b) Incident handling
Elum shall acknowledge receipt of any Client Incident within two (2) Business Hours (starting from Client notification reception) and shall use reasonable efforts to provide a first technical assessment and resolution according to the indicative response times corresponding to the subscribed Service Plan.

(c) Maintenance operations
Preventive maintenance, including remote updates and corrective patches, shall be performed outside plant production hours whenever feasible.
Where such maintenance is expected to impact system availability, Elum shall notify the Client at least two (2) Business Days in advance.

(d) Client cooperation
The Client shall provide timely access, data and technical information necessary for the proper performance of the eCare Services. Any delay or failure to cooperate may suspend Elum’s obligations and reset indicative timelines.

6. Reporting
Elum shall provide Clients subscribed to the eCare – Core and eCare – Advanced plans with bi-annual service reports summarising:

• Incidents handled and their categorisation;
• Maintenance and updates performed; and
• Training or certification sessions completed.

7. Exclusions
The eCare Services do not include or cover:

• Supply or replacement of physical hardware or spare parts;
• Failures, interruptions or damages caused by third-party software, hardware or network issues;
• Predictive maintenance or interventions not expressly included in the subscribed Service Plan;
• On-site interventions unless separately ordered under “On-Site Services”;
• Incidents caused by unauthorised modification of parameters, configuration or system settings by the Client or third parties acting on its behalf;
• Support outside Business Hours unless otherwise agreed in writing or provided under an additional order.

8. Commercial conditions

eCare Subscription is entered into for an initial period of twelve (12) months, commencing on the Subscription Start Date. Thereafter, the Subscription shall automatically renew for successive periods of twelve (12) months unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current subscription term.

• Service Plans are available for one (1), three (3), or five (5) years.
• All prices are exclusive of taxes and payable in advance unless otherwise agreed in the Order Form.
• Pricing may vary depending on project size, configuration or market conditions, as reflected in the applicable Commercial Proposal.
• Renewal shall be subject to the then-current pricing and service specifications as published by Elum in the latest version of this schedule.

9. Hierarchy and Interpretation
In the event of any inconsistency between this Schedule and the applicable Order Form or Commercial Proposal:

• the Order Form or Commercial Proposal shall prevail for pricing and commercial conditions; and
• this schedule shall prevail for operational scope and service-level provisions.