Service Contract

GENERAL TERMS AND CONDITIONS OF SALE FOR MICHELIN MYINSPECTION DIGITAL SERVICES

PREAMBLE

These General Terms and Conditions of Sale, the Service Contract containing the Specific Terms and Conditions of Sale and any Appendices that may be attached and included (collectively the “Contract”), define the general terms and conditions under which Manufacture Française des Pneumatiques Michelin (“Michelin”) agrees to supply and the Customer agrees to subscribe to MyInspection Basic, MyInspection Pro and MyInspection Expert digital service offers comprising the smartphone application and associated web portal.

ARTICLE 1.  ENTIRE UNDERSTANDING AND CONSENT INCLUDING ELECTRONIC

In giving your consent below, by ticking the relevant box or signing the Service Contract to which these General Terms and Conditions of Sale are attached, you declare that you have the authority to represent and bind the Customer and that you agree that the Customer is concluding a transaction, whether by electronic or traditional signature or directly online, and that your consent below represents your valid digital signature for this transaction.  In consequence, the Customer expressly agrees to comply with the terms and conditions of the Contract. The Customer further agrees to use an electronic signature to sign any additional documentation we might ask you to sign electronically, and the Customer also agrees that we may use electronic documents rather than paper documents to send information about the Services that the Customer receives from us.

To complete the online Contract, by clicking on “I ACCEPT”, I acknowledge and accept that I have the authority to represent the Customer and have read the information about the use of electronic records and I authorise the use of electronic records and signatures in place of written documents and signatures by hand.

This Contract as defined in the preamble, constitutes the entire agreement between the Parties regarding the subjects addressed in these documents, replacing any prior agreement, written or oral, between the Parties regarding these subjects. 

In case of conflict or divergence between these terms and conditions and commercial conditions, the commercial conditions will take precedence.   

ARTICLE 2. DEFINITIONS

The “Affiliated Companies” are, in relation to (i) Michelin and (ii) the Customer, as appropriate, any company controlling the above parties, controlled by them or under joint control with them, whether said control is direct or indirect.

“App” is the MyInspection Basic, MyInspection Pro or MyInspection Expert mobile application enabling the Customer to perform inspections of its choice digitally, with various functions according to the range chosen.

“Working Day” is a day that is not Saturday, Sunday or a public holiday in the country where Michelin operates.

“Content” is all the documents, texts, information, data, software, access codes, execution codes, images, audio and video material, in whatever medium and format, included or used with the application and/or the Web portal, other than the Customer’s data.

“Year of the contract” is the period of 12 months from the date on which these General Terms and Conditions of Sale and the Service Contract come into force and each subsequent 12 month period.

“Customer data” are the Customer’s Technical and Personal Data.

“Customer personal data” are the Customer’s and/or the User’s personal data.

“Documentation” is the documents that Michelin makes available to the Customer on occasion describing the Services and the infrastructure required, as necessary.

“Date of entry into force” is the date shown in the Service Contract.

“Conditions of use” is the agreement of the Customer and end user to the General conditions of use available online. This agreement must be given by the Customer as well as all authorised users when downloading or subscribing to the services.

“Intellectual Property” is any patent, patent application, copyright, trade name, trade mark, service mark, trade secret and any request or right to request its registration, Internet domain names, logos, designs, slogans and general intangible assets of that nature, software or computer applications, tangible or intangible proprietary information, know-how, procedures, formulas, algorithms, and any other right of intellectual property, registered or unregistered.

“Product under Licence” is the Application and/or the Web portal and/or the Content as well as any error correction or update that Michelin may provide or carry out in relation to the Web portal and/or the Application.

“Normal Opening Hours” are from 8 a.m. to 6 p.m., Paris local time, every Working Day.

“Personal data” is any information concerning an identifiable or identified natural person, pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 repealing Directive 95/46/EC, applicable from 25 May 2018, including obligations deriving from the application of local legislation on personal data protection and any updates to that legislation, laws adopted in the European Union on the condition that the identifiable person is directly or indirectly identified, by one or more characteristics specific to their physical, physiological, mental, economic, cultural or social identity; or as defined by any other applicable law or regulation.

“Subscription fees” are the subscription fees payable by the Customer to Michelin for the Services, as defined in the Service Contract.

“Subscription period” has the meaning given in article 8 (the initial subscription period as well as any subsequent renewal period).

“Technical data” are all the data entered by the Customer and/or the User and/or Michelin on the Customer’s behalf in each of the Services offered by Michelin in direct or indirect relation to tires and/or vehicles and/or their use, as well as recommendations relating to the Customer’s fleet issued by these Services.

“Limits of use” are the limits of use applicable to the Customer’s use of the Products or Services under Licence, as specified in the applicable Service Contract (for example User numbers, the number of sites, and so on).

“Web Portal” is a MyInspection Basic, MyInspection Pro or MyInspection Expert Web software application made available by Michelin to the Customer enabling the latter to digitally manage Users, Customer Data and access to the Selected Services for its own needs, with various functions according to the range chosen.

“User” is any Customer employee or subcontractor authorised to access and/or use the Services in its name.

ARTICLE 3. USE OF SERVICES UNDER MICHELIN LICENCE AND INTELLECTUAL PROPERTY RIGHTS

If the Services involve the Customer using a Product or Products under Licence, during the Subscription Period and subject to the terms and conditions of the Contract and applicable commercial conditions and the payment of all Subscription Fees owing, for each Product under Licence included in the Services to which the Customer subscribes, Michelin (i) grants the Customer a non-exclusive and non-transferable right of access to and use of the associated Product under Licence solely to perform its internal operations, and (ii) will supply the Services to which the Customer has subscribed. User accounts may not be shared or used by more than one person. The Customer is solely responsible for connecting the Customer’s computers to a telecommunications service that provides secure access to the internet. The Customer undertakes to comply with the Limits of Use stipulated in the General Terms and Conditions of Use (as applicable).

As far as possible, we will give you, and you will be responsible for, control of the usernames and passwords enabling you, your employees and independent contractors to access the services.  You must quickly inform Michelin of all unauthorised use of your username or password, and you will remain responsible for all use (whether or not authorised by you). Until this notification is made, Michelin will not be responsible for any unauthorised use. Michelin may not be held responsible for any loss or damage resulting from unauthorised use of a username or password.  If this applies to the Services supplied to you, you must not sell, transfer or otherwise allow access to the Services, except in the cases expressly provided for in this document. Any use of the Services by one of your independent contractors must be for commercial purposes, and you remain responsible for all acts or omissions by these independent contractors.

The Customer undertakes:

– that each User keeps a secure password to use the Services and Documentation and each User keeps their password completely secure and confidential;

– to keep up-to-date a written list of current Users and provide it to Michelin within 5 Working Days of receiving a written request from Michelin, at any time;

– to allow Michelin to audit the Services to check that the Customer is complying with the Limits of Use.  This audit may only be carried out once a quarter, at Michelin cost, and reasonable notice of the exercise of this right must be given so as to avoid significant interference in the Customer’s usual activity;

– if an audit shows that a user account has been shared with a person who is not a user, then, without prejudice to Michelin’s other rights, the Customer must quickly deactivate these passwords and Michelin will not have to provide new passwords for this person; and

– if an audit shows that the Customer has not paid subscription fees to Michelin then, without prejudice to Michelin’s other rights, the Customer must pay Michelin an amount equal to the non-payment as calculated according to the Michelin Services prices in force within 10 Working Days of the audit in question.

The Customer must not (and must ensure that the Users do not) store, distribute, or pass on viruses, trojans, or any other material when using the Services and Products under Licence that:

– is illegal, harmful, threatening, defamatory, obscene, counterfeit, harassing or racially or ethnically offensive;

– facilitates illegal activity;

– shows sexually explicit images;

– encourages illegal violence;

– is discriminatory on the basis of race, gender, colour, religious belief, sexual orientation or a deficiency; or

– is otherwise illegal or causes damage or injury to a person or property;

and Michelin reserves the right, without prejudice to its other rights in relation to the Customer, to deactivate access for the Customer and/or any User involved with any material infringing the provisions of this article.

The Customer must not:

– except to the extent permitted by any applicable law which cannot be excluded by agreement between the parties and except to the extent expressly authorised by this understanding:

i. attempt to copy, modify, create derived work, frame, mirror, republish, upload, display, pass on or distribute all or part of the Products and/or the Documentation under Licence (as applicable) in any medium or format or by any means whatsoever; or

ii. attempt to decompile, reverse compile, disassemble, reverse engineer or reduce in any other way to a human-perceptible form all or part of the Products under Licence;

– access all or part of the Services, Products under Licence or Documentation in order to create a product or service that competes with the Services, Products under Licence and/or the Documentation; or

– use the Services, Products under Licence and/or the Documentation to supply services to third parties; or

– licence, sell, rent, hire, transfer, cede, distribute, display, release or otherwise exploit commercially the Services, Products under Licence and/or the Documentation, or make them available to any third party except from the Users; or

– attempt to obtain, or help a third party to obtain, access to the Services, Products under Licence and/or the Documentation, other than under the conditions provided for in this article.

The Customer will make every effort to prevent any unauthorised access to the Services, Products under Licence and/or the Documentation or any unauthorised use of the Services, Products under Licence and/or the Documentation and, in case of unauthorised access will inform Michelin without delay.

The rights granted in this article are granted solely to the Customer and are not considered granted to an Affiliate of the Customer.

The Customer must comply with the conditions and limits of use stipulated in this Contract and is responsible for its Users’ compliance with the conditions and limits of use stipulated in this Contract.

All rights not expressly granted to the Customer are reserved by Michelin or by its licensors and the Customer must not infringe against Michelin’s intellectual property rights.

Michelin retains all rights, title and interest relating to all Intellectual Property Rights over all Products under Licence and all updates, copies or derivatives of one of the elements above.

No provision of this agreement may be interpreted as transferring rights over a trade name or mark or as granting a licence to use a trade name or mark, except in the cases expressly stipulated in this document. Any use of the parties’ trademarks is to the express benefit of the owner of these trademarks.

ARTICLE 4.  CUSTOMER DATA

 4.1.  Customer guarantees

The Customer declares and guarantees that all Customer Data provided and/or uploaded to Michelin are true, accurate, up-to-date and complete in every respect.  

4.2.  Right to use customer data

The Customer expressly authorises Michelin and its Affiliated Companies and/or subcontractors, directly or indirectly through third party contractors, to store, access, process, copy, execute, purge and/or wipe Customer Data (including to avoid all doubt) stored in a Michelin database, to the extent that they are concerned with the Services supplied by Michelin and/or to the extent necessary for the execution of any obligation under this Contract, in compliance with Customer Personal Data.

4.3.  Right to use technical data 

Technical data may be used worldwide by Michelin, its Affiliated Companies and/or subcontractors, for the purpose of:

(i) meeting its obligations under this agreement and/or offering additional services to the subscriber such as its own customized reports from the consolidated data; and/or

(ii) creating and/or developing any database that may be used for purposes of consolidated data reporting, statistical analysis, for reference and/or benchmarking, marketing, research and/or developing future products, during the period of this Contract and at any later time within the framework of Michelin and its Affiliated Companies and/or subcontractors, on condition that these Technical Data are anonymized (meaning that no direct or indirect link between these data and the Customer can be established).

With the exception of the right granted by paragraph (ii) above, which is granted for the maximum legal period of protection of intellectual property rights, the right to use the Technical Data expires on termination of this Contract, whatever the reason.

4.4. Compliance with applicable personal data protection legislation 

Each party complies with obligations under the applicable privacy and data protection legislation, including those under Regulation (EU) 2016/679 of the European Parliament, and in particular obligations deriving from applicable local legislation on privacy and any updates to that legislation and laws adopted in the European Union.  The parties agree actively to collaborate so as to enable each party to comply with its obligations in completing the necessary formalities, such as maintaining the Data Controller’s log and, if necessary, obtaining the authorisations required from the competent data protection authorities. The parties will take no action that might lead to the other infringing any applicable data protection legislation.  Michelin, its Affiliated Companies and/or subcontractors may act as the Holder of data handling rights (for example for processing in the context of executing the Services), or as the Data Controller (for example when managing customer relations).  Michelin, its Affiliated Companies and/or subcontractor(s), as professionals, undertake to advise and cooperate with the Customer, particularly with regard to processing methods, managing requests from persons exercising their rights, performing impact studies, and more generally to meeting the Customer’s obligations concerning rules applying to personal data. In case of an audit, Michelin, its Affiliated Companies and/or subcontractors undertake to provide the Customer with all the information it might need or that might prove necessary. 

4.5. Processing by Michelin, its Affiliated Companies and/or subcontractor(s) 

In compliance with this Contract, the Parties agree that the Customer and its affiliated companies are Controllers for processing in the context of the Services, and that Michelin, its Affiliates and/or subcontractors are the Processors with regard to regulations applying to Personal Data. Michelin will handle Personal Data for the Processing purposes described in the General Terms and Conditions of Use of each Service, including the following information:

– Processing purpose

– Processing duration

– Processing type

– Type of personal data processed

– Categories of person involved

The Personal Data sent by the Customer, together with the Personal Data collected or processed in the context of supplying the Services, will not be used for any operation or integration into a file other than those authorised by this Contract, whatever the nature of the operation. Michelin, its Affiliated Companies and/or subcontractors undertake:

(i) to act only on the Customer’s documented instructions and, therefore, only to process the Customer’s Personal Data in compliance with the Customer’s written instruction and not for its own ends, including commercial ends;

(ii) not to use these data, nor permit or authorise their use by a third party or on behalf of a subcontractor or a person acting with the authority or on behalf of Michelin, its Affiliated Companies and/or subcontractors, for purposes other than providing the Services, and not to use them for any other processing or operation without the Customer’s prior agreement;

(iii) that any person with access to the personal data and/or processing them under this agreement is bound by an obligation of confidentiality and has received the necessary information for processing personal data;

(iv) to inform the Customer and its Affiliated Companies of any action and/or measure initiated by a supervising authority in relation to personal data processing in the context of its activity;

(v) to immediately inform the Customer if, according to Michelin, its Affiliated Companies and/or subcontractors, an instruction constitutes an infringement of the Rules applying to Personal Data or is not technically achievable; and

(vi) to implement and maintain for the duration of the Contract the appropriate measures and procedures to guarantee that all Personal Data processed for the Services will be protected according to their nature, against alteration, loss, accidental or malicious destruction, leaks or unauthorised access or any other illicit Processing, considering the state of the art.

4.6.  Communicating customer personal data to third parties

Michelin and its Affiliated Companies have the express right to use the Customer’s Personal Data for their own purposes, such as but not limited to, improving products and services and/or developing new products, services or offers, on condition that the data is anonymized.  In contrast, the Personal Data processed under this Contract, or in specific circumstances if applicable, will not be released to third parties, including subcontractors carrying out data processing for Michelin, its Affiliated Companies and/or subcontractors, except in the cases stipulated in this Contract or authorised by the applicable laws and regulations.  Any subcontracted operation involving processing Personal Data is subject to obtaining prior written authorisation from the Customer.  Michelin, its Affiliated Companies and/or subcontractors undertake to inform the Customer of the location of all data processing (hosting, backup, maintenance, operation, administration, helpdesk) executed outside the European Union.  When this Contract enters into force, data processing is generally located in the EU, unless otherwise stipulated in the General Terms and Conditions of Sale.  The list of Processors is updated by Michelin for the duration of this agreement. It contains the name, address and legal status of the subcontractor, the extent of its intervention in the context of the contract, and the location where the personal data are processed (hosting, backup, maintenance, administration, helpdesk, etc.). Michelin, on their selection, will put procedures in place to ensure that the third parties it authorises to access the Customer’s Personal Data, including its subcontractors, respect and protect the confidentiality and security of the Personal Data. To this end, Michelin undertakes to impose all necessary obligations on its suppliers or subcontractors, at least equivalent to those in this article, and further guarantees that these suppliers or subcontractors will comply with these obligations.

4.7. Application of European regulations on transferring data outside the European Union

Michelin, its Affiliated Companies and/or subcontractors undertake only to use IT resources located in the European Economic Area and/or in a country recognised by the European Commission as offering an adequate level of protection.  Michelin, its Affiliated Companies and/or subcontractors are authorised, if the Customer grants express consent and strictly within the limits required for the use of the Services, to use IT resources located in a country that is not recognised as offering an adequate level of protection, pursuant to Regulation (EU) 2016/679, in the following situations:

Michelin, its Affiliated Companies and/or subcontractors and, if applicable, its subcontractors have signed in the name and on behalf of the Customer, a data transfer agreement in the form and under the conditions provided for by the European Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries (hereinafter “Standard Clauses”). Michelin, its Affiliated Companies and/or subcontractors guarantee that their subcontractors will sign the Standard Clauses. If local legislation or personal data protection authorities require it, personal data transfer will require the prior authorisation of these authorities, without which no transfer may occur.

4.8.  Correction, retention and deletion of customer personal data by Michelin, its Affiliated Companies and/or subcontractors

For the period of this Contract and on its termination, for whatever reason, Michelin, its Affiliated Companies and/or subcontractors undertake to correct, return to the Customer or destroy at the Customer’s request, any personal data processed on behalf of the Customer using automated or manual systems. This clause shall remain in force after the expiry or termination of this Contract, for whatever reason. If a person associated with these data makes direct contact with Michelin, its Affiliated Companies and/or subcontractors to request the correction or deletion of their data, Michelin, its Affiliated Companies and/or subcontractors must, without delay, pass the request on to the Customer.

Subject to the applicable law, if a person concerned makes direct contact with Michelin, its Affiliated Companies and/or subcontractors to exercise their right of access, correction, deletion and/or opposition, the Service Provider undertakes to pass the request directly to the Customer as soon as it is received.

In an case, on termination of this Contract, for whatever reason, Michelin, its Affiliated Companies and/or subcontractors undertake to destroy or, as applicable according to the Customer’s instructions, to return to the Customer the Personal Data supplied and/or the materials containing them and to provide proof to the Customer with a certificate of destruction. Should the law prevent the return and/or destruction of all of said Personal Data, Michelin, its Affiliated Companies and/or subcontractors will make them anonymous or pseudonymous according to the nature of the applicable legal obligations and will guarantee the confidentiality of said data, undertaking to cease their active processing.

This article will remain in force after the termination or expiry of this agreement, for whatever reason.

4.9.  Audit

Michelin will make available to the Customer any information requested within reason by the Customer to show that Michelin is meeting its obligations as they are stipulated in this document and will submit to the Customer’s audits and inspections.

4.10.  Security incident 

Should Michelin become aware of a security incident leading to a breach of personal data protection, it will inform the Customer without undue delay. Should the Customer require information from Michelin to meet its own obligation to declare a breach in personal data protection under applicable data protection law, Michelin will provide support to supply this information to the Customer, considering the nature of the Processing and the information available to Michelin.

ARTICLE 5. SERVICES

During the Subscription Period, Michelin will supply the Services and make the Documentation available to the Customer pursuant to the provisions of this Contract.

Michelin will make every possible effort to make the Services available 24/7, except for:

– planned maintenance performed with reasonable notice; and

– unplanned maintenance performed outside normal Opening Hours, on condition that Michelin has made reasonable efforts to give the Customer notice of at least six Normal Opening Hours.

Michelin undertakes, in the context of the Services and in return for support costs defined in the General Terms and Conditions of Sale, to provide the Customer with Michelin’s standard customer support services during Opening Hours.

If the Customer wishes to change the extent of the Services and/or the Limits of Use, the details of the desired changes will be communicated in writing to Michelin. If the parties reach an agreement, additional general terms and conditions will be signed by the parties.

ARTICLE 6. FEES AND PAYMENT

The Customer undertakes to pay Michelin the fees in the amounts and on the dates indicated in the applicable General Terms and Conditions of Sale (unless otherwise stated in the General Terms and Conditions of Sale, payment will be made in Euros within thirty (30) days of invoicing). All fees are non-cancellable and non-refundable. If the Customer needs a Purchase Order to pay suppliers, the Customer will provide Michelin with the approved order information and the full and accurate information for invoicing and contact details on signature of the Agreement. The terms of a Purchase Order will not alter the Contract, and the content of such a Purchase Order will not bind any of the parties, except to reaffirm the Customer’s payment obligation pursuant to the applicable commercial conditions.

Any sum owed by the Customer pursuant to this document remaining unpaid when due will be subject to a late payment penalty defined in the General Terms and Conditions of Sale. Furthermore, if Michelin has not received payment within 30 days of the due date, and without prejudice to any other rights or recourse, Michelin may, without any liability to the Customer, deactivate the Customer and/or User’s password, account and access to all or part of the Services, and Michelin will in no case be required to supply all or part of the Services while the invoice(s) in question remain unpaid. 

Any new subscription or cancellation in the course of a month will result in the full month being invoiced.

Michelin will have the right to increase Subscription Fees payable at the beginning of each Renewal Period by giving the Customer 30 days’ notice, and the General Terms and Conditions will be regarded as having been updated accordingly.

All sums payable pursuant to this Contract do not include taxes. The Customer undertakes to pay, or to reimburse Michelin if Michelin has paid, all taxes imposed by any government on the amounts payable under this Contract, whether invoiced by Michelin or otherwise received, including sales, use, added value, assets and services, consumption, personal assets, deductions, dues, licence-fees and royalties of any kind, penalties and associated interest, but excluding taxes applied to net revenue, to wealth, to capital, to staff, to inheritance, to Michelin’s equity, to consumption, to tax deductions, to licence fees, to fees, to dues and to associated interest. At Michelin’s request, the Customer must provide Michelin with the original or certified copies of all receipts or other evidence of tax payments made in the context of this Contract, within the time frame required by the applicable legislation. The Customer and Michelin will cooperate to obtain all favourable fiscal treatment for the Parties with regard to the amounts owing under this Agreement. Each Party is responsible for declaring, deducting and paying all income taxes, unemployment contributions or other similar taxes for its employees.

ARTICLE 7. CUSTOMER OBLIGATIONS

Further to paying for the Services under the conditions described in article 6 above, the Customer must:

a. provide Michelin with:

i. all necessary cooperation with regard to this agreement; and

ii. all necessary access to the information requested by Michelin

in order to supply the Services, including but not limited to, the Customer Data, secure access information and configuration services;

b. fulfil all the other Customer responsibilities stipulated in the agreement in good time and effectively. In case of delay by the Customer in providing the assistance agreed by the Parties, Michelin may adjust any agreed timetable or delivery timetable as necessary;

c. ensure that each User accepts and complies with the Conditions of use, if applicable to the Services on occasion;

d. ensure that its network and systems comply with the relevant specifications provided by Michelin on occasion, as relevant; and

e. be solely responsible for acquiring and maintaining its network connections and telecoms links from its systems to Michelin data centres, as well as any problems, conditions, delays, delivery failures and other losses or damages resulting from or linked to the Customer’s network connections and telecoms links or caused by the internet.

Nothing in this Contract replaces or suspends the Customer’s obligation to comply with all applicable laws and regulations, including highways legislation. The Customer acknowledges and accepts that use of the Software and Services by the Customer and the Users does not mean that a vehicle complies with highways and safety legislation.

ARTICLE 8.  DURATION AND TERMINATION

This Contract comes into force and ends automatically when the Service Contract comes into force, expires or is terminated, the latter coming into force on the Date of entry into force (i.e., in the absence of an express clause to the contrary, on the date of its signature) and applies for the initial Subscription period of 12 (twelve) months and is then automatically renewed for successive 12 (twelve) month periods (each one a Renewal period), unless:

(1) one or other of the Parties notifies the other of termination by registered letter with acknowledgement of receipt, at least 60 days before the end of the initial Subscription period or any Renewal period.

(2) one Party fails to fulfil an obligation under the Contract, and this failure is not corrected within thirty (30) days of receiving notice by registered letter with acknowledgement of receipt sent by the non-failing Party; or

(3) the other party is dissolved, by legal or other effect;

(4) the length of the initial and renewal periods was expressly defined in the MyInspection Basic, MyInspection Pro or MyInspection Expert Service Contract as being different to under the General Terms and Conditions of Sale.

In case of complete or partial termination of this Contract, for any reason:

– all licences granted in the context of these General Terms and Conditions of Sale and the Service Contract will immediately be terminated and the Customer must at once cease all use of the Services and/or the Documentation supplied in this context;

– each party must return and stop using any equipment, property, documentation and other elements (and all copies thereof) belonging to the other party;

– Michelin may destroy or dispose of all Customer data in its possession unless it receives, no later then ten days after the effective termination of this Contract or the relevant commercial conditions, a written request to deliver to the Customer the most recent backup of the Customer Data. Michelin will make every effort to deliver the copy of the backup to the Customer within 30 days of receiving such a written request, on the condition that the Customer has, at that point, paid all fees and charges due and resulting from the termination (due or not on the date of termination). The Customer must pay all reasonable costs incurred by Michelin in returning or deleting the Customer Data; and

– the rights, recourse, obligations or responsibilities of the parties which have been accumulated up to the date of termination, including the right to claim damages for any breach of the Contract or the commercial conditions involved which existed on or before the date of the termination will not be affected or harmed.

ARTICLE 9.  FORCE MAJEURE

None of the parties may be held responsible for damages or other compensation for any delay or failure of execution caused by a case of force majeure.

A case of force majeure is any event that escapes the reasonable control of the party, that is external and unpredictable for the parties, such as war, fire, flood, accident, labour dispute, government order, regulation or restriction, an interruption in transport infrastructure, a shortage of fuel, raw or finished materials, or any other situation outside the reasonable control of the parties or the parties’ suppliers.

If a situation of force majeure persists for a period of three (3) consecutive months and there is no reasonable prospect of it being quickly remedied despite the efforts of the party concerned to remedy the situation of force majeure, the other party may terminate this Contract in full and without liability by giving fourteen (14) days’ notice to the party dismissed.

ARTICLE 10.  CONFIDENTIALITY

Each party agrees not to disclose to anyone any confidential information concerning the other party that has been disclosed to it or has come into its possession through the supply of the services or in connection to them.  Confidential information is all confidential and exclusive information, including, in particular, know-how, intellectual property, ideas, drawings, designs, concepts, samples, models, plans, data, software and technical, financial or commercial information obtained directly or indirectly by one party (the “recipient party”) from the other party or through communication with the other party (the “disclosing party”) or because of the location where it is situated. Nevertheless, no provision of this agreement prohibits the disclosure of information that (i) is already in the public domain, (ii) is in the public domain following its disclosure to a party by means other than an illicit act by that party, (iii) is received from a third party, on condition that the third party did not acquire them directly or indirectly from a party, or (iv) is subject to a legal obligation or to a government body with authority over a party.

ARTICLE 11.  OBEYING THE LAW

The parties agree to obey all applicable laws, rules and regulations, in particular but not limited to, all applicable laws on data protection, safety, work, employment, taxation, export control and the environment. The above obligations include but are not limited to all requirements of applicable laws and regulations on money laundering, combating corruption and terrorism, trade embargoes and economic sanctions, that are in force or may be enacted. 

Each of the Parties undertakes not to (i) offer, promise or intentionally give, and (ii) attempt and conspire to offer, promise or give, directly or through intermediaries, to a foreign public official, to any other person capable of exercising an influence, or to a third party, any unjustified pecuniary or other benefit, so that this official may act or refrain from acting in an official capacity, to win or retain a deal or for any other undue benefit in the conduct of national or international business.

The two parties guarantee that they possess and will maintain all the licences, consents and authorisations needed for the execution of this understanding.

ARTICLE 12. INDEMNITIES

Subject to this article, Michelin undertakes, at its own cost, to pay all Damages and to defend the Customer against (or at its discretion settle) any action lodged by a third party asserting against the Customer that the Products under Licence, when used in compliance with the Documentation, breach a European patent, copyright, trade secret or other exclusive third party right (“Infringement action”), on condition that the Customer: (a) quickly notifies Michelin in writing of any intellectual property claim; (b) allows Michelin to control and direct the investigation, preparation, defence and settlement of the claim; and (c) fully supports and cooperates with Michelin in defending the claim. Michelin undertakes to pay all damages or liabilities granted to the Customer (or agreed as part of a settlement by Michelin) resulting from an intellectual property claim, including the costs granted and legal fees (identified collectively as “Damages”). Michelin will not be responsible for any settlement made that it has not first approved in writing.

On notification of an Intellectual Property Claim, or of any event that might lead to such a claim, Michelin may, at its sole discretion and choice, (a) procure for the Customer the right to continue to use said Product under Licence, (b) replace the Products under Licence, or (c) modify the relevant Product(s) under Licence so as to no longer be in breach. If use by the Customer of the Product(s) under Licence is forbidden by a judgement that is not open to appeal, and if Michelin determines that it is not commercially reasonable to execute one of the options (a) to (c) above, Michelin will surrender the licence for the Product(s) under Licence allegedly in breach and reimburse prepaid and unused fees (if applicable) that the Customer has paid for these Products under Licence.

In no case will Michelin have obligations pursuant to this article nor liability for any claim or action if the intellectual property claim is caused by or results from: (a) the combination or use by the Customer of the Product(s) under Licence with software or services, software or data other than Michelin’s, if said Intellectual Property Claim would have been avoided by using the Product(s) under Licence independently or without combining, (b) the modification of the Product(s) under Licence by anyone other than Michelin if the Intellectual Property Claim would have been avoided by using the Product(s) under Licence unmodified, (c) the Customer’s activity that is allegedly in breach continuing after notification or receipt of modifications that would have corrected the alleged breach, (d) use by the Customer of Products under Licence in a manner that is not strictly in compliance with this Contract, or (e) the adapting by Michelin of the Products under Licence to the Customer’s particular specifications.

THIS ARTICLE SETS OUT EACH PARTY’S LIABILITY IN FULL AND THE SOLE RECOURSE OF THE OTHER PARTY IN CASE OF A BREACH OF INTELLECTUAL PROPERTY RIGHTS OR ALLEGATIONS BY A THIRD PARTY.

Furthermore, the Customer must defend, indemnify and absolve Michelin of any liability in relation to claims, actions, cases, losses, damages, expenses and third party costs (including and not limited to, reasonable legal and court costs) resulting from or in relation to the use of the Services and/or Documentation by the Customer, on condition that:

– the Customer is quickly informed of any claim of this type;

– Michelin provides reasonable cooperation to the Customer in defending and settling this claim, at the Customer’s expense; and

– the Customer is solely authorised to defend or settle the claim.

ARTICLE 13.  GUARANTEES AND LIMITS OF LIABILITY 

The Services will be executed for the most part in compliance with the terms and conditions set out in this agreement and with the documentation and with reasonable care and skill.

This undertaking does not apply where a non-compliance is caused by using the Services against Michelin’s instructions, or by a modification or alteration made to the Services by any party other than Michelin or its suppliers or duly authorised agents. If the Services to not comply with the undertaking above, Michelin will, at its own cost, make reasonable commercial efforts to rapidly correct any compliance failure or will provide the Customer with other means of achieving the desired performance. This correction or substitution is the Customer’s sole recourse in case of a failure to fulfil the undertaking made in the preceding paragraph.

The above notwithstanding, Michelin:

– does not guarantee that the Customer’s use of the Services will be uninterrupted or free of faults; or that the Services, Documentation and/or information obtained by the Customer through the Services will meet the Customer’s requirements; and

– is not responsible for delays or failures in delivery or any other loss or damage resulting from the transfer of data on networks and communication installations, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent to using these communication installations.

The above notwithstanding, the Services (including the Documentation) are supplied “as is” and, within the limits authorised by the applicable law, Michelin provides no guarantee and refuses any guarantee of any kind (written, verbal, express or implicit), including a guarantee of merchantability or fitness for a specific use, in relation to the use, and particularly the non-compliant use, or to the inability to download and/or use the Services. The simple fact of having used the Services does not mean that a vehicle has been inspected and is fit to be driven in satisfactory safety conditions. The Customer also acknowledges that the data and information provided through the Services are supplied solely for information and must not replace routine and safety maintenance processes.  Michelin cannot be held liable for any damage or loss linked to this acknowledgement.

Except where expressly provided for in this agreement:

– the Customer takes full responsibility for the results obtained when using the Services and Documentation, and the conclusions drawn from this use. Michelin declines all responsibility for any damage caused by errors or omissions in the information, instructions or scripts the Customer provides to Michelin in the context of the Services, or for any action taken by Michelin at the Customer’s request;

– all guarantees, declarations, conditions and all other terms of any type implied by law or case law are, to full extent permitted by the applicable law, excluded from this agreement.

None of the parties will in any case be liable to the other party for consequential, incidental, indirect or special losses or damage linked to the Services, including but not limited to, damages for loss of use, opportunity, business potential and/or profit, data or information loss or corruption, or for the termination or expiry of this Contract in compliance with its conditions relating to the execution or non-execution by a party of this Contract.

In all cases, Michelin’s entire liability in respect of all claims (connected or not to the execution of this Contract), whether contractual, criminal (including negligence or failure to fulfil a legal obligation), of false declarations, of restitution or other, deriving from the execution or the anticipated execution of the Contract, is limited to a sum equal to 1.5 times the total Subscription Fees paid for the Service in question during this period.

No provision in this understanding absolves the parties from responsibility:

a. in case of death or injury caused by their negligence; or

b. for fraud or fraudulent false declaration.

ARTICLE 14. APPLICABLE LAW AND DISPUTE SETTLEMENT

This Contract is governed by French law, irrespective of any provisions on conflicting laws. 

The parties will attempt in good faith to quickly settle any disagreement deriving from this agreement, by negotiation between representatives empowered to settle the disagreement.  If an amicable settlement is not achieved within sixty (60) days from the notice of the dispute, the courts of Clermont-Ferrand will have sole jurisdiction over the dispute.

ARTICLE 15.  MISCELLANEOUS

This Contract may be modified by Michelin at its sole discretion with notification given to the Customer. In such a case, the Customer will have the right to terminate the Contract by giving 3 months’ notice.

This Agreement does not prevent Michelin from making similar agreements with third parties, or independently developing, using, selling or licensing documents, products and/or services similar to those supplied under this Agreement.

The failure by one or other party to enforce or exercise one or more of its rights under the provisions of this understanding must not be interpreted as a waiving of these rights nor as having any impact on the effectiveness of these provisions nor on the rights or powers and recourse of the other party pursuant to this understanding. The exercise of a right or the application of a right or recourse by one or other of the parties pursuant to this agreement does not limit or affect the right or power of the other party to then exercise the same right or any other right or to apply the same right or any other recourse.

The Customer may not transfer this Contract nor any of its rights or obligations under it, without Michelin’s written agreement.  Any transfer by the Customer is null and void.  This Contract and any rights or interest under it may be transferred at any time by Michelin to one of its affiliated companies.

Should one of the provisions of this agreement be invalidated, or its application to any person be invalidated, by a law, ruling or court judgement, the other provisions and their application to any other person will in no way be affected, and these will remain in force, unless their altered execution is unreasonable or inequitable in all circumstances or obstructs the purposes of this agreement.

No provision of this Contract is considered to create a franchise, partnership, limited partnership, or agency relationship between the parties and the parties acknowledge that they are independent companies.  No party is authorised to act in the name of the other party and/or to act as its guarantor.

For the application of this agreement, the parties designated their respective registered offices as their official address. Unless otherwise agreed, any notification, communication or request by one party to the other in application of this agreement, to be valid, must be sent in writing by registered letter with acknowledgement of receipt.