1. SCOPE – ENFORCEABILITY
These general terms and conditions of sale (“GTCS”) apply to the provision of all services and sale (or rental) of equipment by FULCRUM, such as, but not limited to, (i) connectivity/data transmission services, notably space, air, ground or in situ data, (ii) value-added services based on the aforementioned data and (iii) other services such as equipment leasing or maintenance (all services hereinafter referred to as the “Services”) and (iv) any equipment sold/made available to the Customer (hereinafter referred to as the “Products”).
The Products and Services are solely aimed at businesses in the United Kingdom or abroad (hereinafter referred to as “Customer(s)”). Under no circumstances may the Customer be regarded as a consumer and thereby claim to be entitled to benefit from any regulations relating to consumer protection.
Any order of Products/Services by a Customer constitutes an offer by the Customer to purchase the Products and Services in accordance with these GTCS.
Any other documents, in particular catalogues, brochures, advertisements, etc., are for information purposes and guidance only, and are not binding. In addition, any document provided by the Customer (such as the Customer’s general terms and conditions of purchase or the Customer’s purchase order) shall only be binding in relation to FULCRUM, if FULCRUM has expressly accepted the provisions of such document in writing and only after balanced negotiations between the Customer and FULCRUM.
The fact that, at any given time, FULCRUM does not invoke a particular provision contained in these GTCS shall not be interpreted as a waiver of FULCRUM’s right to invoke that provision at a later date.
In accordance with the regulations in force, the parties might waive or supplement certain articles of these GTCS by specific terms and conditions (“STCS”). Such STCS may also specify the rules applicable to other products, services, or third-party software.
If there is any conflict between the contractual documents which exist between the parties, the following order of priority shall apply: (i) the STCS if drawn up and signed by both parties (ii) FULCRUM’s purchase order issued by FULCRUM signed by the Customer (iii) if applicable, FULCRUM’S quotation / offer issued by FULCRUM in writing, (iv) these GTCS (v) if applicable, the Customer’s purchase order provided that it has been signed by FULCRUM. All the documents listed above (as applicable) constitute the contract (“Contract”) that binds the parties.
Any document as mentioned above signed by a secured electronic signature system shall have the same value as their original paper copies, provided that the signatories can be duly identified and that the scanned copy has been stored in such a way as to guarantee its integrity.
The receipt of an order placed by the Customer (“Order”) shall be acknowledged by a purchase order issued by FULCRUM, summarising the information concerning the Products/Services (reference, quantity, price, duration, etc.). The Order shall only be deemed accepted when FULCRUM issues its written acceptance of the Order by email and/or the issuing of a sales receipt, at which point the Contract comes into existence.
FULCRUM reserves the right not to acknowledge receipt of an Order for any reason it deems fit, and in particular if the Customer has in the past failed to pay any invoice, if the Order is incomplete or if there is a foreseeable problem as regards the provision of the Product/Service.
The applicable prices are those in force on the date of the Order. The currency and applicable taxes are specified on the Order and/or the STCS. These do not include any taxes, customs duties or other charges (foreign exchange fees/bank charges), for which the Customer is solely responsible, and which may be invoiced in addition, if necessary. The amounts paid by the Customer to FULCRUM must correspond exactly to the amounts specified on the invoices. Payment shall be considered to have been made once the amount has been credited to FULCRUM’ bank account. Unless otherwise agreed in writing between the parties, no discounts or rebates shall be applied by FULCRUM.
Price lists shall be provided to the Customer upon request. FULCRUM reserves right to modify the prices at any time. FULCRUM shall inform the Customer in writing at least thirty (30) days before any revised prices come into effect. Where the price has been modified, within that thirty (30) day period, the Customer may terminate the Contract by sending a letter by registered post or email to FULCRUM, requiring acknowledgment of receipt.. Beyond this period, it shall be deemed that the Customer has accepted the revised prices.
Invoices issued by FULCRUM shall be paid by the Customer within 30 (thirty) calendar days of their date of issue. Such invoices might be issued solely via electronic notice.
FULCRUM reserves the right to demand a down-payment, a cash payment or a payment guarantee from the Customer at any time before fulfilling the Order, in particular if FULCRUM has previously had payment issues with the Customer concerned.
In the event of non-payment of the invoice by the date stated on the invoice, the amounts due by the Customer will accrue interest, from the due date to the date of the actual payment, whether before or after judgement. Interest under this Article will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 4%. .
In the event of late payment by the Customer, FULCRUM shall be entitled to suspend its deliveries and Services and/or cancel the Order without prejudice to any other action that may be taken against the Customer.
No payment may be offset at the Customer’s sole initiative.
- Customer obligations
The Customer undertakes to:
- pay the price for the Products and/or Services;
- put in place and maintain the requisite IT and telecommunications facilities needed to use the Products and/or Services.
In addition, the Customer undertakes to comply with all instructions for the use, storage and maintenance of the Products/Services supplied by FULCRUM, in particular those provided to the Customer in the form of instructions for use or any other user manual.
The Customer acknowledges and accepts that the Products and Services use complex technologies linked to location and data collection systems and are available on an “as is” basis and that FULCRUM cannot guarantee that the Products/Services will operate without interruption or error free or be accessible without potential geographical limitations.
Since they may be beyond human control, the data processing and/or transmission times of the geolocation systems are given solely for information purposes and may sometimes exceed the initial specifications.
FULCRUM and its partners cannot under any circumstances guarantee the continuity of the Services and the timely provision of data, nor the accuracy or suitability of the data for any purpose whatsoever. As such, the Customer undertakes not to file any claims or legal procedures on these grounds, whether against FULCRUM or any satellite operators or data-transmission network operators (including their affiliates or agents and representatives).
Nothing in this Contract limits any liability which cannot legally be limited, including liability for:
- Death or personal injury caused by negligence;
- Fraud or fraudulent misrepresentation;
- Breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
Throughout the term of the Contract during which the loss or damage occurred and regardless of the event that may have caused such loss or damage, FULCRUM’s total, cumulative contractual liability may not exceed the price invoiced and paid by the Customer during the twelve (12) months preceding the event which has caused such loss or damage, regardless of the nature, basis and form of the procedure filed by the Customer against FULCRUM.
Under no circumstances may FULCRUM be held liable under the Contract for any indirect losses, incidental, special, or exemplary damages, including:
- losses resulting from an interruption of activity,
- an operating loss,
- loss of profits,
- loss of revenues,
- loss of customers or data,
- any damage to reputation, image or goodwill,
- a failure to achieve expected savings, improved productivity or a competitive advantage,
- cost of substitute products, facilities or services,
- interruption of the Customer’s activities, or
- any procedure/claim filed by a third party against the Customer.
FULCRUM shall not be liable and the Customer shall not be entitled to any compensation in the case of: (i) an occurrence of a Force Majeure Event (as defined below) , (ii) interruption(s) to the Services due to breakdowns/malfunctions of satellite systems or a failure on the part of satellite or telecommunications service providers or data providers, (iii) the failure of the communication equipment used by the Customer when such equipment has not been supplied by FULCRUM, (iv) the failure or unavailability of communication tools or network performance or electrical installations or any other data-processing equipment or system installed/used on board the ship or other host, (v) the alteration of information or data during transmission, (vi) the fraudulent use of data or Services, (vii) the use of the Services to ensure the safety of property or persons, (vii) damage caused by any action or lack of action by the Customer or its employees, suppliers, representatives or third parties, (viii) for any damage caused by misinterpretation of any data, reports or any result of the Services by the Customer or any third party or for any future events or damages that are directly or indirectly related to the interpretation of such information, (ix) failure by the Customer to comply with the instructions for use, conservation and maintenance of the Products/Services, in particular those transmitted to the Customer by means of the instructions for use or other user manual.
FULCRUM shall not be held liable for any damage that may occur to the Customer’s property or to third parties as a result of the use of the Products and Services.
FULCRUM cannot be held responsible if the Products are not installed by FULCRUM or a third party appointed by FULCRUM. The Customer is therefore solely responsible for installations and their possible consequences on the functionality, security and use of the Product when carried out by the Customer or a third party appointed by the Customer.
The Customer indemnifies and holds harmless FULCRUM against any claim for loss or reduction of “manufacturer’s warranties” of any kind arising from FULCRUM’s (or an authorized third party’s) handling of installation supports (such as, but not limited to, engine, vehicle, bodywork, etc.) in connection with the installation of the Products.
- Force majeure
In the event of total or partial failure to perform, or delay in performance of any of its contractual obligations, the party responsible for fulfilling this obligation shall not be considered at fault or liable to pay any compensation, if the performance of the obligation was impaired or rendered impossible due to . any event which is beyond the control of the party, which could not reasonably be foreseen at the time of the conclusion of the Contract and the whose effects could not be avoided by appropriate measures, or if the failure or delay was caused by the following events: natural disasters, exceptional weather conditions, embargoes, labour disputes, boycotts, wars, riots, customs quotas, supply or labour shortages, transport delays, blocking by customs authorities, terrorists attacks, failure of satellite system(s), failure of systems managed by telecommunications operators (e.g. GSM network), government bans on the use of satellite data, epidemics, pandemics including their consequences having an impact on the provision of the Products and/or Services, such as measures imposed by government or public authority (each a Force Majeure Event).
The defaulting party shall (i) promptly notify, by letter or e-mail, the other party of the occurrence of a Force Majeure Event, which shall be described in detail, indicating the foreseeable duration of the event and the measures taken or sought by the party to remedy the consequences of the Force Majeure Event, and (ii) make its best efforts to find an alternative solution and, in any event, resume the performance of the Contract as soon as reasonably possible.
If the case of the Force Majeure Event lasts more than ninety (90) days, without it being possible to find a remedy, the aggrieved party may terminate the Contract by delivering notice to the defaulting party by registered letter or email, and requiring acknowledgement of receipt, with no compensation due from either party.
- Personal data
As part of the performance of the Contract, personal data may be processed by FULCRUM at the request of the Customer (FULCRUM then acts as a data processor as defined by Regulation (EU) 2016/679 of 27 April 2016 (“GDPR”)), or by the Customer itself at the request of FULCRUM (FULCRUM then acts as the data controller, as defined by GDPR. Herein, the only cases addressed shall be those in which FULCRUM acts as a data processor. For cases where FULCRUM is considered to be the data controller, the parties will enter into a separate personal-data processing agreement which shall be specifically drawn up between the parties.
In order to make it possible for the Services to be provided, the Buyer shall entrust FULCRUM with the processing of personal data, and notably collecting, drawing value from and making available various kinds of data (such as, but not limited to, surname, first name, email, telephone numbers, registration number, geolocation data, Web-Platform user-identification data). The purpose of these processing operations shall be strictly limited to the performance of the Services. Moreover, FULCRUM undertakes to only process personal data that is strictly necessary for the purposes of the Contract.
As a general rule, the Customer and FULCRUM shall comply with the applicable legislation concerning the protection of personal data in force from time to time in the UK, including the UK GDPR as it applies in the UK, the Data Protection Act 2018, and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) (the “Data Protection Legislation”). This Article 1.7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. As such, the Customer shall therefore carry out all the necessary formalities concerning the processing operations entrusted to FULCRUM and inform the persons concerned by these processing operations. Without prejudice to the generality of the foregoing, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable the lawful transfer of personal data to FULCRUM for the duration and purposes of this Contract.
As a processor, FULCRUM shall:
- to implement all appropriate technical and organisational measures to protect the Customer’s personal data against any unauthorised or illegal processing and against the loss, accidental destruction and alteration of the personal data.
- to act solely according to the complete and documented instructions of the Customer, who is the data controller, unless required by applicable law to otherwise process that personal data. Where FULCRUM is relying on applicable law as the basis for processing such personal data, FULCRUM shall notify the Customer of this before performing the processing unless the applicable law prohibits FULCRUM from so notifying the Customer.
- ensure that all personnel who have access to and/or process the personal data are obliged to keep the personal data confidential. Insofar as possible, FULCRUM shall assist the Customer, at the Customer’s cost, to fulfil its obligation to comply with requests from persons concerned by the processing of their personal data who wish to exercise their rights concerning the right of access, rectification, deletion and opposition, the right to limit processing, the right to data portability, and other rights granted to the data subjects by the applicable Data Protection Legislation. In the event that the persons concerned inform FULCRUM of their wish to exercise their rights, FULCRUM shall send these requests by email to the Customer as soon as it receives them.
- at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Contract unless required by applicable law to store the personal data.
- make every effort to notify the Customer as soon as possible of any personal data breach, after becoming aware of it.
“Confidential Information” means any information or material concerning the business, assets, affairs, customers, clients or suppliers of the other party including any information marked “Confidential”, “Restricted” or with such other restrictive legend, proprietary software including source code and documentation and any other form of information disclosed which may be reasonably construed to be confidential which either party may disclose to the other party under this Contract.
The Parties agree that during the Contract and for a period of three (3) years after the expiry or termination of the Contract, (except in the case of trade secrets, which shall continue to be confidential until such information is no longer deemed a trade secret), Confidential Information exchanged between the parties shall be kept confidential and shall not be disclosed, given to any third party or made use of in any manner otherwise than for the purposes set out in this Contract, except as permitted in this Article 1.8.
The parties shall use or permit to use Confidential Information solely in connection with the Contract and not for their own or any third-party benefit, provided that the parties shall be entitled to disclose Confidential Information to those of their employees (under equivalent confidentiality undertakings), if any, to whom and to the extent such disclosure is reasonably necessary for the purposes of this Contract and as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
The Customer shall in any case remain responsible towards FULCRUM for the compliance of its employees/third party who have a need to know with all obligations deriving from this Article.
Notwithstanding any provision herein contained, this Contract shall not be construed as imposing on the disclosing party an obligation to provide or disclose any information.
All the ownership rights and intellectual property rights in and to the Confidential Information shall be retained by the party that has disclosed the Confidential Information. The party receiving the Confidential Information shall not remove the distinctive signs, logos or marks indicating the source and/or ownership of the Confidential Information on all copies thereof.
- Intellectual Property
In this Article 1.9 “IPRs” shall mean all patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
All IPRs in FULCRUM’S work, materials, items, Products or arising out of or in connection with the Products/Services including any IPRs resulting from the Services delivered to the Customer, shall be owned by FULCRUM. In particular, this includes those IPRs relating to:
- Software or databases,
- web platforms (including interfaces and dashboards),
- equipment, components, or related documentation,
- deliverables delivered and/or produced during the term of the Contract and provided to the Customer (such as, but not limited to, models, maquettes, prototypes, drawings, diagrams, images, reports, data, analyses, proposals or any other document, including any preparatory studies),
shall all be owned by FULCRUM, its licensors or suppliers, as applicable.
FULCRUM grants to the Customer:
- As regards (i) and (iii) above: a limited, revocable, non-exclusive, worldwide non-transferable, non-sublicensable licence to use the IPRs to the extent strictly necessary for the provision of the Services/Products covered by the Contract, and only for the duration of the Contract;
- As regards (ii) above: a right of access as specified in Article 3.1 of GTCS;
- As regards (iv) above: unless otherwise specified, a limited, revocable, non-exclusive, non-transferable, non-sublicensable licence to use these IPRs during the term of this Contract. The images provided to the Customer which belong to third party providers may be used by the Customer only for internal and non-commercial purposes. The Customer may be required to sign a separate end-user licence agreement in relation to the use of such images.
- Assignment of the Contract
The Customer shall not, without FULCRUM’s prior written consent, assign or transfer the Contract or the rights or obligations arising thereof to a third party. Without prejudice to FULCRUM’s other rights and remedies under this Contract, in the event of an unauthorised transfer, FULCRUM shall have the right to suspend the Services and performance of the Contract, and the Customer shall remain fully liable for the payment of all invoices relating to the Product/Services.
FULCRUM may transfer, assign, charge, delegate or sub-contract all or part of its rights and obligations under this Contracts, as well as the resulting payments due and their collection, to third parties. .
This Contract, together with the instructions for use, preservation and maintenance of the Products, and in particular those transmitted to the Customer by means of the instructions for use or other instructions for use, represent the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersede any other agreement or understanding between the parties. If any of the articles of this Contract should become invalid, illegal or unenforceable, this shall not entail the invalidity, illegality or unenforceability of the other articles, which shall retain their full effect and scope. These GTCS, and the sale of Products and the provision of Services governed by them and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, are subject to the laws of England and Wales, regardless of the place in which the Service is performed or the Product is delivered, and regardless of the location of the Customer’s registered office or place of business. In the event of a dispute arising from the Contract and, if necessary, where other attempts to find an amicable solution have been exhausted, each party agrees that the competent courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract, its subject matter or formation.
The Customer shall allow FULCRUM to access, inspect and audit the Customer’s records, accounts and other relevant information and premises (including allowing copying of documents), during normal business hours on business days and subject to a minimum of seven (7) business days’ notice to the extent this is reasonably required for the purpose of verifying the Customer’s compliance with its obligations under this Contract (especially regarding confidentiality, use of Services, and intellectual property).
- Export control
The Customer acknowledges that the Products/Services are subject to the export control regulations in force in England and Wales, including the Export Control Act 2002 and the Export Control order 2008. The Customer undertakes not to export or re-export any Products and related deliverables, directly or indirectly, to any country or any end-users, and for any use,.
2. CONDITIONS CONCERNING PRODUCTS
- Delivery of the Products
As regards the sale of Products, FULCRUM undertakes to deliver the purchased Product in accordance with the Order. Unless otherwise agreed by the parties in writing, delivery shall be made Ex-Works (Incoterms 2020).
Title of the Products shall not pass to the Customer until full payment of the price payable for the Products has been made by the Customer, regardless of the date on which the Products were delivered.
The delivery time specified in the Contract is given for information purposes only, since it depends, notably, on the availability of carriers, the customs-clearance time, weather conditions. Resulting delays in delivery shall not give rise to any penalties or compensation, nor shall they justify the cancellation of the Order.
The Customer is required to check the apparent condition of the Products upon delivery. If Customer does not provide written notice to FULCRUM of any damage, defects or other concerns regarding the Products within five (5) calendar days of the Products being delivered, the Products delivered by FULCRUM shall be deemed compliant with the Contract in terms of quantity and quality.
Any claim made by the Customer according to the conditions and procedures described in this Article shall not give rise to suspension of the Customer’s payment for the Products concerned.
- Product modification
Unless with express, written and prior authorisation by FULCRUM, the Customer may not modify or alter the Products.
The Products carry a contractual warranty for a period of twelve (12) months from the date of delivery, that the Products shall conform in all material respects with their description and any applicable specification set out in the Order and any faults resulting from a defect in the materials, design or manufacturing that affects the Products and makes them unfit for use. The contractual warranty period for batteries is six (6) months.
The Product may not be sold or resold altered, transformed or modified.
If Products under warranty that are deemed defective are (i) notified to FULCRUM by the Customer in writing, (ii) FULCRUM is given a reasonable opportunity of examining the Products, and (iii) the Customer (if asked to do so by FULCRUM) returns such Products to FULCRUM, then FULCRUM shall, at its option arrange for the Products to be replaced or repaired by FULCRUM, . This warranty covers the cost of labour and the return of the repaired or replaced Product. The cost of shipping the defective Product to FULCRUM shall however be paid by the Customer. The replacement of defective Products shall not lead to the above warranty period being extended.
The warranty shall apply solely to Products provided by FULCRUM, and shall exclude consumables/accessories such as the SD memory card, SIM card, antennas, cables or fasteners, and all other accessories and consumables necessary to use the Products.
The warranty shall not be valid in the event that the failure affecting the Product is the result of (i) improper installation or storage (if carried out by the Customer or a third party on the Customer’s behalf); defaults caused during transport of the Product; abnormal use, namely when the Products have been used under conditions and/or for a purpose different from those for which they were manufactured, or in the event of non-compliance with the conditions prescribed in the user manual; negligence or lack of maintenance on the part of the Customer, (ii) normal wear and tear of the Product, (iii) force majeure, loss or theft; destruction, damage or an accident resulting from an impact, fall, negligence, lack of supervision or maintenance, (iv) the repair or attempted repair of the Product by persons other than FULCRUM staff or an authorised repair company, unless prior written authorisation has been granted by FULCRUM. FULCRUM shall not be liable for the Products’ failure to comply with the warranty set out in this Article 2.4 if the Customer makes any further use of such Products after giving notice of any non-conformity in accordance with this Article 2.4.
Except as provided in this Article 2.4, FULCRUM shall have no liability to the Customer in respect of the Products failure to comply with the warranty set out in this Article 2.4.
- Product recycling
When the Product reaches the end of its useful life, the Customer undertakes to dispose of it using the appropriate recycling channels, in accordance with the regulations in force in the country where the disposal takes place.
In the event of rental of Products, the Customer undertakes to return the Products within the period indicated by FULCRUM in the Order or as otherwise notified to the Customer in writing. If the parties agree in writing that such rented Products shall not be returned to FULCRUM and shall be destroyed, the Customer undertakes to destroy the Products under the conditions defined in the previous paragraph.
With regard to batteries, information concerning the effects of problematic substances in the battery waste stream is available at the following address: http://ec.europa.eu/environment/waste/batteries/
In the event that the Customer is responsible for recycling the Product, the Customer indemnifies FULCRUM against any claim or action relating to the conditions of recycling and any failure to comply with applicable standards.
3. CONDITIONS CONCERNING SERVICES
- Access to the Services
The use of certain Products or Services and/or access to software, web platforms, interfaces, dashboards, or databases requires the prior allocation of a login, a password and/or a hardware key (such as a smart card, USB flash drive.). This identification information is strictly personal and confidential and should not be disclosed to or shared with third parties. Under no circumstances shall FULCRUM be liable for the loss of identification information by the Customer, who is solely responsible for such information, whether used by the Customer and/or by third parties, or for any actions or declarations made through the use of these logins, whether fraudulent or not. In addition, FULCRUM does not have the means to verify the identity of persons accessing the Services and cannot therefore be held liable in this matter. If the Customer has reason to believe that a person is using its identification details without having received the requisite authorisation, it must immediately inform FULCRUM so that appropriate measures can be taken. The conditions and costs for renewing the identification information are specified in the STCS, if applicable.
The Customer may have access to one or more of web services such as FULCRUM’s software as a service (SaaS) applications/platforms (applications hosted by FULCRUM or a third party available to customers via the Internet). The web services consist of a set of IT components and services, servers, databases and software used to display and exploit data or other information within the framework of the Services provided by FULCRUM (hereinafter collectively called “Platforms”).
FULCRUM grants the Customer a personal, limited, revocable, non-exclusive, non-transferable and non-sublicensable right to use the Platforms and its component parts for the purpose intended. The Customer shall use the Platforms only for its own needs and in compliance with their intended purpose.
Apart from the rights granted under this Article, and without prejudice to those rights, the Customer is not authorised to:
- Copy all or part of the Platforms, print, transfer, reproduce, modify, arrange or correct all or part of the components of the Platform; or export and/or incorporate all or part of it into other computer programs;
- Sell, rent, sub-license, make available to third parties, market, lend or distribute the Platforms and its component parts, in any way whatsoever;
- Use the Platform and/or its component parts to provide any individual, company or entity with data-collection and information-processing services or any other services that are similar to the Services in any way whatsoever;
- Compile, decompile, disassemble, translate, reverse engineer or attempt to reverse engineer the software that is part of the Platform, except within the limits authorised by law.
For the purposes of this Article, the following terms shall have the following meanings:
“Raw Data”: refers to data generated in particular by data-collection, geolocation or transmission/information processing equipment, such as for instance a beacon or a buoy, and/or, more generally, any data received by FULCRUM which are not appropriable as such (including data received from the Customer in order to be processed by FULCRUM or data purchased by FULCRUM from third-party data providers as the case may be).
“Processed Data”: refers to information (i) made available to the Customer by FULCRUM through its infrastructure and/or processes for collecting and processing Raw Data, through software, the Platform, an interface, a dashboard or any other communication means, and/or (ii) organised within one or more databases owned by FULCRUM.
Unless otherwise specified, the use of Processed Data by the Customer shall be for internal and non-commercial purposes.
FULCRUM shall remain free to use the Raw Data and the Processed Data, notably for the purposes of:
- internal research, in particular to improve the Services offered, and/or
- for any other purposes, provided that such data has been subject to ID masking/anonymization including personal data or data that are subject to the Data Protection Legislation, unless otherwise agreed in writing between the parties.
This Article is applicable worldwide and for the legal period of protection concerning the applicable IPR.
In case Processed Data are based on Raw Data provided to FULCRUM by third parties, or in case the Customer requests from FULCRUM the provision of Raw Data, the Customer may be required to sign a separate end-user licence agreement.
- Customer obligations
- The Customer acknowledges:
- that it is aware of the type of network used and, in particular, its technical performance and response times for consulting, querying or transferring data and information;
- that the data circulating on networks are not necessarily protected, notably against possible misuse;
- that, if it communicates its login details, or any information deemed confidential, to a third party, it does so at its own risk;
- that it is responsible for taking all appropriate measures to protect its data and/or software from contamination by viruses;
- that it is solely responsible for all data and information that it sends and receives using FULCRUM’s Products and Services.
- that FULCRUM and its partners may establish and determine the duration or volume of authorised communication, or the maximum volume of data storage, depending on the Service concerned.
- The Customer shall not:
- attempt to divert the Service from its intended purpose, manipulate the content and, more generally, the information and data provided through the Service in any way whatsoever, or conceal the source and origin of information received or sent through the Service;
- gain or attempt to gain unauthorized access to FULCRUM network or its related systems;
- use the Services in connection with illegal activities (terrorism, crime, etc.) and/or dual-use military applications designed for military items, including any related computer services;
- upload, display and transmit any content that contains computer viruses or any code, files or programs designed to interrupt, destroy or limit the functions of the Service, computer or telecommunications tool, without this list being exhaustive;
- perform any action that may have a disruptive effect and/or hinder the real-time communication capabilities of FULCRUM and/or its partners, in particular those of communications network operators;
- interfere with or disrupt the Service, servers or networks connected to the Service, or refuse to comply with any applicable requirements, procedures, general rules and/or legal and regulatory provisions;
- transmit or store data, content or information that has in breach of third party rights or that been altered, is misleading, illegal or fraudulent and, more generally, contrary to the applicable law in the Customer’s geographical location.
- Suspension of Services
Without incurring any liability, at any time, FULCRUM and/or its partners reserve the right to suspend access to and the use of the Services for a limited period of time:
- For any maintenance, modification and/or technical failure of a satellite/network operator and notably to safeguard the security and integrity of such network. FULCRUM shall give the Customer prior notice of such suspension where reasonably practicable;
- Without notice,
- in the event of non-compliance with an essential obligation of the Contract or with the legal and regulatory provisions in force, or
- in case of use of the Services or Products that seriously affects the stability or the security of FULCRUM network or when FULCRUM has reason to believe so, or
- in case of any fraudulent or illegal use of the Services or Products, or if a Product has been lost or stolen, in particular in order to avoid or correct any degradation or impairment of Services, or
- in case of a request or order from a judicial governmental/regulatory or law enforcement body, or
- in case the provision of the Services becomes unlawful under the applicable law.
In the event listed in Article 3.4.2 above, and if several Orders are in progress, FULCRUM shall be entitled to suspend not only the order concerned but also the Customer’s other orders.
Without prejudice to any other claims or proceedings that FULCRUM may bring against the Customer, FULCRUM may terminate the Contract and all access to Services, including to API/Platforms at any time after notification delivered by registered letter or email:
- with thirty (30) days’ notice, if the Customer has not remedied the breach in question within the thirty (30) days period mentioned in the events as provided in articles 3.4.1, 3.4.2 (i) (notably in the event of non-payment of an invoice or a reduction in the guarantees and securities provided) and/or 3.4.2 (ii),
- with fifteen (15) days’ notice, in the events as provided in article 3.4.2 (iii) (iv) (v).
The Customer may terminate the Contract with three (3) months’ notice, by sending a registered letter with acknowledgement of receipt to FULCRUM.
- Service period
Provision of the Service is determined by the start and, if applicable, end dates of the Service, specified on the Order or in the STCS (as applicable) (“Service Period”), regardless of whether or not the Customer actually uses the Services provided by FULCRUM (access time or volume of data, for example).
If no Service Period is specified, the Service shall be provided for an indefinite period until terminated by a party in accordance with the terms of this Contract.
The Customer declares that it has read and accepted any specific terms and conditions stated on the FULCRUM Order and, in particular, the additional invoicing that may be carried out in the event that the volume of data or the access time initially provided for is exceeded.
At the end of the Service Period, the Customer shall immediately cease all use of the Service, notably by deactivating the equipment generating the Service. Failing this, and depending on the technical options available, FULCRUM may, at its discretion, suspend access to the Service or invoice the Customer for access to the Services and Platforms at the price in effect on the date the Contract expired.
4. CONDITIONS CONCERNING SOFTWARE
If a software licence is granted to the Customer, and if no specific license agreement has been signed between the parties, FULCRUM grants the Customer the right to use the software for the purposes specified on the Order. This right is personal, limited, revocable, non-exclusive, non-transferable and cannot be sublicensed or used for any commercial operation. The license is worldwide and is granted for the duration of the Contract.
Apart from the rights granted under this Article, and without prejudice to those rights, the Customer shall not:
– Copy, print, transfer, reproduce, arrange, correct or display all or part of the software concerned;
– Sell, rent, sub-license, make available to third parties, market, lend or distribute the software in any way;
– Use the software to provide data processing, office or time-share services, or any other similar services of any kind whatsoever, to any natural person, company or entity;
– Use or install the software on a network or multiple work-stations, or distribute the software, notably via the Internet;
– Modify/adapt the software and/or incorporate all or part of the software into other computer programs;
– Compile, decompile, disassemble, translate, analyse, reverse engineer or attempt to reverse engineer the software, except within the limits authorised by law.
The software source codes shall not be transmitted to the Customer.
The cost of the licence fee shall be specified on the Order.
The parties agree that the software is delivered “as is”, without express or implied guarantees concerning its reliability, quality or suitability for particular needs or uses.
No maintenance is planned as part of this Contract. FULCRUM shall provide the Customer with any updates for the software.
FULCRUM shall not be responsible for the software’s compatibility with the Customer’s hardware and/or software or the equipment used by the Customer.
5. CONDITIONS CONCERNING PRODUCT MAINTENANCE
At the Customer’s request, after the end of the warranty period, FULCRUM may maintain the Products for a further period until the end of the Contract. All related costs will be paid by the Customer: assistance, diagnosis, shipping costs to and from the site, repairs, replacements as well as site visits, dismantling and installation.
In the event that the Customer opts for a fixed-price maintenance package, the Customer and FULCRUM shall draw up, by mutual consent, an order confirmation specifying the content of the service package and the related terms and conditions as regards the price and duration.