General Terms and Conditions of Sales
Acceptance by Yole Développement SA and/or its Affiliates (referred to as either “Yole Group” or Seller) of a Purchase Order for Products and/or Licenses offered for sale by Yole Group, shall be made subject to the terms of these General Terms and Conditions of Sale, except as may be otherwise duly accepted and expressly agreed in writing by Yole Group”.
Buyer shall mean any person purchasing, as part of its business activities and for its business needs, one or more Products, Services and/or Licenses offered for sale by Yole Group. Buyer rights may, under the responsibility of Buyer Identified User, be extended geographically to encompass the business needs of Buyer Subsidiary(ies) provided that no extension may be granted by a Buyer or Buyer Identified User not located in Greater China region to any associated, subsidiary or parent company of Buyer located within the Greater China Region. Furthermore, if Buyer or Buyer Identified User is headquartered within the Greater China Region, neither Buyer nor Buyer Identified User shall be entitled to extend any Buyer rights to benefit any Buyer Subsidiary (ies) located outside the Greater China Region.
Buyer Identified User shall mean the person within Buyer Organization who shall serve as the contact person for a Product Service and/or License purchased by Buyer from Seller. Buyer Identified User shall, on behalf of Buyer, (i) be the recipient of each License granted by Seller to Buyer, (ii) assume responsibility for compliance by Buyer with the provisions of each License together with the obligations set forth in these General Terms and Conditions of Sale, in particular as set forth in Articles 2.2, 2.3, 2.5, 4.1 and 5.5 below.
Products and Services shall mean any marketing, technology and strategy consulting, media and corporate finance services, reverse engineering/costing services, performance analysis and/or systems design and characterization, as well as IP and patent analysis proposed by Yole Group worldwide. Products and Services are either established in PowerPoint and delivered in PDF or established and delivered in Excel format, and are divided into two categories:
- Standard products which take the form of yearly Reports, quarterly Monitors, weekly Teardown Tracks sold either on a unit basis or as bundled offer for a specific period (“Standard Products”) and,
- Certain specific services rendered by Seller and tailored to specific requirements identified by Buyer (“Custom Services”).
Reports are established in PowerPoint and delivered in a PDF format with an additional Excel file. They may include 30 min of Q&A session with an analyst/author. More time can be allocated on a fee basis.
Monitors are established and delivered in Excel. An additional PDF can also be added. Q&A with an Analyst is possible for each monitor (except where specified otherwise). Frequency of the release vary according to the monitor or service (quarterly and monthly).
Teardown Tracks are established on an online library format, with information and data directly accessible on dedicated pages. Information and data extracts can be downloaded in PowerPoint and delivered in a PDF format with an additional Excel file. They involve pictures and data provided pursuant to a subscription service. Each Teardown Track may include 30 min of Q&A session with an analyst/author. More time can be allocated on a fee basis.
“License”: License shall mean, with respect to each Report, Monitor or Teardown Track, the License as proposed by Yole Group whose terms shall entitle Buyer to access an online portal or, on demand, downloadable PDF, and Excel files accessible off-line, and to view, pursuant to the applicable License terms, features and specs of a device or component based on a complete teardown process. Buyer shall select either a Multi-User License or a Corporate License.
• Multi-User License: A Multi-User License may be selected by Buyer solely for a Teardown Track. A Multi-User License shall entitle the Buyer Identified User to share the corresponding Teardown Track and associated IPR only within the Buyer Company. Pursuant to a Multi-User License, no rights can be sub-licensed by a Buyer Identified User to any persons having a contractual arrangement with any Subsidiary or with a Joint Venture involving Buyer.
• Corporate License: A corporate license to a Report or Monitor or Teardown Track shall entitle, during the agreed contractual period, Buyer Identified User to access and, subject to applicable geographical limitations, thereafter, share the corresponding Report, Monitor or Teardown Track, and associated IPR with an unlimited number of persons working for the Buyer Company on a worldwide basis so long as such persons have a contractual arrangement with an Authorized Subsidiary of Buyer. Pursuant to a Corporate License, rights can be sublicensed to a Subsidiary of Buyer.
“Intellectual Property Rights” (“IPR”) shall mean any rights held by the Seller in a Report or Monitor or Tear Down Track , or in any other Product sold or Service rendered by Seller, including any patents, trademarks, registered models, designs, copyrights, inventions, commercial secrets and know-how, technical information, company or trading names and any other intellectual property rights or similar in any part of the world, notwithstanding the fact that such IPR has effectively been registered or not, and shall include any pending registration of one of the above mentioned rights.
SCOPE: EXCEPT FOR SUCH TERMS THAT HAVE BEEN SPECIFICALLY ACCEPTED BY SELLER IN WRITING, ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS AND CONDITIONS IN ANY DOCUMENTS ISSUED BY THE BUYER ARE HEREBY OBJECTED TO BY SELLER, ARE DEEMED WHOLLY INAPPLICABLE TO ANY SALE MADE OR LICENSE GRANTED BY SELLER AND SHALL NOT BE BINDING IN ANY WAY ON SELLER.
2. DELIVERY OF PRODUCTS
2.1 Delivery of a Product or Service by Seller shall occur as per the provisions of the corresponding License, upon payment as per the Buyer’s Order duly accepted by SELLER and the process described below.
2.2. Delivery of Products shall generally be made by Seller through electronic means, either by email via the Seller sales organization, or automatically through online access granted by Seller via an email/password.
2.3. Delivery of Teardown Tracks shall occur as of the date of first publication on our website of the basic data and pictures of a Teardown.
2.4. Buyer Identified User shall immediately verify the conformity of a Product or Service with Buyer requirements. Any claim for non-conformity, including defective electronic delivery format must be made in writing by Buyer to Seller at the latest within eight (8) days from the date of the original download or receipt of said Product or Service. To support a claim, Buyer undertakes to produce sufficient evidence of any alleged non-conformity. Seller shall not incur any liability if Buyer fails to comply with the required notification requirements.
2.5. Seller shall in no event be responsible for any delay in delivery of a Product or Service in cases where a new event or access to new information requires the Seller analyst to dedicate extra time to compute or compare the data with the aim to enable Seller to deliver a Product or Service corresponding to Seller’s quality standards.
2.6 Buyer shall be responsible for ensuring that Buyer’s platform has the required capacities and authorizations to receive the Product(s) and Services sent by Seller by email. Seller and Buyer shall each ensure that their respective libraries and data transfer systems used for the purpose of enabling data transfer as described herein, are free from viruses or any form of malware which may compromise the security of any data transmission between Seller and Buyer.
3. ORDERS, PRICES, INVOICING AND PAYMENT
3.1 An order from buyer shall be deemed accepted by Seller only upon written acceptance and confirmation by Seller at the latest within seven (7) days from receipt of said order from Buyer. In the absence of any such written acceptance and confirmation no order shall be considered binding upon Seller.
3.2 Prices provided by Seller are provided on a unit basis for each License or Service sold or for each annual subscription and any applicable taxes in the country where the Seller is based will be added. Prices are re-evaluated from time to time by the Seller. The effective price is deemed to be the one applicable at the time of the Buyer’s order accepted and confirmed by Seller.
3.3 Payments due by the Buyer shall be made as set forth in the order accepted and confirmed by Seller to the account in the name of Seller indicated in said order.
To secure the payments due to Seller, Seller reserves the right to request down payments from Buyer. The need for a down payment must be mentioned on the corresponding order accepted by Seller.
3.4 If Buyer fails to pay at the due date as set forth in an order from Buyer accepted by Seller and fails to request and obtain from Seller a payment extension, the latter shall be entitled to invoice interest in arrears based on the annual rate Refi of the «BCE» + 7 points, in accordance with article L.441-6 of the French Commercial Code.
3.5 Seller publications (Reports, Monitors, Teardown Tracks…) are due for delivery only after receipt by Seller of any payment due by Buyer prior to delivery.
3.6 In the event of termination by Seller of an order which is attributable to a breach by Buyer of one or more of its obligations, Seller shall have the right to invoice all work performed by Seller at the time of termination, as well as the right to claim for damages for breach.
4.1 Buyer Identified User shall be responsible for the choice of all Products and Services purchased on behalf of Buyer, and Buyer shall take responsibility for (i) the use and interpretations the Buyer makes of the documents purchased and (ii) the results Buyer obtains based on such use or interpretations, including but not limited to its own advice and any acts Buyer bases thereon.
4.2 Seller warrants that all the information contained in the Products and Services has been obtained from sources believed to be reliable. Seller does not however warrant the accuracy, completeness adequacy or reliability of such information, which furthermore cannot be guaranteed to be free from errors.
4.3 Any Standard Product that Seller commits to sell to Buyer, may, upon notice to Buyer, from time to time be modified by Seller or substituted with a similar Product with the written consent of Buyer.
4.4 If the deadline that Seller has committed to provide for the delivery of a Product cannot be achieved, Seller shall immediately inform Buyer and both Seller and Buyer agree to negotiate the extension of such deadline in good faith.
4.5 SELLER DISCLAIMERS
4.5.1 Seller does not make any warranties, express or implied, including, without limitation, any representation or warrantee relating to ability and fitness for a particular purpose with respect to any Products or Services, and Seller shall not incur any liability with respect to the delivery of Products or Services, or for any errors, omissions or inaccuracies contained therein, except in the event Buyer can prove serious harm to Buyer resulting therefrom which can be deemed solely attributable to gross negligence or willful misconduct of Seller.
4.5.2 Notwithstanding the fact that certain persons within an organization may be entitled to access a Product, Service or License pursuant to a Multi-User License, Seller shall in no event incur any liability in any form whatsoever, if Seller in response to a demand from one or more persons working within an organization for organization holding a Multi-User License directly enters into an agreement with Seller for the sale of one or more Products, Services or licenses to the requesting person(s).
5. PROTECTION OF THE SELLER’S IPR
5.1 All the IPR attached to Products and Services are and remain the property of Seller and are protected under French as well as international copyright law and conventions.
5.2 Buyer agrees not to disclose, copy, reproduce, redistribute, resell or publish a Product, or the content of a Service or any part thereof to any other party other than, where duly authorized by Seller, to persons working for Buyer. Buyer shall have the right to use Products solely for its own internal information purposes. In particular, Buyer shall not in any event unless otherwise specifically agreed in writing by Seller, use any Product or the content of any Service for purposes such as:
• Information storage and retrieval systems.
• Recordings and re-transmittals over any network (including any local area network).
• Use in any timesharing, service bureau, bulletin board or similar arrangement or public display.
• Posting any Product to any other online service (including bulletin boards or the Internet).
• Licensing, leasing, selling, offering for sale, or assigning a Product or any derivative thereof.
5.3 If Buyer would like to use data coming from a Product or Service for presentations, press announcements and any other projects, Buyer must first contact Yole Group’s Public Relations Director (email@example.com) to receive an official authorization therefor and confirmation that the data is up to date. Seller may furthermore require Buyer to use for such presentations data provided by Seller in a format suitable for public use.
5.4 Buyer shall be solely responsible towards Seller for any infringement of the obligations described in Article 5.3 above, whether such infringement originates from Buyer’s employees or any person to whom Buyer has sent a Product or provided a Service or License. Furthermore, Buyer shall initiate and personally take care of any related proceedings in coordination with Seller, and Buyer shall bear all related financial consequences in their entirety.
5.5 Buyer Identified User shall assume responsibility in the name of Buyer, for compliance with all copyrights and other obligations relating to the protection of Seller’s IP rights.
5.6 It is acknowledged and accepted by Buyer that whether purchased in the form of Bundles or Annual Subscription, all unselected reports will be deemed cancelled and may no longer be claimed after a period of 12 month following the date of the original purchase.
5.7 It is further acknowledged and agreed by Buyer that any investor in Buyer, any external consultant of Buyer or any joint venture made with a third party in which Buyer is involved, shall not be entitled to use a Product or Service, unless such consultant or joint venture effectively pays directly to Seller the full price for a license to for such Product or Service.
Buyer shall only be entitled to cancel an order with Seller in whole or in part or to postpone the date of a mailing, provided Buyer agrees to indemnify Seller for the entire costs that have been incurred by Seller as at the date of notification by Buyer of such delay or cancellation. However, in no event shall such cancellation charges exceed, as the amount of the cancelled order, or the fee charged with respect to items for which a postponed mailing is requested by Buyer.
In the event Seller should fail to comply with a core contractual obligation of Seller, Buyer may send a written notification to Seller requiring Seller within a period of thirty (30) days to comply with said obligation, and if Seller shall still fail to do so, Buyer shall be entitled to terminate the pending order without being liable for any compensation with respect to such terminated order.
7.1 All the provisions of these General Terms and Conditions of Sale are for the benefit of Seller, but also for that of its licensors, resellers and agents. (Each of them is entitled to assert and enforce these provisions against the Buyer).
Any notices under these Terms and Conditions shall be given in writing and shall be effective upon receipt by the other Party.
7.2 Seller may, from time to time, update these General Terms and Conditions of Sale, and the Buyer, shall be deemed to have accepted the then current version of such General Terms and Conditions of Sale, upon placement of an order by Buyer after the effective date of such update.
8. GOVERNING LAW AND JURISDICTION
8.1 Any dispute arising out or in connection with these General Terms and Conditions of Sale or to any orders delivered by Seller shall be submitted in first instance to the jurisdiction of the International Chamber of the Commercial Court of Paris (with proceedings to the extent allowed, being brought in English with no need to translate testimonies or documents into French) and in case of appeal to the jurisdiction of the International Commercial Chamber of the Paris Court of Appeals.
8.2 The laws of France, without reference to the provisions of French Law concerning conflict of laws, shall apply to all disputes between Buyer and Seller.