Definitions

"Seller" : Secure-IC (« SIC »), a French Société par Actions Simplifiée registered at the Rennes Trade Register under number 519 818 207 with registered offices at ZAC des Champs Blancs, 15 rue Claude Chappe Bât. B, 35510 Cesson-Sévigné, and 104 boulevard du Montparnasse, 75014 Paris.

“Offer” : Seller’s proposal of Products and/or Services, constituted by Seller’s Service Contract and/or Seller’s Technical Proposal.

"Customer" : the company or other entity buying the Products and/or Services.

“Service Contract” : the document provided by Seller to Customer addressing Customer’s requirements, containing a description of the Products and/or Services, their corresponding prices and, where applicable, a schedule of delivery/performance. The Service Contract includes a copy of these Terms and Conditions.

“Confidential Information”: all information that Seller may communicate to Customer pursuant to these Terms and Conditions, in written or other tangible form and marked “Confidential”, “Proprietary” or similar designation, or if disclosed orally or in non-tangible form, clearly identified as confidential at the time of disclosure. Confidential Information shall include, but not be limited to, the documentation and materials accompanying the Software, and more generally any business, commercial, technical or other information related to the subject matter of these Terms and Conditions (including without limitation, know-how, trade secrets, inventions, techniques, processes, algorithms, schematics, designs, contracts, prices, customer lists, financial information, product plans, sales and marketing plans and business information).

"Confirmation of Order" : express written acceptance of Customer’s order as transmitted by Seller.

“Intellectual Property Rights” : any and all (a) patent and patent rights; (b) rights in trade secrets, know-how, and other confidential information; (c) copyrights and similar rights; (d) trademarks and other rights relating to designations of source or origin; and (e) any other intellectual or industrial property rights applying to the Software.

“Licensed Rights” : the copyrights embodied in the Software to the extent Seller has the right and authority to grant the licenses with respect thereto as set forth in these General Terms and Conditions. "Price": selling price of the Products and/or Services as specified in the Confirmation of Order. The price includes royalties and, where applicable, maintenance and support fees.

"Products" : the products described in the Offer and provided to Customer pursuant to a corresponding Confirmation of Order. Products may consist of equipment including hardware devices and Software (as embedded on the hardware device or as provided on a separate medium for installation by Customer) or in Software only. Products are commercialized by Seller under its trademark. Products may be provided together with Third Party Hardware distributed by Seller.

"Services" : the services described in the Offer and provided to Customer pursuant to a corresponding Confirmation of Order. Services may include programming services, maintenance and support services, consulting services, training, or any other services provided by Seller to Customer hereunder.

"Software” : the computer programming code in any form and format, described in the Offer and provided to Customer pursuant to a Confirmation of Order, either as embedded in Products or as provided with the Products. Software may include or be provided with Third Party Software and/or Open Source Software.

“Open Source Software” : any software or work, including where appropriate, any and all modifications, derivative works, enhancements, upgrades, improvements, and/or fixed bugs, made to the source code of such software or work, released under an open source software license or a free software license (e.g. but not limited to (A) GNU General Public License (GPL), (B) GNU Lesser/Library GPL (LGPL), (C) the Artistic License, (D) the Mozilla Public License, (E) the Common Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Industry Standards Source License (SISSL), (H) BSD License, (I) MIT License, (J) Apache Software License, (K) Open SSL License, (L) IBM Public License, (M) Open Software License).

“Technical Proposal” : the technical document provided by Seller to Customer containing a description of the capabilities, functionalities and performances of the Products and/or Services (including, where applicable a description of Customer’s architecture and/or current system). The Technical Proposal may also include instructions of use installation and maintenance of the Products, technical or environmental recommendations, end-user manual(s), and/or technical specifications of the Products.

“Term” : the period of time specified in the Service Contract or if no term is specified the term shall be one (1) year from delivery of the Software which term shall renew automatically for additional one (1) year terms unless either party notifies the other party of its intention not to renew thirty (30) days before the then current anniversary date unless terminated earlier in accordance with these Term and Conditions or the EULA.

“Third Party Hardware” : third party hardware that is acquired by Seller from a third party supplier and that may be provided with the Products on Customer’s request, on an “AS IS” basis, without having been modified or tailored to Customer’s specific need and without warranty of any kind. Third Party Hardware may notably include peripherals, accessories or other elements that have not initially been installed or implemented by Seller on its Products, as well as monitors, keyboards and mice if they have not been included in the Offer. Third Party Hardware is not supported by Seller but by Seller’s third party supplier according to separate terms.

“Third Party Software” : any software provided in object code with the Software and that is integrated into the Products or provided on a separate medium along with the Products, and that has not been developed or edited by Seller. Third Party Software is owned and copyrighted by third party editors/suppliers of Seller and its usage by Customer’s subject to the acceptance of separate license terms.

“EULA” : end-user license agreement

Scope

These Terms and Conditions shall govern all quotations, offers, orders, Confirmation of Orders, invoices, sales of Products and/or Services between Seller and Customer and shall prevail over all conflicting clauses contained in the Customer’s general terms and conditions of purchase. If and where a separate contract is signed between Seller and Customer, the terms and conditions set forth in such contract shall take precedence and shall prevail over any conflicting clauses contained in the present Terms and Conditions. By placing an order, Customer expressly accepts these Terms and Conditions.

Estimates, Orders, Offer

The contract of sale shall be duly formed and shall come into force upon issuance by the Seller of the Confirmation of Order. Customers may issue purchase orders by mail, email or by fax. Each order shall contain the reference number (and date) of the corresponding Service of the Products ordered and shall duly be signed by Customer. No order shall be binding on the Seller unless and until it has been confirmed in writing by the Seller through a Confirmation of Order. Customer must check the Confirmation of Order and inform Seller immediately in writing of any possible error. Any modification of an order requested by Customer shall be subject to Seller’s written agreement. Orders cannot be cancelled. Only written Offers are valid for the duration indicated in the Offer. In case no duration is mentioned, the duration is ten (10) days from the date of the Offer. The prices, information and technical specifications contained in the Seller’s catalogues, brochures and price lists are given for information purposes only, and do not constitute an Offer as defined herein and shall not be binding on the Seller.

Price

For sales in France, and unless as otherwise expressly specified on the Confirmation of Order, the prices are quoted in Euros, V.A.T. excluded (and any other taxes, levies or bank fees excluded), Ex-Works France as defined by the INCOTERMS 2020. For international sales and unless otherwise expressly specified on the Confirmation of Order, the prices are quoted Ex-Works France as defined by the INCOTERMS 2020, in Euros for the countries of the European Union and in US dollars for all other countries, and exclude all taxes or whatever duties that are payable at the time of the acquisition, exportation and/or importation which shall be borne by Customer. Customer shall be responsible for obtaining all required export and import authorizations and shall bear all costs related thereto. If Customer is required to withhold any tax on such payments, then the amount of the payment will be automatically increased to totally offset such tax, so that the amount actually remitted to Seller, net of all taxes, equals the amount invoiced or otherwise due. The prices may be revised at any time without prior notice to Customer. But confirmed orders and outstanding deliveries at the effective date of the changes, shall not be affected by the price revision.

Invoicing and Payment terms

Unless otherwise specified in the Confirmation of Order, invoicing shall take place upon the Ex-Works delivery; payments shall be made net without any discount, to Seller’s address, and shall be due within thirty (30) days from the date of invoice. Unless expressly mentioned on the Confirmation of Order or on the invoice, Customer shall not be granted a discount for early payment. Discounts that may possibly be granted by Seller are subject to prior payment in full of the amounts due. Payments shall be made without any deduction or compensation. In the event of delay in payment, overdue amounts shall bear interest of three times the French legal interest rate. Moreover, Seller may suspend deliveries of Products or Services until complete payment of the concerned order. All applicable collection charges shall be paid by Customer.

Delivery

Unless otherwise specified, all delivery dates indicated in the Confirmation of Order are for information purposes only. No delay in delivery or incomplete delivery may justify cancellation of the order or constitute a ground for claiming penalties or damages. Seller shall automatically be released from any commitment relating to delivery dates in the event of non-performance or partial non-performance of Customer’s obligations. Deliveries can be spread out. The place of the delivery shall be indicated in the Confirmation of Order.

Transfer of Ownership and Risks

For deliveries in France, transfer of ownership of the Products (except the Software, which is only licensed to Customer) shall occur upon complete payment of the price of the Products. For international sales, Seller shall retain all title and ownership in and to the Products until the date of remittance of the Products to the first carrier. In the event of bankruptcy, winding up, liquidation of Customer, or any other similar proceedings, Seller shall have the right to claim for the property of the Products, in accordance with the applicable legal provisions. Unless otherwise agreed between the parties, the transfer of risks of the Products shall pass to the Customer upon Ex-Works delivery, as per the definition given by the International Chamber of Commerce Incoterms, 2020.

Acceptance

Article L133-3 of the French Code de Commerce shall govern the carrying and delivery of the Products. Remarks concerning shortages, excess or apparently damaged Products must immediately be clearly indicated on the transport documents. Any claims relating to the Products must be notified to the Seller within seven (7) days from the date of actual delivery. The Customer shall establish the reality of the defects found and shall grant the Seller every facility to ascertain the defects and to correct them. The Customer shall neither undertake any repairs itself nor cause any third party to undertake any repairs. No Product shall be returned without Seller’s prior authorization. Returns shall be sent at the Customer’s expenses and risks and shall be clearly marked with name and address of the Customer. In case all or part of the Products are returned, the unquestioned amount shall be paid on the agreed due date and the contentious amount shall be paid as soon as the matter is settled. The returned Products shall, at the Seller’s election, either be replaced, or repaired in the Seller’s workshops, or reimbursed, or deducted from future invoices.

Limits of use

Customer shall assume full responsibility for the choice of Products it orders hereunder and for its fitness to its particular technical and commercial needs.

Products Warranty

Seller warrants solely to Customer that the hardware elements of the Products sold to Customer under these Terms and Conditions are free from defects in material and workmanship and that they will perform substantially in accordance with the Technical Proposal for a period of twelve (12) months from the date of delivery of the Products (“Hardware Warranty”). As Customer’s sole and exclusive remedy for any breach of this Hardware Warranty, Seller will replace or repair such defective Products or parts and/or correct any performance problems in a timely manner following receipt of a written notice by Customer. The Hardware Warranty does not apply to Third Party Hardware. Unless otherwise provided by law, Seller warrants the repaired or replaced Hardware Products or parts under the same conditions for a period expiring either simultaneously with the initial period of Hardware Warranty or three (3) months after delivery of the repaired or replaced Products or parts, whichever is later.

This Hardware Warranty does not cover the “Additional Hardware maintenance services”, or on-site technical support/repairs and technical support.

The costs of transporting the Products from Customer’s premises to Seller’s premises shall be borne by Customer. Costs of return of the Products to Customer shall be borne by Seller. Unless otherwise agreed upon in writing between the parties, Seller warrants solely to Customer that the Software (as included or provided with the Products) shall conform substantially to the Technical Proposal for a period of three (3) months from the date of delivery of the Software (“Software Warranty”). As Customer’s sole and exclusive remedy for any breach of this Software Warranty, Seller will correct or by-pass any reproducible errors or defaults which appear in its Software in a timely manner following receipt of a written notice by Customer. Unless as otherwise specified in the Confirmation of Order, the Software Warranty does not cover preventive maintenance services or provision of upgrades, or modifications of configuration or computing environment. The Software Warranty does not apply to Third Party Software or to Open Source Software.

Seller disclaims all warranties (Hardware and Software Warranties) and liability if the defects or non-compliance of the Products are caused by:

• Customer’s non-compliance with the instructions of use, installation, maintenance, or where applicable security policy of the Products contained in the Technical Proposal (or in any other technical documentation provided to Customer before or at the time of the order), and/or in the Service Contract; or
• Improper installation by Customer, misuse, mishandling or improper maintenance of the Products; or
• Acts of vandalism, fire, humidity, bad weather or other external causes (e.g., radio-electric interference produced by other equipment, variation in voltage of the main supply and/or telephone line); or
• Use of the Products in combination with, in connection with or as integrated into software, hardware or equipment not supplied by the Seller, unless such combination connection or integration has been expressly approved in writing by the Seller; or
• Use of the Products for a purpose other than that for which it is intended; or
• Faults and deterioration caused by normal wear and tear, a shock or a fall; or
• the Products’ non-compatibility or non-interoperability with Customer’s software and/or hardware or with third parties add-on software and/or hardware which are connected to the Products; or
• a weakness, flaw or breach in the security of Customer’s architecture or system not directly and exclusively caused by the Products; or
• Changes made to the Products, including mandatory changes; or
• Products on which Seller’s trademark, proprietary notices or serial numbers have been removed or altered; or
• Maintenance of the Products or support intervention by a third party not previously authorized by Seller; or
• Unless otherwise expressly stated in the Technical Proposals of the Products, by act of computing piracy, (notably if the defects are caused by viruses, worms or other similar attacks); or,
• Third Party Software, Third Party Hardware and/or Open Source Software.

The warranty services may be provided by phone during work hours or by Internet. Third Party Hardware and/or Software are repaired, corrected or replaced in accordance with the warranty terms and periods of their manufacturers or editors.

Unless otherwise stipulated by law, any and all warranty provisions other than those mentioned herein are expressly excluded. The Seller disclaims any other warranties, whether express or implied (including, without limitation, warranties of merchantability and fitness for a particular purpose, warranty of non-infringement or warranty arising from a course of dealing, usage or trade practice and any warranty that the Software will operate properly on any device(s)) concerning the Products or its accompanying documentation. Any specific or additional warranty provided by Customer to end users of the Products shall be under Customer’s sole and exclusive responsibility.

Services Warranty

Seller undertakes to perform the Services in good faith, using reasonable care and skill. Seller makes no express or implied warranty or representation of any kind, as to the sufficiency, accuracy or fitness for a particular purpose of the Services performed hereunder and/or of the conclusions of any searches, analysis, audit or investigation conducted by Seller.

Liability

In no event shall the Seller be liable for any indirect, immaterial, incidental, special, punitive and/or consequential damage (such as but not limited to financial or commercial losses, business interruption, loss of profits, loss of business reputation, loss of turnover, loss of sales, of earnings, of goodwill, loss of data, loss by reason of plant shutdown, non-operation, service interruptions) arising out of the use or inability to use the Products regardless of the form or ground of action, whether in contract, tort (including negligence) strict product liability or otherwise, even if the Seller has been advised of the possibility of such damages. Unless otherwise provided by law, Seller’s total cumulative liability, and Customer’s sole remedy, for direct damage caused by Seller’s breach of its obligations hereunder (including in case of Intellectual Property Rights infringements), shall in any case be limited to 15% of the amount of the order (as confirmed by a Confirmation of Order) in due course at the time of the breach. Each party shall bear its own attorney fees.

License Grant

Seller (or its licensors) shall retain title to and ownership in all Intellectual Property Rights in and to the Products, including, where applicable, in any improvements, enhancements, bug fixes, modifications and any other derivative works of the Software.

Subject to these Terms and Conditions Seller grants to Customer, under the Licensed Rights, a limited, personal, royalty bearing, non-exclusive, non-transferable (except as provided hereafter), non-assignable, without right to sublicense, license in the field of use and territories specified in the Service Contract and/or the Confirmation Order and only for the Term to: Install and execute the Software (and its accompanying documentation) in object code form only in conformity with its intended use, on the number of machines specified in the Confirmation of Order, or, if no number is specified, on only one (1) single machine;

Any other right of reproduction or right of representation not expressly granted herein, as well as the right of adaptation, are not granted.

Customer shall not use the Software otherwise than as provided above; including that Customer shall not:

a. Use the Licensed Software on more than the authorized number of Products; b. Modify, adapt, develop, translate, reverse engineer, decompile, disassemble, create derivative works based upon, or copy (except as provided above or for authorized back-up purposes) or otherwise exploit the Licensed Software through any means and on any media. In the event Customer has to ensure interoperability of the Licensed Software with its computer environment, as restrictively permitted by section 122-6-1 of the French Intellectual Property Code, Customer shall inform Seller of the need of such interoperability and Seller may at its option either (i) provide such information and materials as are necessary to Customer to enable such interoperability or (ii) make any necessary modification of the Licensed Software to enable such interoperability; c. Redistribute or transfer the Licensed Software to any third party or permit any third party to use, copy or reproduce the Licensed Software; d. Rent or lease the Licensed Software; e. Remove any proprietary notices, labels or marks on the Licensed Software; f. Disable any security or controlling measures that may protect portions of the Licensed Software.

Subject to Seller’s limitation of liability, Seller undertakes to defend the Customer against all claims that the normal and authorized use of the Product infringes any copyrights of any third party in the country(ies) in which the Products are sold, subject to the Customer promptly notifying the Seller in writing of any such claim and giving reasonable assistance upon request. If the Products are held by a final judgment to infringe any copyright or other Intellectual Property Right or if a claim is made or Seller reasonably believes a claim may be made, the Seller may, at its election, but is not obligated to:

• obtain at its expenses the right for the Customer to continue using the Product; or
• replace the infringing Product with equivalent, non-infringing equipment; or
• modify the infringing Product so that it becomes non-infringing; or
• cancel the order or terminate the contract and repurchase the infringing Products from the Customer at a price equal to the purchase price paid for the Products, less depreciation in an amount to be determined by the Seller.

The uploading of the design code by the Customer (“Customer Design Code”) on the Licensed Software is at Customer’s own risks. Seller shall not warrant the security of Customer Design Code.

Customer does not acquire any rights in the Software (including any copies, portions, extracts and derivatives thereof) other than those expressly granted herein under the Licensed Rights and Customer agrees and acknowledges that Customer does not and shall not have any other rights, whether by implication, estoppel, or otherwise, with respect to the Software or any Intellectual Property Rights relating thereto.

Third Party Equipment Operating Systems and Software

Customer hereby acknowledges that the Products are intended to be used with computer equipment manufactured by other parties and operating systems as well as with other software products distributed by third parties including open source software, and that such equipment and software are not provided under this agreement. Customer is responsible for acquiring and maintaining such equipment and software, the utilization rights of such software, and for the overall effectiveness and efficiency of the operating environment in which the Products are to function. Seller does not make any representation, warranty, or understanding concerning the suitability, availability or performance of any equipment or software for use with the Products provided hereunder.

Some third party technology may however be embedded in some Products and is specified in the Product documentation. Specific files of such third party technology may be licensed under the Mozilla Public License, Common Public License, GNU Lesser General Public License, Netscape Public License or similar open source license (collectively, the " Open Source Licenses" ).

Seller shall inform you of any notices that are related to the Open Source Licenses in at least one of the following ways, at Seller's sole discretion: (a) automatically installed with the Products; or (b) in the Product documentation. Customer’s rights and obligations with respect to such technology shall be as set forth in the applicable Open Source License.

No Trademark License

Except as may be provided in the Confirmation of Order, nothing in these Terms and Conditions or its performance shall grant Customer any right, title, interest, or license in or to any names, logos, logotypes, designs, or other trademarks of Seller for use in branding of any Customer product or service offering.

No Trademark License

Seller is authorized to partially sub-contract its commitments described in this Agreement.

Seller will be responsible for the performance of the subcontractor to the same extent that Seller is responsible for its own performance under these Terms and Conditions

Export control/ required authorization

The Software and/or Products may contain encryption technologies/software or other technologies/software subject to control of exportation (“Restricted Components”). Seller provides such Restricted Components in accordance with the French and E.U. export regulations. Export, re-export or import of such Restricted Components may require action on Customer’s behalf prior to purchase and it is Customer’s responsibility to comply with all applicable international, national, state, regional and local laws, and regulations, including any applicable import and use restrictions. By purchasing or using the Products, Customer agrees to the foregoing and to all applicable export control laws. Customer agrees to indemnify and hold Seller harmless from and against any liability (including fines or legal fees) incurred by Seller with respect to any activities by Customer in violation of its obligations of international trade laws and regulations.

Force majeure

Either party’s obligations shall be suspended and such party shall incur no liability if it is prevented from performing its obligations by an act of God or by any other cause beyond Seller’s reasonable control (e.g., but not limited to fire, flood, tornado, earthquake, riot, strike, war, lockout, transport and supply difficulties, public authorities’ actions, fluctuation of exchange rate, natural disaster). If such a situation lasts more than two (2) months, this Terms and Conditions may be terminated by one or the other party, without penalty.

Confidentiality

Customer shall keep confidential and not disclose or otherwise make available to any third party any Confidential Information. Customer shall take the same level of care in preserving the confidential nature of the Confidential Information as it would take to preserve the confidentiality of its own Confidential Information of same importance, but in no event less than reasonable care. Notwithstanding anything to the contrary in the Confirmation of Order, the obligations of confidentiality shall extend three (3) years after the disclosure of the Confidential Information. The obligations of confidentiality shall not apply to any Information which (i) is or later becomes publicly known or available without breach of these Terms and Conditions by receiving party (ii) is lawfully obtained by receiving party from a third party which is not under an obligation of confidentiality to the disclosing party with respect to such information or (iii) is disclosed by the receiving party pursuant to a judicial order or by operation of law but then only to the extent so ordered or requested; in such case the receiving party shall use its best efforts to inform the disclosing party timely in advance of the disclosure. Trade secret information shall remain confidential indefinitely.

Termination

Either party may terminate these Terms and Conditions for cause upon 30 days’ prior written notice in the event the other party is in material breach of these Terms and Conditions and fails to cure the default within the 30 day period following written notice except that no “cure” period shall apply to breaches of the Confidentiality provisions hereof. In the event of a breach of the Confidentiality provisions, the non-breaching party shall have the right to terminate this Agreement immediately upon notice to the other party. These Terms and Conditions may be terminated immediately upon written notice, by either party in the event the other party becomes insolvent or admits in writing its inability to pay its debts as they become due or makes an assignment for the benefit of creditors. The following sections shall survive termination or expiration of these Terms and Conditions for any reason: Liability, Confidentiality, Termination, Customer Specific Obligations, Dispute Resolution and Governing Law, and Miscellaneous.

Customer’s specific obligations

In addition to the other obligations defined elsewhere in these Terms and Conditions, Customer acknowledges and accepts that it shall collaborate in good faith with Seller and communicate in a timely manner all relevant, necessary or useful information in its possession that may negatively impact the provision of Products or Services hereunder. Also, Customer shall comply with all technical and environmental prerequisites contained in the Offer promptly before Seller’s interventions. Customer is solely responsible for the choice of the Products and of their suitability to the use it intends to do of them. Customer shall also take charge of the backup, security, integrity and confidentiality of any data (including personal data) that is treated or contained on its system. Customer shall use the Products in accordance with their corresponding Technical and Service Contracts and in conformity with the specific purpose indicated in such Proposals.

Good Faith

This Agreement must be performed in good faith by the Parties in accordance with Article 1104 of the French Civil Code.

Dispute resolution and governing law

These Terms and Conditions shall be governed by the laws of France. The courts of Paris, France, shall have sole and exclusive jurisdiction. For international sales the application of the United Nations convention on Contracts for the International sale of goods signed in Vienna in 1980 shall be excluded.

Miscellaneous

If any provision of these Terms and Conditions or part thereof is or becomes invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof or parts thereof shall not in any way be affected or impaired. Seller may transfer or assign its rights and obligations under these Terms and Conditions to any third party without Customer’s prior consent. Customer shall not transfer or assign in whole or in part its rights and obligations under these Terms and Conditions without Seller’s prior written consent. Seller may subcontract all or part of its undertakings. Any and all notices shall be made in writing and sent to a legal representative of the other party by registered letter with acknowledgment of receipt. No derogation or modification of these Terms and Conditions shall be considered as accepted unless and until it has been formalized in a written amendment duly signed by Seller and Customer.