General terms of use
Last updated: 7th March 2022
INTRODUCTION
Tractebel Digital is a platform aiming at presenting all the digital solutions and services offered by the Tractebel Group Worldwide.
These General Terms of Use (“General Terms”), along with any applicable Additional Terms (see section 1.3 (Additional Terms) below) (collectively, the “Terms”) govern your use of and access to our platform, customer support, discussion forums or other interactive areas or services and services (collectively, the “Services”) and software that we include or may include as part of the Services, as well as any applications, including mobile applications, Sample Files and Content Files (defined below), scripts, instruction sets and related documentation (collectively, the “Software”).
As a professional customer yourself or on behalf of and for the account of a business or an organization (the “Customer”), you wish and are legally authorized to acquire new information technology Softwares and to use a SaaS service offered by us, i.e. the Tractebel Services and Software, in connection with business operations.
The General Terms are available at https://digital.tractebel-engie.com/tractebel-digital-general-terms-of-use/ upon selecting the respective country. The Customer is deemed to have read the General Terms and to have duly accepted it without reservation by checking the corresponding box.
In any case, you must be 18 or older to create a Tractebel ID.
DEFINITIONS
All capitalized terms used in the General Terms and not otherwise defined herein shall have the following meanings assigned to them:
1) “Access Credentials” refers to the usernames, passwords and/or other credentials enabling an Authorized User to access and use the Software.
2) “Additional Terms” refers to one or more of the additional terms applicable to your license. The Additional Terms are available at the websites’ addresses specified in the Purchase Order when applicable.
3) “Affiliated Entity” refers in respect of any Party, to any person that, directly controls, is directly or indirectly controlled by, or is under common control with such Party. For the purposes of this article, “Control” means that the Party has the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company.
4) “Agreement ” refers to either: – a set of documents including or incorporating by reference the description of the License (indicating the expected functionalities, services and price), the confirmation email of the Purchase Order, these General Terms, Additional Terms, disclaimers and any individual agreement applicable to the License ; or – an order placed online that is validated by an authorized signatory of the Customer and that includes or incorporates by reference the description of License (indicating the expected functionalities, services and price), the confirmation email of the Purchase Order, these General Terms, Additional Terms, disclaimers and any individual agreement applicable to the License.
5) “Authorized User” refers to any person, including but not limited to, employees, agents or independent contractors, working under the instructions of the Customer and who is duly authorized by the Customer to access and use the Software.
6) “Business Day” refers to any day excluding weekends.
7) “Confidential Information” refers to the technical data, the financial data, statistics and other commercial data regarding the activity of either of the Parties and any other information of a clearly confidential nature or identified expressly as confidential by the Customer or Tractebel. This refers in particular to all of the methods, models, training materials, software and Softwares of the Parties as well as the designs, expertise, structures, techniques, inventions, developments, processes, discoveries, improvements, data and proprietary software. Confidential Information does not include any information that: (i) is generally available to the public other than as a result of disclosure by a Party in breach of this Agreement; (ii) is known by a Party before receipt from the other Party; (iii) is independently developed by or for the receiving Party without using any Confidential Information; or (iv) is lawfully obtained by the receiving Party and, as far as the receiving Party is aware, has not been obtained in violation of, and is not otherwise subject to, any obligation of confidentiality.
8) “Configuration” refers to the technical prerequisites defined in the Service Package and Purchase Order) corresponding to the Customer’s computing facilities (hardware, operating system, software, subscription to internet access services) required to access and use the Software and in a general manner, to allow the TRACTEBEL to provide the Services.
9) “Consulting Services” refer to the professional services provided by a mobility expert with regards to the Report obtained from the Software, as defined in the Service Package and Purchase Order
10) “Correction” refers to a lasting solution provided by Tractebel in order to remedy a Default or a malfunction in the Software in a definitive manner.
11) “Content” or “Customer Data” refers to all the information provided by the Customer and entered and/or uploaded into the Software by the Customer, any Authorized User or by Tractebel on the Customer’s behalf. For the avoidance of doubt, Customer Data does not include Results or any other information reflecting the access or use of the Services by or on behalf of the Customer or any Authorized User.
12) “Data Protection laws” refers to the European Union General Data Protection Regulation n° 2016/679 (“GDPR”), as may be amended from time to time, and all regulations relating to the protection of personal data applicable to the Services or to Tractebel.
13) “Default” refers to any anomaly that cannot be attributable to the Customer Configuration, remains repetitive and reproductible and making (i) the use of the Software or one of its functions impossible; (ii) having a material negative impact on the use of the Software ; or (iii) leading to incorrect results.
14) “Effective Date” refers to the date of the Purchase order confirmation e-mail from Tractebel sent to the Customer.
15) “Force Majeure” refers to any exceptional and unforeseeable event or circumstance (a) which is beyond a reasonable Party’s control, (b) which, having arisen, such Party could not reasonably have avoided or overcome, and (c) which is not substantially attributable to the other Party. Force Majeure may include but shall not be limited to exceptional events or circumstances of the kind listed below as long as the conditions (a) to (c) here above are satisfied: war, hostilities, rebellion, revolution, insurrection, riot, epidemics, quarantine and/or natural catastrophes such as earthquakes, hurricanes, typhoons, or volcanic activity.
16) “General Terms” refers to these General Terms of Use
17) “Harmful Action” refers to anything or any device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of the Software or any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including, but not limited to, worms, trojan horses, viruses, hacker attacks, botnets of zombie computers and other similar things or devices.
18) “Intellectual Property Rights” refer to any and all rights, titles and interests whether arising or granted in any jurisdiction in and to any and all (i) patents, utility models, designs (whether registered or unregistered), trademarks and trade and business names, copyrights (including copyrights in programs and semiconductor topographies), software rights, domain names, databases, moral rights, trade secrets, confidentiality and other proprietary rights including all rights to know-how and other technical or Confidential Information, rights in the nature of unfair competition rights, rights to sue in passing off; all of the foregoing whether registered or not, whether perfected or not; (ii) the benefit of all registrations and applications to register any of the foregoing; (iii) any and all other rights similar or analogous to any of the foregoing.
19) “Landing Page” refers to the web address to access the available Sofwtare. This page contains various information related to the Software as well as related to Tractebel. It is the only official entry point to access the Software.
20) “Normal Business Hours” refers to 9:00 to 17:00 local Brussels time, each Business Day.
21) “Personal Data” refers to all personal data as defined in the Data Protection laws.
22) “Purchase Order” refers to the Customer’s official document issued online to formally request the provision of the Services by Tractebel. Unless otherwise provided, Purchase Order shall be necessary for using the Services and Software.
23) “Remuneration”, “Fees” refers to the amount to be paid to Tractebel for the Services and Software.
24) “Report” refers both to the pdf report validated by the mobility expert and to the information which can be exported from the Software in MS excel format.
25) “Result(s)” refers to any knowledge developed or perfected under the Agreement and all the documents which formalize them, on any media whatsoever, whether copyrighted and/or copyrightable by restrictive instruments (patents, trademarks, designs, models, etc.), or by restrictive rights (software programs, software utilities, design, etc.) or that are not protected by instruments or restrictive rights (expertise, algorithms, unpatented creations, etc.).
26) “Service Levels” refers to the quality levels of the service and the performance applicable to the Services, as described in the Service Package and Purchase Order
27) “Services” refers to the provision of access to and use of the Software in SaaS mode, including provision of Consulting Services on the Report(s) obtained from the Software, as defined in the Service Package and Purchase Order
28) “License” means the combination of services, including access and use of the Software, and consultancy services provided by a mobility expert, proposed by the Software according to Customer’s needs.
29) “Services” refers to the use of and access to our platform, customer support, discussion forums or other interactive areas or service.
30) “Software” refers to the software that we include as part of the Services, as well as any applications, including mobile applications (when available), Sample Files and Content Files (defined below), scripts, instruction sets and related documentation (collectively, the “Software”). The Software is accessible in SaaS mode, meaning that it is accessible online, and the required functions of which are described in the Purchase Order. The access to the Software is given through the Landing Page. The Software is not intended to be used on a mobile device.
31) “Support Team” refers to Tractebel’s team in charge of handling the Customer’s requests.
32) “Term” or “Period”refers to the period from the Effective Date and until the termination of the License.
33) “Terms” refers to the General Term and Additional Terms.
34) “Third Party” refers to any individual or legal entity other than a Party.
35) “Upgrade” refers to a version of the Software with significant and substantial changes, with operational improvements or modifications made to the Software, which may be provided to the Customer, free of charge. Any Upgrade is indicated by changing the version number of the Software.
36) “Workaround” refers to any procedure or solution for the cause of a reported malfunction, provided as an emergency measure by Tractebel, other than a Correction, allowing for a degraded operation of the Software in terms of operation, technique and ease of use, which is acceptable to the Customer; it corrects but does not cure an issue; a Workaround also implies if necessary, a modification to the recordings in the database by Tractebel. A Workaround provides a temporary and transient solution and must be subject to a Correction within the given deadlines.
1. YOUR AGREEMENT WITH TRACTEBEL (“AGREEMENT”)
1.1. Choice of Law and Contracting Entity
These General Terms and all obligations arising out of them are governed by the Belgian law Belgium; the application of private international law and the United Nations Convention on the International Sale of Goods (CISG) shall be excluded.
Your relationship is with Tractebel Engineering SA, whose registered office is located at Boulevard Simon Bolivar 34-36, 1000 Brussels, and registered at the BCE under number 0412.639.681 (“Tractebel” or “We”, “Us”).
1.2. Updates to General Terms
We may make changes to the General Terms from time to time and if we do, we will notify you by revising the date at the top of the General Terms and we may provide you with additional notice. You should look at the General Terms regularly. Unless otherwise noted, the amended General Terms will be effective immediately and your continued use of our Services and Software will confirm your acceptance of the changes. If you do not agree to the amended General Terms, you must stop using our Services and Software and inform us of your decision. In such case, you agree that Tractebel will not have to reimburse the fees to the Customer for such part of the Services which have been performed in full conformity with the Agreement.
1.3. Additional Terms and Disclaimers
Our Services and Software are licensed, not sold, to you and may also be subject to one or more of the additional terms (“Additional Terms”) and/or disclaimers.
If there is any conflict between the terms in the General Terms and the Additional Terms or Disclaimers, then the Additional Terms or Disclaimers govern in relation to that Service or Software. If there is any conflict between the Additional Terms and the Disclaimers, then the Disclaimers govern in relation to that Service or Software.
The Additional Terms and Disclaimers are subject to change as described above (Updates to General Terms) and available at the web site’s address specified in the Purchase Order when applicable.
Customer is deemed to have read the Additional Terms and Disclaimers and to have duly accepted them without reservation by checking the corresponding box.
1.4. Purchase Order with Deviations and/or supplements to the Terms
Any deviations and/or supplements to the Terms require the express written approval of Tractebel for their validity. Such deviating agreements shall only apply to the Purchase Order that contains the deviating agreement and shall not have any prejudicial effect for other Purchase Orders.
2. “BUSINESS USER” AND “CUSTOMER’S RIGHTS”
Since you received an “Entitlement” (which is defined as the right to use, access and consume the Software and Services) from an organization or group, including but not limited to a business or any other commercial entity, government entity, non-profit organization or educational institution (each, a “Business”) or acting on behalf of your own business entity under one of Tractebel’s business plans, then (A) you are a “Business User” of such Business; (B) your Tractebel profile associated with such Entitlement is a “Business Profile”; and (C) all references to “you” or the “Customer” in these Terms will mean such Business.
As a Business User, you agree that, due to your receipt of Entitlements from such Business, (1) Tractebel may provide such Business with the ability to access, use, remove, retain and control your Business Profile and all Content therein whether uploaded or imported before or after the date these Terms were last updated; (2) your use of the Services and Software is governed by such Business’s agreement with Tractebel; and (3) Tractebel may provide your personal information to such Business.
If you are a Business User with Entitlements from multiple Businesses, you may have separate Business Profiles associated with each Business. As a Business User, you may have different agreements with or obligations to a Business, which may affect your Business Profile or your Content. Tractebel is not responsible for any violation by you of such agreements or obligations.
3. PRIVACY
3.1. Our Policy
For information about how we collect, use, share or otherwise process information about you and your use of our apps and websites, please see our Privacy Policy. You have the option to manage information preferences here.
3.2. Our Access to Your Content
Where permitted by law, we will only access to your Content (defined in section 5.1 (Content) below) in limited ways. For example, in order to perform the Services, we may need to access your Content to (A) respond to Feedback or support requests; (B) detect, prevent or otherwise address fraud, security, legal or technical issues; and (C) enforce the Terms. Our automated systems may analyze your Content in order to improve our Services and Software and the user experience.
3.3. Data Processing Agreement
You are responsible for your use of the Services and Software and for any Content you provide, including compliance with applicable laws, rules, and regulations. As a “Data Controller”, you should only provide personal information that you are allowed to process in accordance with the General Data Protection Regulation EU Regulation 2016/679 (“GDPR”).
Where customer information includes personal information and where you are considered a “Data Controller” and Tractebel is a “Data Processor” as defined under the GDPR, the terms of the Tractebel Data Processing Agreement (“DPA”) (available here), including the European Commission approved Standard Contractual Clauses, as applicable, shall apply to the processing of such personal information and are incorporated by reference into the Terms.
3.4. Sensitive Personal Information
You agree not to collect, process, or store any Sensitive Personal Information using the Services or Software. You agree not to transmit, disclose, or make available Sensitive Personal Information to Tractebel or Tractebel’s third-party providers. “Sensitive Personal Information” means an individual’s financial information, sexual preferences, medical or health information protected under any health data protection laws, biometric data (for purposes of uniquely identifying an individual), personal information of children protected under any child data protection laws and any additional types of information included within this term or any similar term (such as “sensitive personal data” or “special categories of personal information”) as used in applicable data protection or privacy laws.
3.5. Transfer of Personal Information
We process and store information in Belgium and the U.S. By using our apps and websites, you agree that you authorize Tractebel to transfer your personal information across national borders and to other countries where Tractebel and its partners operate. For example, personal information collected from users in Belgium will be exported outside of Belgium.
4. USE OF SOFTWARE AND SERVICES
4.1. License Required
Subject to your compliance with the Terms and applicable law, you may access and use the Services and Software that we make available and that you license from us. Your license expires at the end of the term set forth in your Purchase Order or the eventual Additional Terms to which it refers.
The version(s) of the Services and Software available at your renewal date may be different from the version(s) available when you first purchased your license from Tractebel. The versions of the Services and Software that Tractebel supports can be found here. You agree that your decision to use or purchase Software or Services is not contingent on the delivery of any future functionality or features or dependant on any oral or written public comments made by us regarding future functionality or features.
Tractebel undertakes and warrants that:
• It shall provide the Services and Software in accordance with the Terms and Purchase Order;
• Any Software (or in the event of any Upgrade) used and/or submitted to the Customer by virtue of a Purchase Order shall not be affected by or cause any Harmful Action;
• It is duly authorized to perform the Services and is not bound by any contract preventing it, in any manner, from honoring its obligations under the Terms and Purchase Order.
Unless expressly agreed otherwise, the license is subject to the payment of a remuneration to Tractebel.
4.2. License Types
The Services and Software can be categorized in different categories of license models. The license type is specified in the Purchase order.
The following licenses may be offered:
• “Named User” license means that the access to the Services and Software is limited to the persons at the customer’s company who have been named by the customer and for whom licenses have been validly purchased in accordance with this agreement.
• “Single” license means that the customer is entitled to use the Services and Software on one device or at one workstation.
• “Floating” license means that access to the Services and Software at any time is limited to a maximum number of Authorized Users, for whom valid licenses have been purchased in accordance with this agreement.
• “Company” license means that the customer is entitled to use t the Services and Software on several devices or simultaneously at several workstations within its company. To the extent such Company license does not explicitly specify the number of devices and/or workstations, such use is permitted without limitation in number. This does not include the use on devices and workstations of Affiliates of the customer. The purchase of additional Single licenses or a Group license is required for Affiliates.
• “Group” license means that the customer and its Affiliates are entitled to use the Services and Software on several devices or simultaneously at several workstations. To the extent the Group license does not explicitly specify the number of devices and/or workstations, the use within the customer’s group is permitted without limitation in number. The customer is also entitled to use the Software within a network or on other multiple station computing systems.
4.3. Tractebel Software
The scope of performance of the Software comprises the service features available at the respective time. The Customer is not entitled to further rights associated with the Software, such as ownership, copyright, patent, trademark, or usage rights.
Tractebel provides you the Software for use and enables access via the Internet as of the agreed date for the duration specified in the Purchase order or the eventual Additional Terms to which it refers. For this purpose, Tractebel directly or indirectly hosts Software. The Software can be accessed by the Customer via the Internet, e.g. via browser or app. During the licence period, the Customer is given the non-exclusive and non-transferable right to access the Software by means of a browser and an Internet connection and to use same for its own business purposes exclusively for the exercise of its commercial or independent professional activity. The Customer is responsible for the Internet connection between the Customer and the computer center and the hardware and software required for this purpose (e.g. computer, network connection, browser).
The right of use is limited to the number of usage units booked by the Customer in accordance with the Purchase Order or the eventual Additional Terms to which it refers. Any sub-licensing or further licensing of the Software is prohibited. The Customer has no right to a copy and thus also no right to a backup copy of the Software. All rights in the Software or the Service over and above the right of use defined in these General Terms remain fully with Tractebel.
4.4. Tractebel Services
We shall provide you the Consulting Services according to your Purchase Order or the eventual Additional Terms to which it refers.
The Consulting Services shall be activated once the Authorized User confirms the launch of the calculation in the Software. Calculations may take several hours, depending on the Services Package and the size of the input dataset. We will be notified when the calculations are done and will then validate the results of the calculation. Once the Report is validated, the Authorized User will be notified by email that the Report is available. We will then take contact with the Authorized Users within fifteen (15) Business Days to start the analysis included into the Consulting Services of the chosen Service Package. The Authorized User shall send us the Report extracted from the Software. These Report are considered as essential to start the analysis. The Report needed will be discussed during the contact between the Authorized Users and Tractebel.
For the sake of clarity, the following services are excluded but could be agreed separately:
• Personal or group onboarding or training session for Authorized Users to use the Software other than access to material available online;
• Additional Consulting Services not included in the corresponding Service Package;
• Onsite assistance ;
Additional Consulting Services not included in the Purchase Order or the eventual Additional Terms to which it refers or listed above are also available on request (a.e. execution of any kind of employees mobility survey; production of isochrones maps and concentration maps, density map).
4.5. Technical Requirements and Required Information for the Use of Tractebel Services and Software
The contractual use of the services provided by Tractebel depends on the hardware and software (Excel) used by the Customer, including workplace computer, router, data communication means etc., meeting the minimum technical requirements for the use of the Software version as offered from time to time and on the authorized users being familiar with the operation of the SaaS. The Customer shall establish, at its own cost, a data connection via the internet between the workstations to be used and the data transition point (using Excel) defined by Tractebel. Tractebel is entitled to redefine the data transition point at any time if necessary for the unobstructed use of the services by the Customer. In such case, the Customer shall establish a connection to the newly defined transition point. Tractebel assumes no responsibility for any malfunction in the transmission of or access to data outside of Tractebel’s control (e.g. due to maintenance times or in case of malfunctions attributable to the provider of storage capacity, the internet provider, the network provider, etc.).
You will communicate to Tractebel any information requested by the Service Provided to facilitate consultation, if said information and documents are required for the performance of the Services. You shall also provide Tractebel, if necessary, with access to equipment, Software and services for the purposes of maintenance and fault prevention.
4.6. Tractebel’s Intellectual Property, Trade Secrets and Other Rights
We remain the sole owner of all right, title and interest in the Services and Software. Except as stated in the Terms, we do not grant you any rights to patents, copyrights, trade secrets, trademarks or any other rights in respect to the items in the Services or Software. We reserve all rights not granted under the Terms. These General Terms cannot be interpreted as assigning to the Customer in an express or tacit manner, any property right over these elements. As the General Terms do not transfer to the Customer any physical or Intellectual Property Right over the Services and Software, the Customer undertakes not to alter, hide, dissimulate or remove any information or reference regarding the copyright or property right indicating Tractebel’s ownership of the Services and Software.
Tractebel shall remain the owner or holder of rights over any document (particularly reports, programs, manuals, magnetic tapes or disks, lists and other documentation, or any medium regardless of its form) and of Intellectual Property Rights and particularly patents, trademarks, copyright and other relative rights, including any expertise, know-how and knowledge that it possesses at the time when the Purchase Order is made or for which it has a user license (together the “Prior Knowledge”). Accordingly, it shall remain free to use them, within the limit of the rights that it held prior to the issuing of the Purchase Order or the granting of a licence, except to preserve the rights of the other Party under the conditions specified hereinafter.
The Parties undertake not to challenge or impair the other Party’s rights, directly or indirectly, and to only use the Prior Knowledge for the needs of the licence we grant you. At the end of the licence term, the Customer shall return the Prior Knowledge and any media made available by Tractebel, if any, at first request, and shall waive any right to retain any media belonging to Tractebel and made available to it in the context of the Purchase Order or granted licence. Without prejudice to its obligations under the stipulations of this article, Tractebel may use the improvements made to its Prior Knowledge for any other service for the benefit of a Third Party. This right shall not cover any improvement made to said Prior Knowledge that reflects a problem specific to the Customer, such an improvement being part of the Results. Unless otherwise stipulated in these General Terms, Tractebel and its staff shall remain free to use and employ their knowledge and skills developed during the performance of the Agreement, to the extent that they do so without harming the Customer.
All the Results are the sole property of Tractebel. Tractebel grants a non-exclusive, for the duration of the protection of the Intellectual Property Right and royalty free license for the whole world on the Results to the Customer, for any commercial or non-commercial use whatsoever, provided that the Customer cannot use such license and/or the Results to compete with Tractebel on the delivery of consulting services or trainings to Third Parties. The Customer may transfer this license to any of its Affiliated Entities for the needs of the Agreement.
The provisions of this Section shall survive any termination of this Agreement.
4.7. Storage
We recommend that you back up your Content elsewhere regularly if the Services provide storage and this functionality is enabled by the applicable Services. We may create reasonable technical limits on file size, storage space, processing capacity and other technical limits. We may suspend the Services until you are within the storage space limit associated with your account.
At the end of your license term, we will use commercially reasonable efforts to allow you to transition your Content out of the Services. The transition must be completed within 30 days from the date of the termination or expiration of your license term. At the end of this 30-day transition period, we reserve the right to delete your Content. You should download any Content that you have stored in the Services before your license ends.
4.8. User-Generated Content
We may host user-generated content from our users. If you access our Services, you may come across user-generated content that you find offensive or upsetting. Your sole remedy is to stop viewing the content. If available, you may also click the “Report” button to report offensive user-generated content to us.
4.9. Sample Files
“Sample Files” means audio, visual, video or other content files provided by Tractebel for use in tutorials, demonstrations and for other trial purposes, which may be identified as sample files. Sample Files cannot be used for any other purpose than for which they were provided. You cannot distribute Sample Files in any way that allows a third party to use, download, extract or access the Sample Files as a stand-alone file and you cannot claim any rights in the Sample Files.
4.10. Content Files
“Content Files” means Tractebel assets provided as part of the Services and Software. Unless documentation or specific licenses (including but not limited to Additional Terms) state otherwise, we grant you a personal, non-exclusive, non-sublicensable and non-transferable licence to use the Content Files to create your end use (i.e., the derivative application or product authored by you) into which the Content Files or derivations thereof, are embedded for your use (“End Use”). You may modify the Content Files prior to embedding them in the End Use. You may reproduce and distribute Content Files only in connection with your End Use, however, under no circumstances can you distribute the Content Files on a stand-alone basis, outside of the End Use.
4.11. Free Memberships, Offers and Trials
Tractebel may offer free memberships, offers and trial memberships in its sole discretion. If access to the Services or Software is provided to you for free or for trial purposes, such access is governed by these Terms. At any time prior to or during the free or trial period, Tractebel may, in its sole discretion, terminate the free or trial access without prior notice and without any liability to you, to the extent permitted under applicable law, for any reason, including to prevent abuse of the free or trial access.
After the free or trial access period expires, you may only continue using the Services or Software by enrolling in a paid subscription, if available or as otherwise permitted by Tractebel. During the free or trial period, no express or implied warranties shall apply to the Services and Software, all Services and Software are provided “as-is” with all defects and no technical or other support is included.
4.12. New Product and New Service
New Product and New Services. Tractebel may also designate a Service or Software as a New Product or New Service or other similar designation. A new Service refers to any product, module or component that may be used in connection to the Software or as independent product and which (i) is not part of an Upgrade or another modification to the Software and (ii) is not generally provided to Tractebel’s Customers, including the Customer, as part of the usual Maintenance and Support services. New Product or Services may include products and/or services that complement the Software and that are provided by one of Tractebel’s subcontractors or suppliers and retailed by Tractebel, or products and/or services developed directly by Tractebel.
If access to the Services or Software is provided to you as a “New Product” or a “New Service”, such access is governed by these Terms. You may, at its sole discretion, decide to purchase New Products. Subject to additional fees, you are not entitled to Maintenance and Support Services which are specifically excluded. Tractebel may remove some features or functions from the Software and offer said features or functions in another New Product but shall in such case provide the Customer with the corresponding New Product at no additional cost for the remaining part of the license period. Tractebel will consider the customer’s legitimate interests.
4.13. Trial Version.
Tractebel may also designate the Services or Software as “trial, “evaluation”, or other similar designation (“Trial Version”). You may access and use the Trial Version Version only for internal evaluation purposes and for the period stated when we provide the NFR Version and. You must not use any materials you produce with the Trial Version for any commercial purposes. The Trial Version may be subject to functional restrictions; any use shall be at the customer’s own risk. When providing a Trial Version for testing purposes, Tractebel expressly disclaims any liability in the sense of a warranty for specific properties.
4.14. Prerelease or Beta Version
We may designate the Services or Software or a feature of the Services or Software, as a prerelease or beta version (“Beta Version”). A Beta Version does not represent the final product and may contain bugs that may cause system or other failure and data loss. We may choose not to release a commercial version of the Beta Version. You must promptly cease using the Beta Version and destroy all copies of the Beta Version if we request you to do so. In exchange for your use of a Beta Version, you agree that Tractebel may collect data regarding your use of the Beta Version to improve our products and personalize your experience, regardless of whether or not you have opted-out of data collection for non-Beta Versions. If you do not wish to have your usage tracked, you must discontinue your use of the Beta Version by uninstalling such Beta Version or utilising a non-Beta Version of the Services or Software. Any separate agreement we enter into with you governing the Beta Version will supersede these provisions.
4.15. Third-Party Services and Software
Access to third-party services and software is provided for convenience only and Tractebel has no responsibility for such third-party services and software. Tractebel Services and Software may refer to third-party services and software and you are sole responsible for complying with all third-party terms that apply.
Third-party Services and Software listed below:
• https://digital.tractebel-engie.com/third-party-services-and-software/
The Services and Software of these third parties are cited to indicate the purpose (s) of Tractebel Services and Software. We do not own any rights over the third-party services and software.
4.16. Involvement of Sub-Contractors
We are entitled to involve sub-contractors for the purpose of meeting our contractual obligations. The hosting of the Software and its data is managed by a subcontractor on our behalf. We promise to stand surety for its cloud services’ subcontractor (promesse de porte-fort) for the delivery to the Customer of the Services in compliance with the terms of this Agreement.
The hosting service of the Software may be suspended for any maintenance work required for the proper operation of the Software, for a reasonable period. Tractebel undertakes to give notice of the interruption of services to the Customer at the earliest opportunity so that the latter can prepare for the suspension of the Services and take appropriate measures sufficiently in advance to avoid any disruption to its activity. For the avoidance of doubt, interruption of the Services shall not be considered as a breach of this Agreement and Tractebel shall not be considered liable for (a) a Force Majeure event; (b) a fault or failure of the internet or any public telecommunications network; (c) a fault or failure of Tractebel’s hosting provider or other Tractebel’s subcontractors due to a Force Majeure event, and (d) a fault of failure of the Customer’s computer systems or networks.
4.17. Trade Sanctions and Export Control Compliance
The Services and Software and your use of them, are subject to laws, restrictions and regulations of Belgium and other jurisdictions that (A) govern the import, export and use of the Services and Software; and (B) may prohibit us from providing the Services and Software to you without notice. By using the Services and Software, you agree to comply with all such laws, restrictions and regulations and you warrant that you are not prohibited from receiving the Services and Software by the laws of any jurisdiction.
4.18. Disclaimers of Warranties and Notification of Defects
Unless stated in the Additional Terms or specific disclaimers, the Services and Software are provided “AS-IS.” To the maximum extent permitted by law, we disclaim all warranties, express or implied, including the implied warranties of non-infringement, merchantability and fitness for a particular purpose. We make no commitments about the content within the Services. Legal warranty in respect of hidden defects in accordance with 1641 of the Belgian Civil Code is excluded.
We specifically disclaim all liability for any actions resulting from your use of any Services or Software. You may use and access the Services or Software at your own discretion and risk, and you are solely responsible for any damage to your computer system or loss of data that results from the use of and access to any Service or Software. If you post your Content on our servers to publicly Share through the Services, we are not responsible for: (A) any loss, corruption or damage to your Content; (B) the deletion of Content by anyone other than Tractebel; or (C) the inclusion of your Content by third parties on other websites or in other media.
We further disclaim any warranty that (A) the Services or Software will meet your requirements or will be constantly available, uninterrupted, timely, secure or error-free; (B) the results obtained from the use of the Services or Software will be effective, accurate or reliable; (C) the quality of the Services or Software will meet your expectations; or (D) any errors or defects in the Services or Software will be corrected.
Tractebel shall, at its sole discretion, rectify or re-perform duly notified defects in the performance within reasonable time. You shall inform Tractebel of defects in the contractual performance in written form (including email) without undue delay and state in a reproducible manner how and when the error or defect occurs. The Customer shall actively support Tractebel in troubleshooting by providing suitable documentation (hardcopy, etc.) and any other documents, data, etc. necessary for the analysis and elimination of the defect by Tractebel. If during the inspection of a complaint the defect turns out not to have occurred within Tractebel’s area of responsibility, Tractebel may charge the Customer for the inspection at the respective applicable prices. This does not apply if the Customer, exercising due care, could not have determined that the malfunction did not occur in Tractebel area of responsibility. If, due to reasons attributable to Tractebel, subsequent performance fails within a reasonable grace period notified by the Customer, the Customer may reduce the agreed remuneration on a pro rata basis for the time in which the Software was not available to the Customer to the agreed extent.
The provisions of this Section shall survive any termination of this Agreement.
5. YOUR CONTENT
5.1 Content
“Content” means any text, information or material, such as audio files, video files, electronic documents or images, that you upload and import into, or create with the Services or Software in connection with or through your use of the Services. You must not upload any Content that is prohibited by any applicable law.
You retain all rights and ownership of your Content. We do not claim any ownership rights to your Content. We reserve the right to remove Content or restrict access to Content, Services and Software if any of your Content is found to be in violation of these Terms.
5.2 Licenses to Your Content in Order to Operate the Services and Software
Solely for the purposes of operating or improving the Services and Software, when you upload Content to the Services or Software, you grant us a nonexclusive, worldwide, royalty-free, sublicensable and transferrable licence to use, copy, display and modify the Customer Data.
Customer Data may be used by Tractabel as aggregate information (i.e. anonymous information that is grouped together to generate statistics). The Customer warrants that he has obtained all the rights necessary to grant such a license to Tractebel.
In the event that personal data are processed, the provisions of sections 5, 6 and 10.3 additionally apply.
To the extent the Customer has to enter or transmit specific parameters to Tractebel in order to use the Software (e.g. to initiate actions if these parameters are not met or exceeded), the Customer shall be responsible for ensuring that such parameters are (a) accurate and (b) suitable for the intended purpose. The Customer is exclusively entitled to the data input, generated thereby and allocatable to the Customer and the Authorized Users in the context of the use of the Software (“Customer Data”).
5.3. Compliance with Security
Tractebel undertakes to implement all the reasonable means to preserve the security, the integrity, the availability and the confidentiality of your Content, including any Personal Data.
Tractebel undertakes to refrain from:
• altering all or part of your Content;
• deleting all or part of your Content in any manner, other than in the event of the termination of the Agreement and pursuant to the Agreement;
• using your Content other than for the provision of the Services or to comply with its obligations under the terms of the Agreement; and
• divulging, selling, transferring or loaning, your Content or from providing them in any other manner.
You have and will, subject to Tractebel complying with its obligations, retain sole responsibility for:
• Your content and use of it (including anonymization);
• All information, instructions, and materials provided by or on behalf of Customer or any Authorised User in connection with the Services.
• Customer’s information technology infrastructure, including but not limited to computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (”Customer Systems”);
• The security and use of the Customer’s and its Authorised Users’ Access Credentials; and
• All access to and use of the Software directly or indirectly by or through the Customer Systems or its Authorised Users’ Access Credentials, with or without Customer’s knowledge or consent, including all conclusions, decisions, and actions based on the Results and, such access or use.
You shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to:
• Securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and
• Control the content and use of Customer Data, including the uploading or other provision of Customer Data.
In any case, you shall scan the data and information for viruses prior to upload and use state-of-the art antivirus programs.
5.3 Sharing Your Content
Sharing. Some Services and Software may provide features that allow you to Share your Content with other users or to make it public. “Share” means to email, post, transmit, stream, upload or otherwise make available (whether to us or other users) through your use of the Services and Software. Other users may use, copy, modify or re-share your Content in many ways. Please carefully consider what you choose to Share or make public as you are responsible for the Content that you Share.
Level of Access. We do not monitor or control what others do with your Content. You are responsible for determining the limitations that are placed on your Content and for applying the appropriate level of access to your Content. If you do not choose the access level to apply to your Content, the system may default to its most permissive setting. It is your responsibility to let other users know how your Content may be Shared and to adjust the setting related to accessing or sharing your Content.
Comments. Any comments that you submit through the Services and Software are not anonymous and may be viewed by other users. Your comments may be deleted by you, by other users or by us.
5.4 Termination of Licence
You may revoke this licence to your Content and terminate our rights at any time by removing your Content from the Service. Some copies of your Content may be retained as part of our routine backups, however.
5.5 Feedback
You have no obligation to provide us with ideas, suggestions, proposals or bug or crash reports (“Feedback”). If you submit Feedback to us however, then you grant us a non-exclusive, irrevocable, perpetual, worldwide, royalty-free, sublicensable and transferable license to make, use, sell, have made, offer to sell, import, export, reproduce, publicly display, distribute, modify and publicly perform the Feedback.
5.6. References
In the context of its marketing activities and in the preparation of its offers for projects of other Customers, Tractebel is entitled to refer to the projects realized by it for the Customer and to document same, subject to the justified confidentiality interests and consent of the Customer. In particular, Tractebel is entitled, subject to the consent of Customer, to publish the orders placed with same in the context of marketing activities, in particular refer to the business relationship on Tractebel’s website with the name and corporate logo of the Customer.
5.5. Your Warranty and Indemnification Obligations.
5.5.1. Warranty
When using the Software as well as the contractual services, you shall observe applicable law, in particular all applicable laws and regulations. You are prohibited from uploading data or content that infringes legal provisions, third-party property rights or copyrights, or other third-party rights. You should only provide Content that you are allowed to process.
By uploading your Content to the Services or Software, you agree that you have: (A) all necessary licenses and permissions to use and Share your Content; and (B) the rights necessary to grant the license in the Terms.
The provisions of this Section shall survive any termination of this Agreement.
5.5.2 Indemnification
You will indemnify us and our subsidiaries, affiliates, officers, agents, employees, and partners from any claim, demand, loss or damage, including reasonable solicitors’ fees, arising out of or related to your Content, your use of the Services or Software (as applicable) or your violation of the Terms. We have the right to control the defense of any claim, action or matter subject to indemnification by you with counsel of our own choosing. You will fully cooperate with us in the defense of any such claim, action or matter.
You are responsible for the content you process and shall indemnify Tractebel against any damages, losses, costs, liabilities, fines or penalties (including all reasonable lawyer’s fees), incurred by Tractebel subsequent to any allegation, proceedings, action and/or claim by a Third Party on the grounds that an intellectual property right or a Business Secret, regardless of its nature, assigned by virtue of this Agreement and/or regarding the Service and/or the Results, infringes any Third Party’s rights.
The provisions of this Section shall survive any termination of this Agreement.
6. YOUR TRACTEBEL ACCOUNT
6.1 Tractebel Account Information
In accordance with the Agreement, you will provide the Access Credential only to Authorized User(s). Your account administrator must be an Authorized User and may use your account information to manage your use and access to the Services and Software.
You are obliged to keep the log-in data, i.e. the Access Credentials provided by Tractebel confidential from unauthorized persons and to keep it secure from access by unauthorized persons, thus making it impossible for unauthorized persons to abuse the data in order to gain access. The personal password must be changed in regular intervals.
As soon as you have any indication that a third party may have gained unauthorized access to, or may have misused, rights and access rights of Auhorized User, you are obliged to inform us thereof without delay via support@Tractebel.com.
You are responsible for all activity that occurs via your account even if that activity is not by you or is without your knowledge or consent. You have to notify us immediately if you become aware of any unauthorized use of your account.
6.2 Free Account Inactivity
You are responsible for keeping your account active, which means you must sign in periodically to avoid any disruption or loss of access to the Services and Software or termination of your account. If you don’t sign into your account periodically, we reserve the right to assume your account is inactive and you agree that we may close it for you. You understand that you will lose access to any Content stored in your account upon closure. Prior to closing your account for inactivity, we will attempt to provide notice to you. For the avoidance of doubt, this section 6.2 (Account Inactivity) does not apply to paid accounts in good standing.
7. USER CONDUCT
7.1 Responsible Use
The Tractebel communities may consist of users who expect a certain degree of courtesy and professionalism. You must use the Services and Software responsibly.
7.2 Misuse
You must not misuse the Services or Software. For example, you must not:
• Use the Services or Software without, or in violation of, a written licence or agreement with Tractebel;
• Copy, modify, host, stream, sublicence or resell the Services or Software;
• Enable or allow others to use the Services or Software using your account information;
• Offer, use or permit the use of the Services or Software in a computer services business, third-party outsourcing service, on a membership or subscription basis, on a service bureau basis, on a time-sharing basis, as a part of a hosted service or on behalf of any third party;
• Use the Software to construct any kind of database or dataset;
• Access or attempt to access the Services or Software by any means other than the interface we provide or authorise;
• Circumvent any access or use restrictions put into place to prevent certain uses of the Services or Software;
• Share Content or otherwise engage in behaviour that violates anyone’s Intellectual Property or Trade Secrets Rights.
• Share any Content that is unlawful, harmful, threatening, obscene, violent, abusive, tortious, defamatory, libelous, vulgar, lewd, profane, invasive of another’s privacy, hateful or otherwise objectionable;
• Attempt to disable, impair or destroy the Services or Software;
• Upload, transmit, store or make available any Content or code that contains any viruses, malicious code, malware or any components designed to harm or limit the functionality of the Services or Software;
• Use any data mining or similar data gathering and extraction methods in connection with the Services or Software, including data scraping for machine learning or other purposes;
• Artificially manipulate or disrupt the Services or Software (such as manipulating appreciations on Behance or driving users to third-party sites);
• Create Tractebel accounts for the purpose of violating these terms or for circumventing account termination or other types of actions taken by Tractebel;
• attempt, including through unauthorized third parties of unauthorized to retrieve information or data or interfere with programs run by Tractebel or intrude into data networks of Tractebel without authorization;
• Manipulate or otherwise display the Services or Software by using framing or similar navigational technology; or
• Violate applicable law.
You will not, directly or indirectly make the Software available for use free of charge or against payment to third parties or to persons outside the authorized group of users.
You shall, directly or indirectly, refrain from: compromising the security of the Software; trying to capture or scan the Software, from hindering the normal operation of the Software, and in particular, from attempting to bypass the security measures, verification of the authentication or any other protective measures, or alter, hack or disrupt the Services or the Software or any website, information system, server, router or any device connected to the internet and ; allowing any robot or automated process from acting on or interacting with the Software, except if expressly agreed with the Tractebel.
You will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services; modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Tractebel or authorized within the Services and Software); or remove any proprietary notices or labels.
7.3 Release
If you become aware of any actual or threatened prohibited activity, you shall cause all Authorized Users to, immediately, take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and notify Tractabel of any such actual or threatened activity.
You shall release Tractebel and involved third parties of all third-party claims that may arise from (a) unlawful use of the Software by the Customer and/or, with the consent of the Customer, by third parties, (b) disputes arising from data protection laws, copyright laws or other legal disputes associated with the use of the Software by the Customer.
The Customer hereby agrees to indemnify and hold harmless Tractebel against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services.
In the assertion of relevant claims, the Customer is obligated to notify Tractebel thereof in writing without delay. In this case, Tractebel is entitled to block the Service for the Customer without delay and without providing a grace period. Any compensation claim asserted by the Customer based on the blocking of the Service is excluded.
8. FEES AND PAYMENT
8.1 Fee structure
You have to pay us the license fees according to your Purchase Order or the eventual Additional Terms to which it refers.
You may at any time notify Tractebel of a request for the performance of optional or additional Services. Such services shall be subject to a specific Purchase Order issued by the Customer and accepted by TRACTEBEL, and TRACTEBEL undertakes to perform such Services under the terms and the specific Purchase Order.
8.2 Recurring Payments & Upgrades
Unless otherwise provided in the Purchase Order, the price to be paid for the use of our Services and Software consist of recurring payments (e.g. monthly/annual user fee). Details are specified in your Purchase Order or the eventual Additional Terms to which it refers.
Tractebel shall provide the Customer with Upgrades at no additional cost. Tractebel shall also provide the Customer with developments in the functions of the Software at no extra cost as soon as they become available. Upgrades of versions of the Software, and the developments of functions of the Software shall not entail any additional fees for the use of the Software, nor any fees for maintenance or other additional fees.
8.3 Taxes and Third-Party Fees
You must pay any applicable taxes and third-party fees (including, for example, telephone toll charges, mobile carrier fees, ISP charges, data plan charges, credit card fees, foreign exchange fees and foreign transaction fees). We are not responsible for these fees. Contact your financial institution with questions about fees. We may take steps to collect the fees you owe us. You are responsible for all related collection costs and expenses.
Regarding the applicable taxes, all prices exclude the respectively applicable statutory sales tax (value added tax). The Customer shall be responsible and shall directly pay or reimburse to Tractebel any tax, duty and any other imposition due under any applicable laws. All amounts due to Tractebel shall be made in full without any deduction or withholding in respect of any tax, duty, withholding tax, charge, value-added tax or similar taxes or charges unless the deduction or withholding is required by any legal requirements, in which case the Customer, unless the deduction or withholding has become mandatory exclusively as a result of Tractebel’s negligence, shall increase the amounts payable to Tractebel in such manner that the net amounts received by Tractebel shall be equal to the amounts originally payable to Tractebel, had no such deductions or withholdings been made. In any event, the Customer shall provide Tractebel with evidence that any applicable deduction or withholding made has actually been transferred to the relevant tax authority. The evidence to be so provided to Tractebel by the Customer shall meet all conditions required under standard accounting rules applicable to Tractebel and all requirements set by competent tax authorities so that Tractebel is always in a position to demonstrate that the deduction or withholding has been made in accordance with all applicable laws.
8.4. Invoicing and Payment Terms
Unless otherwise provided in the Purchase Order or the eventual Additional Terms to which it refers, the price shall be billed within minimum one day after the Report is accessible in the Software to the Authorized User. The invoices are promptly payable and due sixty (60) calendar days after the date of issuance. Any invoice that has not been disputed with reasonable substantiation within fourteen (14) calendar days after its issuance shall be deemed to have been approved without reservation by the Customer.
8.5 Measures in the event of payment default
If the Customer defaults on the payment of fees, after relevant warning by email or letter, Tractebel is entitled to block access to the Service or extraordinarily terminate the contractual relationship. The Customer shall have no access to the data saved by it in the Service during the block. In the event of a termination, Section 10.2 shall apply.
In the event of any late payment with regard to the contractual deadline, the Customer shall owe:
• interest for late payment on the amounts payable pursuant to the following provisions:
• flat rate compensation for recovery fees set by decree pursuant to Belgian law 02/08/2002 concerning the fight against late payment in commercial transactions, modified by the law of 22 November 2013. Interest for late payment shall be calculated from the day after the due date for the payment and until the day on which Tractebel is credited.
9. LIABILITIES AND LIMITATIONS
9.1. Tractebel
The Customer shall inform Tractebel by email of any defect/non-compliance affecting the Software or Services at the earliest opportunity. If SaaS are provided free of charge, Tractebel does not accept any liability for damage resulting from the use thereof.
Tractebel undertakes to carry out a diagnosis of any Default so reported and to implement a Correction or offer a Workaround solution according to the Service Levels procedures defined in the Terms and Purchase Order.
Tractebel shall not accept any liability whatsoever to the extent legally permissible, in for
a) Damages,
• arising from the Customer’s violation of the contractual obligations ;
• caused by errors or omissions in any information, instructions or scripts uploaded to the Software by the Customer
• caused by TRACTEBEL’s involved third parties or support persons;
• due to viruses;
• as a result of malicious code;
• subsequent to a hacker attack;
• subsequent to a software error;
• subsequent to an error in the operating system, disruptions to operations as a result of fault remedy, maintenance, infrastructure modifications, introduction of new technologies.
• subsequent to a faulty service pack from another manufacturer;
• as a result of data losses (Tractebel shall not be liable for the loss of Customer data if the damage is based on the Customer’s omission to create back-ups in accordance with Section 6.).
b) indirect or subsequent damages such as profits foregone, savings not realized or third-party claims.
Tractebel shall be liable for damages – regardless of the legal cause – solely: a) in the event of intent; b) in the event of gross negligence; c) in the event of injury to life, body and health; d) in the event that Tractebel has fraudulently concealed a defect; e) insofar as Tractebel has given an explicit guarantee; or f) if Tractebel violates an essential contractual duty.
Tractebel’s liability for all damages arising, within the same contractual year, out of or in connection with its services and performance, caused by Tractebel, its officers, subcontractors, employees, vicarious agents or associates, as well as any obligation to indemnify the other Party, shall, regardless of the legal cause, except under the circumstances a) to e) set out in the paragraph above, be limited to the remuneration due for the respective contractual year. In the event of violation of an essential contractual duty by negligence of Tractebel (circumstance f) set out in the paragraph above), Tractebel‘s liability for damages shall be limited to typical contractual losses that could have been foreseen. This also applies to loss of profits and any other financial loss. An essential contractual duty is a duty the fulfillment of which is required for the due execution of a contract and the observance of which a Party relies on, and may rely on, regularly, as well as a duty the breach of which will put the achievement of the contractual purpose at risk.
Insofar as Tractebel’s liability is excluded or limited, this shall also apply to the personal liability of Tractebel’s officers, subcontractors, employees, representatives, vicarious agents and associates as well as to the liability of affiliates, suppliers and licensors.
The limitation period for claims for damages against Tractebel is one year insofar as permitted by law, unless the damage was caused intentionally. Claims for damages pursuant to the Product Liability Act are subject to the statutory limitation periods.
9.2. Customer
The Customer shall be solely responsible for the compliant use of the Software and Services in accordance with TRACTEBEL’s applicable procedures and the accuracy, quality and legality of the Customer Data to be processed and of the means by which it was acquired. The Customer assumes sole responsibility for the use, conclusions or interpretation made from the Report obtained from the Software.
In case of non-compliance with the Customer’s obligations, as default of payment or any other material reason other than TRACTEBEL ’s own negligence preventing the TRACTEBEL from performing its Services, TRACTEBEL shall be entitled to suspend its obligations under the Agreement by giving fifteen (15) business days prior written notice. If the Customer does not remedy the non-compliance within the abovementioned deadline, article 10.2 shall apply. Such a notice shall not be applicable in case of a security breach.
In each individual case the Customer allows the use of the Software to third parties, the Customer shall be obliged to pay damages in the amount of the remuneration that would have been due for a single user if a contract had been concluded, unless the third party use is not attributable to the Customer. The Customer shall be free to prove that no damage was incurred or that the incurred damage was substantially lower. All further rights of TRACTEBEL shall remain unaffected by the foregoing provision.
9.3. Tractebel Insurance
Tractebel Services and Softwares are covered by insurance to cover the pecuniary consequences of any Third Party’s liability incumbent on it where applicable due to personal injury, tangible or intangible damage, regardless of its origin, caused to the Customer and to any Third Party.
10. TERMINATION
10.1 Term
Unless otherwise provided in the Purchase Order or the eventual Additional Terms to which it refers, each License is granted for a particular term (“Basic Period”) and shall thereafter extend automatically by the same period (“Extension Period”) if the contractual relationship is not ordinarily or extraordinarily terminated pursuant to Section 10.2 below by one of the contractual parties. The provisions of Section 10.2 shall apply as aforesaid with respect to a reduction in usage units during the term.
10.2 Termination
Unless otherwise provided in the Purchase Order or the eventual Additional Terms to which it refers, either Party may terminate for convenience the contract by giving to the other Party a thirty (30) days written notice of termination.
In the event that one Party is in breach of any of its obligations under these General Terms, the other Party may put the defaulting Party on notice to remedy said breach within thirty (30) days. If on the expiry of these thirty (30) days, the breach has not been remedied, it is understood that termination shall take place automatically, without any formality and without the prior intervention of a court, as of the effective date set in the notice of termination and without prejudice to the non-defaulting Party’s rights of recourse and appeals.
If the defaulting party is the Customer, the Customer is not entitled to a reimbursement of the remuneration paid for the use and Tractebel is entitled to immediately claim an amount equaling 75% (seventy-five percent) of the remuneration for the remaining term, until the next possible regular termination date, of services offered by Tractebel against remuneration and affected by the termination, unless the Customer proves that Tractebel or Tractebel Affiliate has not suffered any damage or that the actual damage is significantly lower than this amount. Tractebel or its Affiliated Parties may prove that the actual damage exceeds this amount.
In the event that (a) one of the Parties becomes or is declared insolvent or unable to pay its debts as they become due or makes an assignment for the benefit of its creditors, or notifies the other Party that it anticipates either condition, (b) a receiver, administrator, liquidator or trustee is appointed for all or a substantial part of either Party’s assets, (c) either Party or its shareholders or creditors take any other action looking to the relevant Party’s dissolution or liquidation, (d) either Party makes an assignment for the benefit of all or substantially all of its creditors, or that (e) either Party enters into an agreement for the composition, extension, or readjustment of substantially all of its obligations, then the other (solvent) Party may, in its sole discretion, terminate this Agreement immediately and without prior intervention of a court.
In the event of termination, and except if termination is due to Tractebel’s or the Customer’s material breach of the Agreement, the Customer shall pay TRACTEBEL upon receipt of the invoice the full Remuneration in case it was due for all Services which have been completed in full conformity with the Agreement.
If termination is due to Tractebel’s (and except in the case of the material breach of the Agreement) convenience, Parties agree that Tractebel will not have to reimburse the Remuneration to the Customer for such part of the Services which have been performed in full conformity with the Agreement.
All rights granted under the Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services, not having any longer access to the Services.
Notwithstanding the above, the termination or expiry of the Agreement in no way releases the Parties from obligations that may have arisen prior to said termination and does not bring an end to the stipulations of the Agreement which, by their nature, must survive (see section “Survival”).
Any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
10.3 Customer’s data after termination
The data can be exported to MS Excel files. A PDF report is generated and exported. An example of PDF report can be downloaded on the FAQ page.
At the end of the 60 days from the end of the contractual relationship or upon request by the Customer already prior to this period, Tractebel shall delete the data of the Customer saved on its servers finally and in full. This action shall be subject to mandatory legal retention obligations.
Tractebel is not obligated to surrender its data to the Customer in deviation to these provisions (in particular relating to time, format or migration). Any deviating surrender of the Customer’s data shall require the prior written consent of Tractebel as well as separate remuneration by the Customer
10.4. Survival
Upon the expiration or termination of the Terms, some or all of the Services and Software may cease to operate without prior notice. Your indemnification obligations, our warranty disclaimers, our intellectual property or Trade Secrets rights and limitations of liabilities and dispute resolution provisions stated in the Terms will survive.
11. UPDATES TO TRACTEBEL SERVICES AND SOFTWARE, AVAILABILITY, NOTIFICATION OF DISRUPTIONS AND ASSISTANCE
11.1. Updates to Tractebel Services and Software.
We may modify, update or discontinue the Services or Software (including any portions or features) at any time, without liability to you or anyone else. However, for changes to paid offerings, we will make reasonable efforts to notify you of the modification, update or discontinuation. If we discontinue the Services or Software in its entirety, we will use reasonable commercial efforts to allow you to transition your Content and we may provide you with a pro rata refund for any unused fees for that Service or Software that you prepaid.
11.2. Availability of Tractebel Services and Software.
Webpages describing the Services are accessible worldwide, but this does not mean all Services or service features are available in your country or that user-generated content available via the Services is legal or available in your country. Access to certain Services (or certain Service features, Sample Files or Content Files) in certain countries may be blocked by us or foreign governments. It is your responsibility to make sure your use of the Services is legal or available where you use them. Services are not available in all languages.
Tractebel shall take appropriate measures to make it possible for the Customer to use the Service as interruption-free as possible. Tractebel cannot guarantee availability of the Service at all times and absence of any other disruptions and interruptions to the functioning. The Customer represents, that it has reasonable knowledge of the internet and its characteristics and its limitations and acknowledges in particular that the transmission of data over the internet only has a relative technical reliability, as the data circulates on heterogeneous networks with a range of technical characteristics and capacities, which may on occasion be saturated at certain times of the day. The average availability of the performances provided is stipulated in the Purchase Order or the eventual Additional Terms to which it refers. The availability can be temporarily restricted in case of technical malfunctions or maintenance. If Tractabel Services and Software are unavailable due to scheduled maintenance, Tractebel will inform the Customer in due time in written form.
The Maintenance include activities necessary for keeping the Software up and running and supporting the users in their usage of the Software including,
• Maintenance of preventive nature including (i) update of external dependencies like operating systems, languages and Third Party components; (ii) continuous code refactoring and cleaning and; (iii) tests and testing procedure continuous improvement;
• Maintenance of corrective nature including processing of Default reporting from the Customer and Corrections;
• Documentation and quality assurance;
• Softwares, infrastructure and methods continuous improvement as necessary for maintain the Software;
• Performance analysis (follow up of computation time and memory usage).
• Preparation, put at disposal and continuous improvement of training and support material as per provided over the time with the Software; and,
• Technical assistance in (i) business knowledge corresponding to the use of the Software, and; (ii) IT service desk like support to the users for authentication and access to the Software.
11.3. Notification of Disruptions by Customer
The Customer shall notify Tractebel of any disruptions to the Service and Software without delay and provide information regarding the details of the circumstances of the issue. Tractebel shall remedy the disruption to the Service within an appropriate period of time. Tractebel is entitled to circumvent the disruption to the Service by means of a workaround solution if the cause of the disruption itself is only to be remedied with inappropriate expense and the usability of the Service is not significantly negatively affected.
11.4. Tractebel Support & Technical Assistance
Unless otherwise provided in the Agreement, for each Services Package, an online assistance is at disposal of the Authorized User, including:
• A video call with a detailed explanation of the Services Package and a demo of the Software;
• Support for quick start for the usage of the Software;
• Explanation of the SaaS contract, process of invoicing.
The support shall not include: general know-how transfer, trainings, configuration implementation or Customer-specific documentation or modification of the Software.
Support shall be carried out by email to support@Tractebel.com. Tractebel shall provide the support services during working hours from Monday to Friday between 8.30 am and 5.00 pm CET. Legal holidays are excluded. Inquiries received outside of these support times shall be regarded as received on the following working day.
Unless otherwise provided in the Agreement, the Tractebel shall also assist the Customer with regards to the Software with:
• Configuration and management of the Customer’s accounts to access the Software
• Access to the Software based on the granted Access Credentials
• Software features corresponding to the selected Service Package
The technical assistance is ensured by a Support Team mobilised on a best effort basis. The Customer may introduce requests like (i) questions; (ii) Default reporting and; (iii) suggestions, using communication channels made available by Tractebel in the Software.
From the date of receipt of a question or Default reporting in writing, Tractebel undertakes to contact the Customer within a maximum period of three (3) Business Days to acknowledge receipt of the Customer’s request and to send the Customer a written reply with a maximum period of ten (10) Business Days.
By question, it shall be understood any request for information or support relative to normal and expected use of the Software and, in particular, any question concerning the interpretation of the documentation given to the Customer by Tractebel and expressed by the Customer in writing and in sufficient details. Detailed support like business support for the user for building its own use cases or not strictly related to the usage of the Software will be considered Consulting Services and therefore not included in the Services.
Tractebel will classify Defaults using the following categories:
• Blocker: the production environment is not available and no Workaround can be found. This situation is considered critical and requires urgent Correction;
• Major: the production environment is impacted with major loss of function, Workaround can be found but reducing significantly the capabilities of the Software and reasonably requiring correction before the next Upgrade;
• Medium: the production environment is impacted with medium loss of function, Workaround can be found or impact is limited and the correction can wait for the next Upgrade;
• Minor: the production environment is impacted with minor loss of function, or other problem where easy Workaround is available and the correction can be planned at medium term;
• Cosmetic: minor problems impacting only the user interface and the correction can be planned when resource available.
The priority level will be defined by Tractebel based on the category of Default and notified to the requester. The following corresponding intervention time will be applied for the corrections:
• Blocker : correction will be deployed in production environment in maximum five (5) Business Days;
• Major : correction will be provided before the next Upgrade and not later than ten (10) Business Days;
• Medium : correction will be provided in the next Upgrade;
• Minor/Cosmetic : the correction will be prioritized by the Support Team on a best effort basis.
12. NO MODIFICATIONS OF TRACTEBEL SERVICES AND SOFTWARE NOR REVERSE ENGINEERING BY CUSTOMER
You may not (A) modify, port, adapt or translate any portion of the Services or Software; or (B) reverse engineer (including but not limited to monitoring or tracking the inputs and outputs flowing through a system or an application in order to recreate that system), decompile, disassemble or otherwise attempt to discover, within any Service or Software, the source code, data representations or underlying algorithms, processes, methods and any other portion of such Service or Software. If the laws of your jurisdiction give you the right to decompile the Services or Software to obtain information necessary to render the licensed portions of the Services or Software interoperable with other software, you must first request such information from us. We may, in our discretion, either provide such information to you or impose reasonable conditions, including a reasonable fee, on your decompilation of the Services or Software to ensure that our and our suppliers’ proprietary rights in the Services and Software are protected.
13. CONFIDENTIALITY
The contractual partners obligate themselves and their employees and involved support persons reciprocally to maintain the confidentiality of all documents and information not generally known that relate to the business sphere of the other contractual party and, which become accessible in the preparations for and execution of this contractual relationship.
More specifically, for the Contractual Term of the Agreement and for a period of five (5) years following its termination or expiry, the Parties undertake to:
• only use the Confidential Information to the extent authorized by the Agreement and to communicate it internally only to the members of staff -for the sake of clarity, employees, agents or Customer’s subcontractors-, which are bound by confidentiality obligations, with a need to know for the exclusive purposes of providing these Services or any other related Services which could be provided by Tractebel;
• refrain from divulging the Confidential Information to any Third Party, without prior written consent from the other Party, it being understood that the Parties may communicate the Confidential Information to their sub-contractors exclusively for the requirements of the performance of any Services or to a Third Party in the event of an audit or to their advisors, lawyers, and accountants for the purposes of reporting or seeking advice, provided that they make a similar confidentiality undertaking;
• take any measures that, in their entirety, are no less protective than the measures that they take to protect the confidentiality of their own Confidential Information of a comparable nature;
• take all necessary measures to warn the persons involved with the Software of the confidential nature of the Confidential Information and the prohibitions regarding the copying or divulging of said Confidential Information.
In any event, both Parties accept responsibility for compliance by the natural or legal persons to which they are bound:
This article does not prohibit the Parties from divulging any information required by applicable law, if:
• where appropriate, and without breaching any legal or regulatory requirement, one of the Parties sends notice to the other Party informing them of the obligation to divulge information and of its nature; and
• it cooperates with the other Party in seeking to object to, attenuate, or obtain confidential treatment of the claimed revelation, to the extent that this is reasonably feasible in each case.
Each Party commits to agree with the other prior to make any public announcement, communication, publication or technical, commercial or any other type of presentation or circular regarding these General Terms. Parties’ agreement shall not be unreasonably withheld or delayed.
The provisions of this Section shall survive any termination of this Agreement.
14. DISPUTE RESOLUTION
Tractebel and the Customer agree to form a steering committee to examine any dispute resulting from the performance of the Agreement before taking any legal action and shall undertake their best efforts to settle said dispute. Said steering committee shall be formed of two (2) members from each of the Parties.
Any dispute in relation to the Agreement shall be promptly and as a priority submitted to the steering committee that shall have the power to directly settle any dispute between the Tractebel and the Customer.
If the dispute cannot be resolved within twenty (20) Business Days of the submission of the recommendation of the steering committee or sooner if it has become apparent that the Parties will not be able to reach an amicable settlement within such period, then it shall be settled exclusively by the Dutch/French speaking courts of Brussels depending on the language preference of the Customer.
15. MISCELLANEOUS
15.1. Interpretation
The General Terms are drafted in English language. Other versions are translations for information purposes only. In the event of any inconsistency or in case of conflict, the English version will prevail as the leading version. The English version of the General Terms will be the version used when interpreting or construing the Terms.
These General Terms shall also apply to subsequent Software updates and upgrades provided to the Customer, unless otherwise agreed at the time of provision of the subsequent version or upgrade.
In the event of discrepancies, the contract documents apply in the following order of precedence: (1) the individual agreements (2) the email confirmation of the Purchase Order by Tractebel (3) the disclaimers to which the Purchase Order refers (4) the Additional Terms to which the Purchase Order refers unless stated otherwise specified (4) these General Terms (5) TRACTEBEL‘s Privacy Policy and (6) the Data Processing Addendum described in Section 3.3.
15.2. Notices
Any notification, warning and other notices sent under these General Terms must be sent by registered letter with acknowledgement of receipt or by express delivery carrier with copy by email. They shall be sent to the Parties’ contact persons referred below:
digital@tractebel.engie.com
Tractebel Engineering S.A.
Boulevard Simon Bolivar 34, Brussels, Belgium
Any change in address or representative for purposes hereof shall be notified by the Party concerned to the other Party as provided above.
Notifications delivered by registered letter with acknowledgement of receipt or express delivery carrier shall be effective as of their date of first presentation to the addressee.
Notifications delivered by email shall be deemed effective as of the date thereof, provided that they are confirmed on the same day by registered letter with acknowledgement of receipt or express delivery carrier.
15.3. Non-Assignment
The Parties shall not assign or transfer any part of the Agreement to a Third Party without the express prior written consent of the other, which shall not be unreasonably withheld. Notwithstanding the above, the Parties shall be entitled to assign or transfer rights and obligations resulting from the Agreement to any Affiliated Entity.
TRACTEBEL may subcontract only a portion of the Services. TRACTEBEL is bound to impose obligations on each of its subcontractors to ensure compliance with the clauses of the Terms. It will remain liable for the performance of the entire Agreement. In any event, TRACTEBEL shall, under its own liability, coordinate the activities of its subcontractors by scheduling and steering the performance of the services
15.4. Headings
Headings used in the Terms are provided for convenience only and will not be used to construe meaning or intent.
15.5. Severability
Should any of the provisions of these terms of use be or become invalid, void or unenforceable, the validity of the remaining provisions shall remain unaffected thereby. In such case, the invalid, void or unenforceable provision must be interpreted or substituted in such a way as to achieve the intended economic objective.
This shall not apply if adherence to the contract constitutes an unreasonable hardship for either Party.
15.6. No Waiver
Our failure to enforce or exercise any provision of the Terms is not a waiver of that provision.
15.7. Offsetting and assignment of claims
The offsetting of any claims of Tractebel against counterclaims of the Customer shall require our prior written consent. You are not entitled to assign any claims from the contractual relationship with Tractebel to third parties, in whole or in part.
Notwithstanding the above, the Parties shall be entitled to assign or transfer rights and obligations resulting from the Order Purchase to any Affiliated Entity.
15.8. Force Majeure
Neither party will be liable to the other for any delay or failure to perform any obligation (other than your payment obligations to Tractebel) under the Terms if the delay or failure is due to unforeseen events, which occur after the effectiveness of the Terms and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.