General Terms and Conditons of Sales of ENERGYSOFT services

S4E SOFTWARE is a software publisher specialising in energy information systems that offers the use of its software, products and services in Software As A Service mode (« SaaS »). Any subscription to the Software implies the Customer’s unreserved acceptance of these General Terms and Conditions of Sale (GTCS) which shall prevail over any contrary stipulations that may appear on the Customer’s order forms, general terms and conditions of purchase or any other document issued by the Customer, unless otherwise agreed in writing by S4E SOFTWARE. 

The Customer acknowledges that it has verified the suitability of the services offered to its needs and that it has received from S4E SOFTWARE all the information and advice necessary to subscribe to this contract.

This contract is supplemented by an appendix a « General Conditions for the Processing of Personal Data » and this in accordance with the GDPR (General Data Protection Regulations of 27 April 2016, applicable from 25 May 2018). Customers will be informed of any changes to the GTCs via the service portal.

Article 1 – Definitions

« Contract » refers to the contractual whole made up of the commercial offer signed by the Customer, the T&Cs as well as the Customer’s Registration on the ENERGYSOFT site with a view to using the Software and Services specified in the commercial offer.

« Customer » means any company or entity linked to S4E SOFTWARE by Contract.

« FTP Account » means a file deposit and retrieval service made available over the Internet, including the FTP, FTPS and SFTP protocols.

« Subscription Effective Date » means (i) the date of first receipt of the Data by S4E SOFTWARE in the case of subscription, (ii) the date of activation of the SIM card by the Customer in the case of subscription to the M2M Service referred to in Article 13 below.

« Data » means the information collected by the software.

« Initial Commitment Period » means the contractual subscription period defined in the commercial offer.

« Host » means any company providing a hosting service supporting the Customer’s Software and Data.

« Commercial offer » means any type of document constituting a commercial offer: quotation, commercial proposal, framework contract, complementary framework agreement proposal, amendment, etc.

« Mobile Operator » means any company providing a service for the transmission of Data over mobile networks from the Customer’s equipment to the S4E SOFTWARE servers.

« Identifiers » means the Customer’s own identifier (« login ») and the connection password (« password »).

« Software » means the ENERGYSOFT software published by S4E SOFTWARE, available in SaaS mode and made available to Customers via Internet technology. The Software enables the Customer to receive information in a space allocated to it on the operation and performance of its installations.

« Services » means the services offered by S4E SOFTWARE enabling the use of the Software, the right of access to the S4E SOFTWARE server, the hosting of Data, technical assistance and the maintenance of the Software and Services.

« Site » means an energy production or consumption installation whose Data are collected by the Software. 

« Browser » refers to the computer program used to connect to the ENERGYSOFT site, it is a recent version or recently updated web browser (less than 6 months) among the following : Firefox, Google Chrome, Microsoft Edge.

Article 2– Purpose of the contract

The purpose of the Agreement is to describe the terms and conditions of the provision, on a non-exclusive basis, of the Services and in particular the Software by S4E SOFTWARE to the Customer, for its own and personal needs.

By subscribing to the Services, the Customer agrees that S4E SOFTWARE may collect and host the Data.

Article 3– Duration

The Contract comes into force on the date of signature of the commercial offer or quotation and takes effect immediately. It is concluded for the duration stated in the commercial offer. Subscriptions are then automatically renewed by tacit agreement for further periods of one year each, unless terminated by either party under the conditions described in article 15 below.

Article 4 – Terms and conditions of use of the Software and the Customer’s personal space

4.1. As soon as the quotation is signed, S4E SOFTWARE communicates to the Customer the procedure allowing him/her to create his/her company account and the account of his/her main administrator on the ENERGYSOFT site and to use the Software by means of internet connection and a Browser.

4.2. When connecting to their personal space, Customers must use their login details. The Customer is solely responsible for preserving the confidentiality of his/her Login Information and undertakes to take all necessary measures to ensure such confidentiality. S4E SOFTWARE cannot be held responsible for the loss of the Customer’s Login Information.

4.3. The Customer has access to the Software(s) and Services specified on the accepted commercial offer, exclusively.

4.4. The Data collected by the Software and hosted by S4E SOFTWARE are and remain the property of the Customer.

4.5. The Data is stored on servers administered by S4E SOFTWARE in France or within the European Union.

4.6. The Data hosted by S4E SOFTWARE, as well as the use of the Software by the Customer, are the sole responsibility of the Customer.

4.7. The Customer undertakes to use the Software in accordance with the instructions given in his/her personal account.

4.8. Use of the Software by the Customer is the sole responsibility of the Customer.

4.9. The Customer is hereby informed that, to function properly, the Software requires settings which are carried out by the Customer under its sole responsibility, ie. administration of users and access permissions, definition of alert rules, configuration of the characteristics of the Sites, etc

4.10 The Customer has an FTP account for depositing the Data files via the communication gateways installed on Site and an FTP account for consulting the archives. These accounts may only be used for the purposes for which they were designed. The use of these accounts by third parties or companies, or by computer programs that are not exclusively designed for the deposit of Data files over the Internet, is strictly excluded. 

In particular, automated devices for reading the contents of directories or for depositing mass Data files (representing more than one week’s worth of Data) are excluded. 

The Customer is responsible for the confidentiality of the access codes to these accounts.

Article 5 – Technical Assistance

The Customer benefits from support for the use of the Software on S4E SOFTWARE working days.

a/ by telephone, Monday to Friday, 09 am to 12 pm and from 14 pm and 17 pm (Paris time) 

b/ by prior telephone appointment confirmed by email 

c/ by e-mail from 09 am and 12 pm and from 14 pm and 17 pm (Paris time). Access to technical support is exclusively reserved for customer administrators trained by S4E SOFTWARE.

Article 6 – Maintenance

6.1. S4E SOFTWARE makes every effort to ensure the availability of the Services and Customer’s Data 24 hours a day, 7 days a week, subject to preventive maintenance interventions that S4E SOFTWARE undertakes to carry out during off-peak hours when  use of the Software is minimal and except in the event of force majeure or External Cause.

6.2. The Customer acknowledges that the techniques employed by S4E SOFTWARE relate to a complex field of computer technology. As such as, S4E SOFTWARE’s commitment is an obligation of means. It is therefore the Customer’s responsibility to take all necessary measures to compensate for interruptions to the Services dur, in particular, to maintenance, implementation of technical improvements or force majeure.

6.3. Interruption of the Services for any reason whatsoever shall not entitle the Customer to any compensation.

Article 7 – Data confidentiality and data protection

S4E SOFTWARE agrees to keep the Data confidential, not to disclose the Data to any third party – including the Host – on any mediums whatsoever, not to make any copies of the Data other than for technical purposes, and not to use the Data for any purposes other than to carry out the Agreement.

Only technical personal (developers, operators, support) employed directly by S4E SOFTWARE are authorised to access Customer Data and for maintenance and technical support purposes only.

The Raw Data (files received or collected from the sites) belonging to the Customer and hosted by S4E SOFTWARE, are and remain the property of the Customer.

The databases and their content hosted on S4E SOFTWARE servers are the property of S4E SOFTWARE. The Customer may consult and export these data freely through the tools provided by S4E SOFTWARE.

S4E SOFTWARE guarantees the confidentiality of customer account data with respect to third parties. To this end, it is specified that the creation of third-party user accounts and the sharing of data with third-party account are the sole responsibility of the customer.

S4E SOFTWARE may use, without restriction and including for services provided to third parties, Operational Data (hardware data, sensor data and more generally all data from the sites) in an aggregated and anonymous manner.

Article 8 – Intellectual property

8.1. S4E SOFTWARE remains the owner of all intellectual property rights relating to the Software and the elements available on the ENERGYSOFT site (databases, management tools, platform, graphic charter, texts, photographs, images, icons, sounds, videos and more generally all information, in whatever form, made available to the Customer under the Contract) which are protected or protectable under copyright law.

8.2. The Agreement does not transfer any ownership or private rights of any kind to the Customer in respect of the Software or the Customer Space, other than the non-exclusive right of use as an end user for its own personal needs, during the term of this Agreement and within the strict framework of the Agreement.

8.3. In this respect, the Customer is therefore prohibited from copying or reproducing all or part of the Software by any means and on any medium, existing or future, as well as adapting and translating the Software into any other language, or reverse engineering or using any other method to attempt to access the source codes or attempt to hijack the communication protocol between the browser and the S4E SOFTWARE servers.

The Customer agrees not to attempt to reverse engineer, decompile, translate, disassemble or otherwise attempt to discover the source code of the Software.

S4E SOFTWARE reserves the exclusive right to intervene on the Software to enable it to be used in accordance with its intended purpose and in particular to correct errors. The Customer therefore expressly refrains from intervening or having a third party intervene on the Software.

8.4. The Customer is strictly prohibited from modifying the Software or creating derivatives based on it, as well as from copying, reselling, sharing, renting, leasing (hire purchase), encumbering, granting sub-licences or lending all or part of the Software, whether in whole or in part.

Similarly, the Customer is not authorised to create derivative products from all or part of the Software or its documentation. The Customer is not authorised to trade the subscriptions it has taken out with S4E SOFTWARE.

Article 9 – Force majeure – External causes

In accordance with the provisions of Article 1218 of the French Civil Code, S4E SOFTWARE may not be held liable in any way with whatsoever to the Customer in the event of interruption of the Services for any period whatsoever, due to Force Majeure or External Causes.

Force Majeure is defined as such by the case law of the French courts.

An external Cause is any event external to S4E SOFTWARE, which makes it impossible for S4E SOFTWARE to perform all or part of its obligations under the Contract in accordance with the agreed terms. In this respect, the Parties agree that any failure of the Customer’s equipment using the Software, the malfunctions or interruptions of the electrical network, the malfunction or interruption of the Internet or the failures of telecommunications operators or the Host, and more generally any event beyond the control of S4E SOFTWARE, will be considered as External Causes within the meaning of this article.

Article 10 – Guarantees – Liability

10.1. S4E SOFTWARE makes no warranty, express, implied, statutory or otherwise, as to the performance or results of the information it disseminates or the Services it offers. The information disseminated by S4E SOFTWARE is not intended as advice. The Software is deemed to be made available to Customer’s « as is » without being subject to specific adaptations measures. They are similar to standard software packages which cannot meet all the specific needs of Customers. It is therefore the Customer’s responsibility to verify the suitability of the Services offered by S4E SOFTWARE to their needs and to take all necessary precautions.

10.2. The Customer acknowledges that he/she is aware of the characteristics and limitations of the Internet as described below:

• Data transmissions on the Internet are only relatively reliable, as they circulate on heterogeneous networks with varying characteristics. As a result, no one can guarantee that the Internet will work, and this applies in particular to e-mails, SMS messages or smartphone notifications.
• That data circulating on the Internet is not protected against possible misappropriation and that therefore the communication of passwords, confidential codes, Identifiers, etc. is carried out by the Customer at his/her own risk;
• That it is the Customer’s responsibility to take all appropriate measures to protect its own data and/or software on its servers from contamination by attempts by third parties to intrude into its computer system.

The Customer also acknowledges that he/her is aware of all its obligations and, more generally, of all the conditions relating to the use of the Services offered by S4E SOFTWARE.

10.3. Accordingly, the Customer expressly agrees that under no circumstances shall S4E SOFTWARE, nor its shareholders, officers, subsidiaries, affiliates, employees, suppliers and service providers, be liable, on any basis whatsoever, for any damage, whether direct or indirect, consequential or otherwise, incidental or negligent, etc., including loss of profit, loss of use, loss of data or other intangible losses, loss of profit that the Customer or any third party may suffer as a result of (a) the use of or inability to use the Software, (b) unauthorised access to or alterations of transmissions or data, or (c) any other matter relating to the Software including in the event that S4E SOFTWARE has been advised of the possibility of such damages or loss. In no event will S4E SOFTWARE be liable for any direct, indirect, special, incidental or consequential damages or any damage whatsoever resulting from the use of the Software.

In the event that S4E SOFTWARE is held liable, the compensation for the damage suffered may not exceed the amount of the annual subscription to the Services incriminated by the Customer.

Article 11 – Price and invoicing

11.1. Prices of Services

Use of the Software and Services is subject to an annual subscription. The subscription price, payment terms and conditions are set out in the commercial offer accepted by the Customer. 

The price is based on the number of Sites monitored and the characteristics of each Site (peak power, number of measurement points). The price may be revised upwards or downwards depending on the number of Sites and the actual characteristics. Payment of the price is compulsory and the amounts paid are non-refundable. Invoices are issued by S4E SOFTWARE in accordance with the commercial offer accepted by the Customer and with Article L.441-3 of the French Commercial Code. The billing period begings with the first Data sent from the monitored Site. Any annual periods started is due in full regardless of the actual duration of the supervision.

In accordance with Article L.441-6 of the French Commercial Code, any sum unpaid on the due date will be subject to late payment penalties calculated on the basis of the interest rate applied by the European Central Bank plus ten percentage points. Late payment penalties are payable without any reminder or formal notice being required. In addition, any Customer in default of payment will automatically owe S4E SOFTWARE of a fixed indemnity for collection costs equal to 40 euros. In the event of a regulatory change in the amount of this fixed indemnity, the new amount will automatically be substituted for that shown in the Contract.

The prices for the Services are revised once a year, on 1st January, in accordance with the following formula: P = P0 x (S/S0)

In which:

• P represents the rates after revision
• P0 represents the rates applied during the previous year
• S represents the latest known SYNTEC index published on the day of the revision, 15 December of the current year
• S0 represents, for the first revision, the SYNTEC index in force on the day the contract takes effect, and for subsequent revisions, the SYNTEC index in force on the day of the previous tariff revision.

11.2. Data traffic prices on mobile networks

The Customer shall not hold S4E SOFTWARE liable for any misuse of the SIM card. The Customer declares that he/she is aware of the risks associated with this functionality and assumes the consequences, in particular the financial consequences.

The parties agree that the technical data emanating from the Mobile Operator’s electronic communication systems and means (such as taxation recordings, their reproductions on microfiche, optical discs, magnetic tapes, etc.) will be authentic between them and will have the value of a written document within the meaning given to this term in Article 1366 of the French Civil Code until proof of an obvious error in the said systems, in particular in order to establish the invoicing of the Services and/or in the event of a claim within the framework of the performance of the Services. In the event that this data is communicated to the Customer, the latter may not use it for any purpose other than the verification of its invoices.

11.3. Prices for data storage

The data stored is divided into three categories (i) office files (pdf, images, video, etc.) used in Energysoft (CMMS, site configuration) are limited to 50 MB per site with a subscription, (ii) the raw data archives sent by the supervised sites are kept online for 3 months, then stored in a glacier-type space. S4E SOFTWARE reserves the right to purge this glacier at any time after notification by e-mail, (iii) data stored in a database are kept for an unlimited period of time. However, S4E SOFTWARE reserves the right to modify the storage conditions after notification by e-mail at latest 3 months before the effective date of the modification.

Article 12 – Subscription to Services

Use of each Software package is subject to an annual subscription. Invoicing takes place at the beginning of the period. The billing period begins with the first Data transmission, whatever its quality or nature, from the Site being supervised. Any annual periods started is due in full, regardless of the actual duration of the supervision.

Where the invoice is quarterly, a single invoice will be issued per quarter (at the beginning of the period). This invoice contains the subscriptions for the forthcoming period and the subscriptions for the Sites commissioned in the quarter just ended. The subscription start date is aligned with the beginning of the month of the first reception of Data.

Article 13 – Communication M2M

The use of a SIM card with a monthly fee is subject to a subscription according to the billing conditions defined in Article 12. The use of SIM cards supplied by S4E SOFTWARE is reserved for the transmission of data to the Energysoft service. Termination of the contract results in termination of the M2M communication services provided.

Article 14 – Temporary suspension of access to Services

In the event of non-payment on the due or in the event of failure by the Customer to comply with any other of its obligations under the terms of the Contract, S4E SOFTWARE is entitled to suspend, ipso jure, access to the Customer’s Services eight (8) days after written notification, possibly sent by e-mail, reminding the Customer of the due date and the sums to be paid or, as the case may be, compliance with its obligations, has remained without effect. Suspension taken out by the Customer, which shall continue for the agreed term.

Article 15– Termination of the Contract

15.1. Termination of the Contract at the Customer’s initiative

The Customer may terminate the Contract in the following cases:

a/ unavailability of the Services for a period exceeding seven (7) days without information from S4E SOFTWARE on the implementation of corrective actions;

b/ during the Initial Terms, the Customer may terminate the Contract on the anniversary date of the Effective Date, subject to two (2) months notice and on the express condition that:

• the Site changes ownership if the Customer is the owner of the Site, or
• the contract binding the owner of the Site to the Customer is terminated, it being understood that the non-renewal of this contract does not authorise the Customer to terminate this Contract.

The Customer will be liable to pay an indemnity equal to twenty percent (20%) of the total amount (excluding VAT) of the subscription price due to S4E SOFTWARE for the Initial Term.

c/ after the Initial Term, the Customer may terminate the Contract on the anniversary date of the Subscription Effective Date, subject to two (2) months’ notice without further conditions or compensation.

The termination is notified to S4E SOFTWARE by e-mail with a request for acknowledgement of receipt addressed to the S4E SOFTWARE sales department (sales@s4e-software.com)

15.2. Termination of the Contract at S4E SOFTWARE’s initiative

S4E SOFTWARE may terminate the Contract at any time in the following cases:

a/ breach by the Customer of any of its obligations under the Contract;

b/ the amount of information uploaded and/or exchanged by the Customer or the Customer’s Sites causing operational incidents on S4E SOFTWARE’s servers after notification to the Customer and without response from the Customer within one (1) month.

Termination is notified to the Customer by registered letter or by e-mail with acknowledgement of receipt sent to the Customer’s registered office. 

Whatever the reason for the cancellation, it will not give rise to reimbursement of the price of the subscription for the current periods.

Article 16 – Complaints

Any claim and/or dispute by the Customer against S4E SOFTWARE must be made by the Customer at the latest 96 working hours after the event, under penalty of forfeiture.

Article 17 – Applicable law and settlement of disputes

This Agreement is governed by and shall be construed in accordance with the substantive laws of France. In the event of a dispute arising out of the Contract, S4E SOFTWARE and the Customer will endeavour to settle the dispute amicably before taking any legal action. In the event of persistent disagreement, exclusive jurisdiction is attributed to the Courts of Lorient (56), notwithstanding multiple defendants or third party claims, even for emergency proceedings or protective proceedings in summary proceedings or by petitions.

Article 18 – Miscellaneous provisions

S4E SOFTWARE and the Customer are independent entities. Therefore, the Agreement is not intended to create any partnership, subordination or agency relationship between the parties.

This Agreement represents the entire agreement between S4E SOFTWARE and the Customer and supersedes all oral or written communications, terms and conditions or other documents, with the same subject matter, submitted by the Customer.