| These GENERAL TERMS AND CONDITIONS may be modified at any time; the applicable version is the one available on the WEBSITE at the time the order is placed 1. DEFINITIONS 1.1. Client shall mean the legal entity which has access to SPOT Ortho Online SERVICE. When the CLIENT is a government entity (civil agency, public department, ministry…), it shall be deemed to be only such part of the government entity as located at the address indicated in the registration form. 1.2. Client Account shall mean the CLIENT account from which the CLIENT is authorised to use SPOT Ortho Online SERVICE, by using its personal key and password. 1.3. GENERAL TERMS AND CONDITIONS shall mean the present general terms and conditions for the SPOT Ortho Online SERVICES. 1.4. Orthorectified Source File shall mean any SOURCE FILE orthorectified by Spot Image under a SERVICE. 1.5. Product shall mean all or part of a SCENE orthorectified by Spot Image. 1.6. Scene shall mean any SPOT® satellite image referenced at Spot Image and available on the WEBSITE. 1.7. Service shall mean any service provided by Spot Image and consisting in the orthorectification of a SOURCE FILE. 1.8. Source File shall mean any file of the CLIENT which contains any SPOT or Formosat-2 satellite image, uploaded by the CLIENT to Spot Image’s WEBSITE and which shall be orthorectified. Each SOURCE FILE shall include a raster file and a metadata file. 1.9. SPOT Ortho Online Service shall mean any service offered by SPOT IMAGE on the WEBSITE enabling the CLIENT to order online PRODUCTS and/or SERVICES. 1.10. Website shall mean Spot Image’s website from which the CLIENT may access SPOT Ortho Online SERVICE and available on http://spotortho.spotimage.com. 2. GENERAL All the supply of SPOT Ortho Online SERVICES shall be governed by these GENERAL TERMS AND CONDITIONS. Any clause or condition stating otherwise which appears in any document addressed by the CLIENT to Spot Image shall be ineffective against Spot Image. 3. SPOT Ortho Online SERVICE ACCESS CONDITIONS 3.1. The access to any SPOT Ortho Online SERVICE is subject to the prior registration of the CLIENT. Unless otherwise agreed by Spot Image, any registration request concerning SPOT Ortho Online SERVICES shall be accompanied with a registration form duly filled, available on the WEBSITE or provided by Spot Image. Upon examination of the registration request, Spot Image shall confirm to the CLIENT its acceptance or refusal of the registration. The acceptance of the registration of the CLIENT shall result in the creation of a CLIENT ACCOUNT from which the CLIENT may order SPOT Ortho Online SERVICES. The CLIENT warrants that any information given to Spot Image for the registration to SPOT Ortho Online SERVICES is accurate and that it shall inform Spot Image immediately upon modification of such information. 3.2. These GENERAL TERMS AND CONDITIONS are deemed to be irrevocably accepted by the CLIENT upon registration to SPOT Ortho Online SERVICES. 3.3. Upon creation of the CLIENT ACCOUNT, Spot Image will provide the CLIENT with its personal key and password. The CLIENT shall modify its password immediately upon its first access to SPOT Ortho Online SERVICES. 3.4. The CLIENT is responsible for any use of SPOT Ortho Online SERVICES from its CLIENT ACCOUNT. Spot Image will record any operation made from the CLIENT ACCOUNT, which shall constitute evidence of the ordering. Spot Image reserves the right to suspend the access of the CLIENT to SPOT Ortho Online SERVICES if Spot Image consider that the CLIENT ACCOUNT may be used by a third party. 4. TERM – Termination – Suspension 4.1. Term The registration and the CLIENT ACCOUNT shall be valid until it is terminated by either party. 4.2. Termination Spot Image may terminate for convenience the registration of the CLIENT and the CLIENT ACCOUNT at any time, without prior notice and without having to pay any indemnity or damages of any kind. The CLIENT may terminate its registration, without indemnity, with a fifteen (15) days prior notice. In the event of termination of the registration, the order already received and confirmed by Spot Image shall continue to be performed, without prejudice to Spot Image’s right to terminate any order according to article 14 - CANCELLATION. 4.3. Suspension Spot image may suspend immediately the access to the CLIENT ACCOUNT and/or the performance of any order if the CLIENT fails to comply with any provision of theses GENERAL TERMS AND CONDITIONS. 5. ONLINE ORDERS Notwithstanding any clause to the contrary, the GENERAL TERMS AND CONDITIONS apply to any order placed by a CLIENT on the WEBSITE. By clicking the “Confirm your order” button, the CLIENT validates its order. Spot Image reserves the right to accept or refuse any order, at its sole discretion. In any case, Spot Image shall be bound by no order unless it has been expressly confirmed by email by Spot Image. For the sake of clarification, automatic acknowledgements of receipt received by the CLIENT shall not be considered as a confirmation of the order by Spot Image. 5.1. Product Orders The CLIENT may order online a PRODUCT, by selecting on the WEBSITE the corresponding SCENE. Upon validation of the order by the CLIENT, the latter shall receive an automatic acknowledgement of receipt detailing the order conditions. Then Spot Image shall, in reasonable time, send to the CLIENT a confirmation order by email. The CLIENT acknowledges and warrants that it has read and fully accepted the “CONDITIONS APPLICABLES TO THE SUPPLY OF PRODUCTS”, as detailed below, which apply to any online order of PRODUCT. 5.2. Service Orders Any online order of SERVICE shall be accompanied with a SOURCE FILE uploaded by the CLIENT on the WEBSITE. Upon validation of the order by the CLIENT, the latter shall receive an automatic acknowledgment of receipt detailing the order conditions. Spot Image will perform a feasibility study of the order, and then send to the CLIENT an email confirming the order, or inform the CLIENT that its order has been rejected. The CLIENT acknowledges and warrants that it has read and fully accepted the “CONDITIONS APPLICABLES TO THE SUPPLY OF SERVICES”, as detailed below, which apply to any online order of SERVICE. 6. DELIVERY – TRANSFER OF RISKS 6.1. Terms of Delivery The delivery times indicated on the WEBSITE are given for information only and are not binding. Any overrun of the term of delivery does not authorize the CLIENT to refuse the total or partial delivery of the PRODUCTS and/or the ORTHORECTIFIED SOURCE FILES, nor to claim any indemnity whatsoever. Should Spot Image, for any reason, find itself through its doing unable to deliver the PRODUCTS and/or ORTHORECTIFIED SOURCE FILES ordered, the CLIENT shall be entitled only to a refund of the price, without any indemnity of any nature whatsoever. 6.2. Delivery Conditions All PRODUCTS and/or ORTHORECTIFIED SOURCE FILES are delivered online through FTP server. An electronic message shall be sent automatically to the CLIENT to inform him about the availability of the PRODUCTS and/or ORTHORECTIFIED SOURCE FILES. Unless otherwise indicated, the CLIENT shall then have a deadline of ten (10) days, starting from the said electronic message, to download the PRODUCTS and/or the ORTHORECTIFIED SOURCE FILES ordered. Should the CLIENT not download the ordered PRODUCTS and/or ORTHORECTIFIED SOURCE FILES within the time allowed, the CLIENT may, within six (6) months from the date of the initial availability, request Spot Image to place the PRODUCTS and/or the ORTHORECTIFIED SOURCE FILES available back on the delivery server for an additional ten (10) days period, for an additional payment of two hundred (200) Euros for management costs. 6.3. Transfer of Risks The risks pertaining to the PRODUCTS and/or ORTHORECTIFIED SOURCE FILES sent shall be transferred to the CLIENT as from the placing of the PRODUCT and/or ORTHORECTIFIED SOURCE FILE on the delivery server. 7. PRICES Prices are displayed in the WEBSITE in Euro, exclusive of taxes, “Ex-Works” (Incoterms C.C.I. 2000), and are without prejudice to specific pricing conditions agreed between Spot Image and the CLIENT. Prices may be modified by Spot Image at any time. In all cases, the customs charges and taxes shall be borne exclusively by the CLIENT. 8. PAYMENTS For each order confirmed, Spot Image shall send an invoice to the CLIENT. All Spot Image invoices are payable without discounts or reductions. Unless otherwise stated, the payment must be made by transfer at the latest thirty (30) days after the PRODUCTS and/or the ORTHORECTIFIED SOURCE FILES are made available. The sums shall be credited to the Spot Image account appearing on the order confirmation and/or the invoice. All overdue sums, totally or partially, shall carry, after formal notice to pay addressed in writing to the CLIENT, interest at a rate of 1.5%, (one and a half percent) per month, from the due date until the actual date of payment. Without prejudice to any other action, Spot Image reserves the right to apply one or more of the following provisions: - to suspend the current orders until complete payment of the price;
- to refuse all future orders;
- to suspend the licence of use and/or the right to make added value on the PRODUCTS and/or ORTHORECTIFIED SOURCE FILES;
- to claim and obtain the refund of all the costs incurred as the result of the contentious recovery of the sums due, including the legal fees;
- to bring a legal action in order to defend the interests of Spot Image.
In any case, payments may not be suspended, nor form the subject of any compensation, without prior written consent by Spot Image. By express agreement, any term not respected or renewed by the CLIENT shall cause ipso facto the cancellation of payment deadlines which may have been granted upon confirmation of the order. Spot Image shall then be able to claim immediate payment of all outstanding invoices. Concerning the non-delivered quantities, Spot Image shall be able to either claim payment before collection, or cancel the balance of the order, without prejudice to any other damages. 9. REPSONSIBILITY – LIABILITY - GUARANTEE 9.1. The CLIENT declares that it has knowledge in the area of satellite imagery and that it is fit to define the characteristic of its needs and of the suitability of the PRODUCTS and/or SERVICES to their satisfaction, as Spot Image shall provide as regards the PRODUCTS and/or SERVICES no advice or recommendation whatsoever in this respect. Consequently, it shall be for the CLIENT to decide on the use of the PRODUCTS and/or SERVICES marketed by Spot Image, and Spot Image shall under no circumstances be held responsible as regards the suitability of these PRODUCTS and/SERVICES concerning any use whatsoever. 9.2. Spot Image shall endeavour to satisfy the CLIENT's request by delivering PRODUCTS and/or SERVICES which comply with its order. However, these PRODUCTS and/or SERVICES being complex, Spot Image can under no circumstances neither guarantee them against any hidden defect or fault nor warrant that any non conformity will or might be corrected. Spot Image's guarantee shall be limited either to the replacement of the PRODUCT or SERVICE carrying an apparent bad workmanship defect if they are available, or to the refund of the PRODUCT and/or SERVICE, with the exclusion of any indemnity or damages. Any claim concerning the apparent defects, quality, quantity and/or non-conformity of the PRODUCT and/or SERIVCE must, to be admissible, be well-founded and duly formulated in a recorded delivery letter at the latest seven (7) days after the receipt of the PRODUCTS and/or ORTHORECTIFIED SOURCE FILES by the CLIENT. This deadline can under no circumstances exceed one (1) month as from the initial date of availability of the PRODUCT and/or ORTHORECTIFIED SOURCE FILE. No return of the PRODUCTS and/or ORTHORECTIFIED SOURCE FILE shall be accepted without prior written consent by Spot Image. 9.3. In addition to the apparent defects insufficiently indicated upon receipt of the PRODUCT or ORTHORECTIFIED SOURCE FILE concerned, shall also be excluded the defects or deterioration caused by an external accident (erroneous assembly or loading, faulty maintenance, abnormal use...) or by a modification of the PRODUCT and/or ORTHORECTIFIED SOURCE FILE which has not been planned nor specified by Spot Image. 9.4. Under no circumstances can Spot Image , nor anybody having contributed to development and/or production and/or delivery of the SPOT Ortho Online SERVICES be held responsible, on the basis of responsibility for product defects, for the damages caused to the CLIENT's goods which are useful for his profession. The CLIENT shall not be able to bring an action against Spot Image on this ground. 9.5. In no event shall Spot Image, nor anybody having contributed to development and/or production and/or delivery of the PRODUCT and/or SERVICE and/or SPOT Ortho Online SERVICE, be liable for any claim, damage or loss incurred by the CLIENT or a third party, including without limitation indirect, compensatory, consequential, incidental, special, incorporeal or exemplary damages arising out of the use of or inability to use the PRODUCT and/or SERVICE and/or SPOT Ortho Online SERVICE, and shall not be subject to legal action on this ground. 9.6. In any case, the financial cumulative liability of Spot Image and of anybody having contributed to development and/or production and/or delivery of the SPOT Ortho Online SERVICES is limited to the price paid by the CLIENT to Spot Image for such SPOT Ortho Online SERVICES. 10. NON-EXCLUSIVITY No CLIENT shall be able to claim an exclusive right of use on any PRODUCT and/or SERVICE. 11. CONFIDENTIALITY The CLIENT commits itself, for a period of five (5) years, to consider confidential all information, of any nature whatsoever, which it may have obtained as a result of or on the occasion of the use of Spot Ortho Online SERVICES or the supply of the PRODUCT or ORTHORECTIFIED SOURCE FILE. The CLIENT guarantees Spot Image that his personnel and sub-contractor shall respect and maintain the confidentiality of the said information. The non-respect of this confidentiality clauses shall lead to the immediate termination of the contractual relationship, which the CLIENT shall be exclusively responsible for. 12. TRADEMARKS The CLIENT hereby acknowledges that the trademarks registered by Spot Image are the property of the latter. The supply to the CLIENT by Spot Image confers on the CLIENT no right to use the SPOT®, Spot Image® and SPOTView® trademarks and logographs, without prejudice to Article 1 of the CONDITIONS APPLICABLES TO THE SUPPLY OF PRODUCTS. 13. FORCE MAJEURE Spot Image cannot be considered to be failing to meet its contractual obligations if these failures are due to the occurrence of a Force Majeure. Force Majeure designates all the occurrences which are beyond the reasonable control of Spot Image, of any nature whatsoever, and in particular all breakdowns of a SPOT satellite in activity and/or of another satellite of which Spot Image distributes the PRODUCTS and/or of the SPOT system, natural catastrophes, bad weather, fires, collective work disputes, strikes, sabotage, embargoes, interruptions or delays in the transport or means of communication, war, acts or regulations issued by the French government, by public, civil or military authorities (including delays in the obtainment of authorizations or licences of any sort), by the U.N., which may occur as from the date of the order and would prevent its total or partial execution. 14. CANCELLATION Should all or part of the price not be paid on the due date, or should the CLIENT not comply with any provision of the GENERAL TERMS AND CONDITIONS or specific conditions, Spot Image reserves the right to cancel immediately the supply and all other supplies being carried out, by sending of a letter expressing the intention of Spot Image to use this clause. The advance payments paid on the price of the orders cancelled shall be retained by Spot Image without prejudice to any other dues, costs, interests or damages that the CLIENT may be ordered to pay. 15. JURISDICTION AND LAW APPLICABLE All controversies between the parties shall be settled under the arbitration of the Commercial Court of Toulouse. The law applicable shall be French law. 16. FINAL PROVISION Should Spot Image not take advantage, at any moment, of any one of the provision of the GENERAL TERMS AND CONDITIONS, this cannot be interpreted as constituting a renunciation or relinquishment, by Spot Image, of any one of its rights, nor shall it affect the validity of all or part of the GENERAL TERMS AND CONDITIONS, nor shall it constitute an obstacle to any future action by Spot Image. The CLIENT shall not transfer part or all of its rights and obligations under the GENERAL TERMS AND CONDITIONS without Spot Image’s prior written consent. |