SCALEDYNAMICS has developed the OxygenIT API to enable its customers with an accurate and granular way of measuring the energy consumption and carbon emissions of their use of public cloud or on-premise IT infrastructure.

With OxygenIT API, the Customer has access to application programming interfaces so they can report on their IT service energy consumption and carbon emissions, and get automated actionable reduction recommendations.

“Admin Account” means the account created by a Customer representative on the OxygenIT console in order to register its company and access the Service. The Admin Account must provide accurate and complete registration information and is responsible for the security of its password and for any use of its account.

“Affiliate ” means, with respect to a Party, another legal entity that directly, or indirectly through one or more intermediaries, controls or is controlled by or is under common control with this Party, in accordance with the provisions of article L233-3 of the French Code de commerce.

“API“ means SCALEDYNAMICS’ application programming interface(s), including all documentation, code, and data made available by SCALEDYNAMICS.

“API Key“ means credentials issued by SCALEDYNAMICS to access the API.

“Cloud Services” means the licensed third-party cloud services selected by SCALEDYNAMICS in conjunction with the delivery of the Service.

“Commercial License” means the then-current commercial license available for the Service.

“Confidential Information” means any and all information that a Party may communicate to the other Party pursuant to this ALA, in written or other tangible form and marked “Confidential”, “Proprietary” or collected by a Party pursuant to this ALA or that appears to a reasonable person to be confidential. Confidential Information shall include but shall not be limited to any business, commercial, technical or other information related to a Party or to the subject matter of this ALA (e.g. without limitation, know-how, trade secrets, inventions, development, present or future products, work-in-progress, future development, algorithms, schematics, graphical interface, designs, business information).

“Customer Data” means content, information or other materials of the Customer or its Affiliates provided by or through the Customer to SCALEDYNAMICS or that are transmitted, received, posted, stored, hosted, cached, streamed, or displayed on or through the API or in connection with the Service.

“Documentation” means the SCALEDYNAMICS-provided user manuals, training materials, descriptions and technical specifications, technical manuals, supporting materials and other information relating to the Service.

“Effective Date” means the date the applicable Order Form is executed or the date this Agreement is referenced by the applicable purchase order or by any applicable SCALEDYNAMICS’ document (e.g. POC) or the date of creation of the Admin Account when the Service is automatically obtained from SCALEDYNAMICS’ website.

“Fees” means the fees applicable to the use of the Service in accordance with the then-available Service Plan selected by the Customer, stated in the Order Form (or, if no such price is specified, the price set out in SCALEDYNAMICS’ then-current standard published price list available on SCALEDYNAMICS’ website).

“Login Credentials” means collectively the Admin Account identifier, valid email and the password set or changed by the Admin Account.

“Monitored Units” means the number of Customer’s IT resources such as, but not limited to, servers, virtual machines, storage service, disk, backup service, Kubernetes node, container, serverless function, or PaaS or SaaS services, whose energy consumption and carbon emissions are calculated by the OxygenIT API.

“Order Form” means any order form, sales quotation, proposal, purchase order or other ordering document or webpage issued or accepted by SCALEDYNAMICS that references this Agreement. Each Order Form will form part of this Agreement.

“Output“ means any data, results, or reports generated through the use of the API.

“Party(ies)” means individually or collectively the Customer and/or SCALEDYNAMICS.

“Service“ means the services provided by SCALEDYNAMICS that allow the Customer to calculate cloud and on-premise services’ carbon and energy footprint metrics via the API.

“Service Plan” means the description set out on SCALEDYNAMICS and OxygenIT’ websites regarding the pricing, list of features, available resources and limitation of usage related to the Service chosen by the Customer.

“Support” means the support services (if available) provided by SCALEDYNAMICS to the Customer and then-current applicable Fees.

“Updates” means any minor version of the API, developed by SCALEDYNAMICS subsequent to the Effective Date, which implements minor improvements or augmentations, or which corrects failures of the API to conform to the then-current Documentation.

“Usage Metrics” means the Monitored Units, number of API Calls and/or any other quantified information described in the Service Plan and set in the Order Form for the purpose of defining the amount of the Fees.

The purpose of this Agreement is to establish the terms and conditions under which SCALEDYNAMICS will provide the Service and the Customer will use the Service set forth in the Order Form or in the then-current applicable Service Plan which may be referenced by the Order Form.

Accordingly, the primary obligation of SCALEDYNAMICS under this Agreement is to grant access and usage rights to OxygenIT API as specified in Section 3.

SCALEDYNAMICS shall use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, including Sundays and public holidays, subject to the following conditions.

However, the Customer accepts that from time to time the Service may be inaccessible or inoperable for various reasons, including but not limited to scheduled maintenance procedures or Updates or upgrades or certain unscheduled services or equipment malfunctions that are beyond the control of SCALEDYNAMICS such as the interruption or failure of the Cloud Services, or telecommunication or digital transmission links, hostile network attacks, network congestion or other failures, etc.

The content and scope of the Service depends on the available Service Plans listed on OxygenIT.io website and chosen by the Customer in the Order Form.

The Customer can access the then-current list of features on OxygenIT.io website.

The Customer understands and agrees that SCALEDYNAMICS (i) may change, suspend or discontinue any part or all of the Service and (ii) notifies the Customer of any material change to or discontinuation of the Service by any commercially reasonable means including without limitation an email or via its website (a “Revision”).

IF ANY REVISION MATERIALLY AND ADVERSELY AFFECTS THE CUSTOMER’S USE OF THE SERVICE, THE CUSTOMER MAY TERMINATE THIS AGREEMENT WITHIN A FIFTEEN (15)-DAY-PERIOD FROM THE DATE OF SCALEDYNAMICS’ NOTICE OF REVISION. THE CUSTOMER’S CONTINUED USE OF THE SOFTWARE OR THE SERVICE FOLLOWING SCALEDYNAMICS’ NOTICE OF ANY REVISION CONSTITUTES CUSTOMER’S ACCEPTANCE OF THIS AGREEMENT AND THE REVISION. No Revision shall release the Customer from liability for all costs already incurred pursuant to the use of the Service.

For the sake of clarity, the Customer may upgrade to a Service Plan from another one, subject to payment of the specific then-applicable Fees.

The identification of the Admin Account accessing the OxygenIT console is performed using identifiers assigned by the Customer. This identifier is personal and confidential. The Customer agrees to take all necessary measures to keep these identifiers secret and not to disclose them in any form.

The Customer is solely responsible for the administration, use, and maintenance of their identifiers and those of their Admin Accounts. If the Admin Account discloses its Login Credentials to someone, the Admin Account shall be responsible for damages incurred by SCALEDYNAMICS, the Customer or any third party resulting or in connection with any use, disclosure, additions, deletions and modifications of such Login Credentials. If the Admin Account becomes aware of any unauthorized use of its Login Credentials, the Admin Account agrees to notify SCALEDYNAMICS immediately.

In the event of a lost password, the Admin Account may reset it using the password recovery procedure.

SCALEDYNAMICS provides to the Customer standard support by SCALEDYNAMICS’ qualified experts via email and chat regarding questions and problems related to using and accessing the Service under Commercial License. Responses are provided on a best-effort basis during French business hours in the CET time zone.

If available, specific support and maintenance conditions and/modalities shall be incorporated into a specific agreement between SCALEDYNAMICS and the Customer subject to the payment of additional support Fees.

The Customer acknowledges that access and/or use of the Service may be suspended or interrupted without prior notice during any schedules or unscheduled maintenance procedure performed by SCALEDYNAMICS.

However, SCALEDYNAMICS may, in its sole discretion, make available or implement any technical support, Updates and/or supplements of the Service and/or related information for downloading or use, and SCALEDYNAMICS may notify the Customer of the availability of these Updates from time to time at its discretion. 

SCALEDYNAMICS will implement Updates to the OxygenIT API Solution, including bug fixes, patches, and minor improvements that do not alter its functionality or add new features.

SCALEDYNAMICS will implement upgrades, which introduce new functionalities or modify the version of the OxygenIT API to offer enhanced features. 

SCALEDYNAMICS reserves the right to determine if an upgrade is included in the subscription or subject to additional Fees. If an upgrade incurs additional Fees, the Customer will have the option to accept or decline the upgrade.

Subject to compliance with this Agreement, SCALEDYNAMICS grants Customer a non-exclusive, non-transferable, revocable, limited license , for the Term of the Agreement, to:

- Access and use the API solely for the purpose of integrating it into Customer’s internal systems or services;
- Retrieve and display Output for internal business use or as agreed in the Order Form.

Customer acknowledges that the maximum number of calls to the API is limited as indicated in the Service Plan or the Order Form. In case Customers’ use of the API exceeds such limit, SCALEDYNAMICS may suspend the access immediately without prior notice.

The Customer is also granted a non-exclusive, non-transferable, worldwide right to reproduce and display SCALEDYNAMICS’ OxygenIT logo, for the Term of the Agreement, solely for the purposes of indicating that the Output is provided by SCALEDYNAMICS.

Under no circumstances should anything in this Agreement be construed as granting or assigning to the Customer and/or its Affiliates, either by implication, exhaustion, estoppel or otherwise (i) a license on the Service except as expressly permitted under this section, (ii) any right on any patent or patent application of SCALEDYNAMICS, which are implemented or otherwise practiced by or the use of the Service or which practice is induced by using the Service. All rights in the Service not expressly granted hereby to the Customer are reserved to SCALEDYNAMICS, as applicable

The Customer agrees not to:
‍
- Reverse engineer, decompile, or disassemble the API;
- Use the API in a way that exceeds the usage limits set by SCALEDYNAMICS or agreed in the Order Form;
- Sell, sublicense, or otherwise redistribute the API or its Output to third parties without prior written consent;
- Use the API to build or support any service that competes with SCALEDYNAMICS;
- Interfere with or disrupt the API or the servers providing it;
- Hack the Service;
- Remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels related to the use of the Service, including specific provision agreed in the Order Form about the source of the Output Data, or Documentation;
- File applications or make declarations in order to be granted Intellectual Property Rights for works or creations before any authority or office in the world, which derive, in whole or in part, from the Service; or
- Use the Service or the Software in any way that is against the law.

SCALEDYNAMICS may collect, analyze, present, and visualize data on the Customer use of the Service for the following purposes, including but not limited to: understanding the adoption of specific features, computing environments, troubleshooting, monitoring the Customer’s compliance with the ALA.

The Customer is informed that SCALEDYNAMICS is entitled to analyze the Usage Metrics in relation to the suspension of the Service (Section 13.1) or the termination of the Agreement (Section 13.2).

SCALEDYNAMICS reserves the right to access, collect and use, in an anonymized form, data relating to the viewing time of the Customer Data, location of the viewers of the Customer Data and logfiles (including the viewers’ IP addresses), subject to SCALEDYNAMICS’ compliance of the provisions of Section 8.

Unless required to provide the Service to the Customer and/or monitor the Customer’s compliance with the ALA and/or required by law, such usage data shall be anonymized by SCALEDYNAMICS.

All intellectual property rights in and to the API and Output are and will remain the exclusive property of SCALEDYNAMICS or its licensors. No rights are granted to the Customer other than as expressly set forth herein.

The Customer owns and retains all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

Customer agrees to comply with all applicable data protection laws, including the General Data Protection Regulation (GDPR). SCALEDYNAMICS does not process personal data through the API unless explicitly stated.

In the event the Customer processes Personal Data through the Service, such as Login Credentials, the Customer:
- acts as data controller for the processing of Personal Data processed in the Service, since the Customer determines the purposes and means of such processing of Personal Data;
- is responsible for providing legally adequate privacy notices and obtaining necessary consents for the processing of such Personal Data and represents to SCALEDYNAMICS that the Customer has provided all necessary privacy notices and obtained all necessary consents;
- retains full liability for any administrative, technical or organizational measures that the Customer may be required to undertake or implement under applicable data protection legislation.

In consideration of the license rights granted in Section 4 under a Commercial License and/or the Service and/or Service Plan selected by the Customer, the Customer shall pay the then-current applicable Fees. 

SCALEDYNAMICS calculates and bills Fees and charges as described on SCALEDYNAMICS’ website, based upon the Service Plan and related Usage Metrics which the Customer is using. Regarding usage-based Fees, SCALEDYNAMICS' measurement of Customer's use of the Service is final and shall prevail over Customer’s own measurement.

The Customer acknowledges and agrees that SCALEDYNAMICS will automatically charge the Customer credit card or other payment account on record with SCALEDYNAMICS in connection with the Customer’s use of the Service.

Requests for custom professional services such as, but not limited to, integration creation, deployment, in-house deployment, hardware equipment model design, are subjected to prior specific quotations issued by SCALEDYNAMICS and specific payment terms.

If no payment is indicated in the invoice, Order Form or purchasing documentation, the invoices are payable within thirty (30) days of the invoice date. The Customer is responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made to SCALEDYNAMICS, other than any taxes based on SCALEDYNAMICS' net income.

All amounts are payable and charged (i) at the beginning of the subscription for the Service, when the Customer places its order, and, (ii) at the time of each renewal. The Customer must terminate its subscription in accordance with this ALA thirty (30) days before it renews to avoid the billing of the Fees for the next subscription period.

The Customer represents and warrants to SCALEDYNAMICS that all of its payment information is valid and that the Customer is authorized to use the payment instrument indicated to SCALEDYNAMICS. The Customer will promptly update its payment information with any changes that may occur.

Changes in pricing – The Customer acknowledges that SCALEDYNAMICS’ may change the pricing related to the Service Plan by updating SCALEDYNAMICS’ website and/or by email to the Customer thirty (30) days prior to the new pricing taking effect. The Customer can object to the new pricing by sending an email to SCALEDYNAMICS within fifteen (15) days after reception of the new pricing notification. Objection to the change by the Customer might result in termination of the Agreement. The Customer’s continued use of the Software or the Service following SCALEDYNAMICS’ notice of any change in pricing constitutes Customer’s acceptance of this change in pricing.

Any invoices not paid when they reach their due date shall accrue interest based on a rate equal to three (3) times the current French statutory base rate, starting from the date when the invoice becomes due and without notification. Additionally, the Customer will pay a flat rate recovery cost indemnity in the minimum amount of forty (40) Euros per unpaid invoice as well as all other costs related to the collection of payments.

Notwithstanding the foregoing, any delay in payment authorizes SCALEDYNAMICS, without formalities or prior notice, to suspend the Customer's access to the Service until payment of the totality of the invoice, without prejudice to other possible actions that SCALEDYNAMICS could take because of the law or the present Agreement.

In the event of late payment, the provisions of the Service shall be suspended in accordance with the provisions of Section 13.

Unless otherwise stated, the Fees do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). The Customer is responsible for paying Taxes, except those assessable against SCALEDYNAMICS as measured by SCALEDYNAMICS net income. 

If SCALEDYNAMICS is required by law to collect Taxes on the provision of the Services, SCALEDYNAMICS will invoice the Customer for such Tax and the Customer must pay SCALEDYNAMICS the amount of the Tax that is due or provide SCALEDYNAMICS with satisfactory evidence of its exemption from the Tax. The obligation to pay any Taxes that the Customer may be required to pay in connection with Customer’s use of Services or Customer’s payment of amounts due to SCALEDYNAMICS under the Agreement shall be borne exclusively by the Customer. The Customer must provide SCALEDYNAMICS with accurate factual and adequate information and documentation (as determined by SCALEDYNAMICS), to help SCALEDYNAMICS determine if any Tax is due with respect to the provision of the Service.

If any deduction or withholding is required by applicable law, the Customer will notify SCALEDYNAMICS and will pay SCALEDYNAMICS any additional amounts necessary to ensure that the net amount that SCALEDYNAMICS receives, after any deduction and withholding, equals the amount SCALEDYNAMICS would have received if no deduction or withholding had been required. Additionally, the Customer will provide SCALEDYNAMICS with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.

For the duration set out in Section 12 and for five (5) years after the termination of the Agreement for any reason whatsoever, the Customer shall keep confidential and shall not disclose or otherwise make available to any third party the feedback, any user passwords, any API Key and any Confidential Information. The Customer will use the same efforts to prevent the unauthorized disclosure of the Confidential Information that it uses to protect its own similar confidential information in compliance with current business standards.

Each Party will use the other Party’s Confidential Information only to perform its obligations or exercise its rights under this ALA.

The Service back end architecture shall remain confidential and SCALEDYNAMICS undertakes to keep the Customer’s Data confidential.

The obligations of confidentiality shall not apply to any information which (i) is or later becomes publicly known or available without breach of this ALA by the receiving Party (ii) is lawfully obtained by the receiving Party from a third party lawfully in possession of any or all Confidential Information and which is not under an obligation of confidentiality with the disclosing Party with respect to such information or (iii) is disclosed by the receiving Party pursuant to a judicial order or by operation of law but then only to the extent as ordered or requested.

Prior to any legally compelled disclosure (legal proceedings, subpoena or other similar process), the Customer will, to the extent reasonably possible, give SCALEDYNAMICS notice and cooperate with SCALEDYNAMICS in protecting against such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information.

If a Party becomes aware of any unauthorized use or disclosure of any Confidential Information of the other Party, then such Party will promptly and fully notify the other Party in writing of all facts relating to such unauthorized use or disclosure.

SCALEDYNAMICS warrants that the Service will substantially operate according to, and substantially conform to the Documentation (except for defects or non-conformities causing minor and trivial deviations therefrom) when used in accordance with the ALA, the Documentation and/or SCALEDYNAMICS’ written instructions and/or applicable law.

SCALEDYNAMICS’s responsibility under said warranty shall be solely to correct at its costs and expenses any non-conformity or defect regarding the Service. Such warranty period is of thirty (30) days from the Effective Date and shall not be extended in the event of correction or workaround made.

For all warranty claims made by the Customer during the warranty period, SCALEDYNAMICS will use commercially reasonable efforts to resolve, at no charge to the Customer, any such non-conformities.

SCALEDYNAMICS DOES NOT GUARANTEE THE CONTINUING AVAILABILITY OF THE SERVICE OR THE CLOUD SERVICES.

TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, THE LIMITED WARRANTY SET FORTH IN THIS SECTION 9 IS EXCLUSIVE AND LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. SCALEDYNAMICS EXCLUDES ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

EXCEPT AS SET FORTH HEREIN, THE SERVICE IS PROVIDED TO THE CUSTOMER ON AN “AS IS” BASIS ONLY. SCALEDYNAMICS DOES NOT WARRANT AGAINST INTERFERENCE WITH THE CUSTOMER’S ENJOYMENT OF THE SERVICE, THAT THE DATA OUTPUT WILL MEET THE CUSTOMER’S REQUIREMENTS OR ARE FULLY ACCURATE, THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED.

THE CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF THE CUSTOMER DATA, CUSTOMER’S CONFIDENTIAL INFORMATION, AND PROPERTY.

SCALEDYNAMICS DOES NOT ENDORSE, SUPPORT, REPRESENT OR GUARANTEE THE COMPLETENESS, TRUTHFULNESS, ACCURACY, OR RELIABILITY OF ANY CUSTOMER DATA POSTED BY ANY CUSTOMER VIA THE SERVICE OR ENDORSE ANY OPINIONS EXPRESSED VIA THE SERVICE.

SCALEDYNAMICS DOES NOT WARRANT (I) THE RESULT OR EFFICIENCY OF ANY CUSTOMER’S BUSINESS, TECHNOLOGICAL OR INDUSTRIAL STRATEGY OR (II) CUSTOMER-LEAD PROCEEDINGS BASED UPON THE CUSTOMER’S USE OF THE SERVICE BEFORE ANY AUTHORITY OR ADMINISTRATION WITH REGARD TO CARBON EMISSION REDUCTION FOR ANY PURPOSES WHATSOEVER (INCLUDING BUT NOT LIMITED TO TAX REDUCTION).

The Customer acknowledges and agrees that SCALEDYNAMICS has set the scope of the license granted in Section 4.1 and entered into this Agreement upon the disclaimers of warranty and the limitation of liability set forth herein, that the same reflect an allocation of risk between the Parties, and that the same form an essential basis of the bargain between the Parties.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO A FINAL DECISION FROM A COURT OF COMPETENT JURISDICTION, SCALEDYNAMICS' TOTAL LIABILITY, FOR ANY REASON WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS ALA (INCLUDING THE USE OF THE SERVICE) SHALL NOT EXCEED IN THE AGGREGATE FEES EX VAT PAID BY THE CUSTOMER TO SCALEDYNAMICS FOR THE SERVICE (EXCLUDING THE PROFESSIONAL FEES IN CONSIDERATION OF THE SERVICE PROVIDED UNDER THE PSA) DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. IN THE EVENT WHERE (I) NO AMOUNT WAS PAID BY THE CUSTOMER WITH REGARD TO FEES WITHIN THE SAID TWELVE (12) MONTH PERIOD OR (II) THE LICENSE FOR THE SERVICE IS PROVIDED FREE OF CHARGE, SCALDYNAMICS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT IS LIMITED TO 2,000 EUR EX VAT.

NOTHING IN THIS AGREEMENT LIMITS OR EXCLUDES EITHER PARTY’S LIABILITY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY FRAUD OR FRAUDULENT MISREPRESENTATION, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

The Customer may not bring any claim against SCALEDYNAMICS nor file any legal action or proceedings in connection with and/or arising from the Agreement more than twelve (12) months after the cause of action arises.

SCALEDYNAMICS makes no representation that the Service is appropriate or available for use in any particular location. The Customer expressly acknowledges and agrees that any use of the Service is done entirely at its own risk and the Customer is responsible for compliance with any applicable laws.

SCALEDYNAMICS disclaims all warranties and liability for any damages incurred by the Customer, the Admin Accounts or by any third party relating to the Service when caused by:

- the Customer’s non-compliance with the terms and provisions of the ALA; or
- the Customer’s non-compliance with the Documentation; or     
- the upload, use or display of the Customer Data through the Service;
- use of the Service for a purpose other than that for which it is intended to; ora weakness, flaw or breach in the security of Customer’s IT equipment, architecture or system not directly and exclusively caused by the API; or
- delays, interruptions and disruptions of network and/or Internet transmissions;
- any failure, delay or interruption of the Cloud Services or Customer’s own cloud resources;
- third party components;
- force Majeure events.

The Customer agrees and acknowledges that:

- SCALEDYNAMICS has no responsibility or liability for the deletion or failure to store any Data History, Customer Data, and other communications maintained on or transmitted through use of the Service;
- The Customer is fully liable for its activities related to the use of the Service;
- The Customer is fully responsible for the consequences or damages resulting from the use of the Service.

EXCEPT WITH RESPECT TO (A) BREACHES OF THE CUSTOMER’S OBLIGATIONS SET FORTH IN SECTION 4.5 (CUSTOMER’S UNDERTAKINGS), SECTION 8 (CONFIDENTIALITY) AND IN SECTION 11.2 (THIRD-PARTY CLAIMS) AND (B) DAMAGES ATTRIBUTABLE TO THE CUSTOMER’S MISAPPROPRIATION, VIOLATION OR INFRINGEMENT OF SCALEDYNAMICS’ INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, DAMAGES RESULTING FROM LOSS OF DATA, SECURITY BREACH, PROPERTY DAMAGE, LOST REVENUE, LOST SAVINGS OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PERFORMANCE OF THE SOFTWARE OR SCALEDYNAMICS’ PROVISION OF SERVICE OR OF ANY OTHER OBLIGATIONS RELATING TO THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

SCALEDYNAMICS shall defend, indemnify, and hold the Customer harmless against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities awarded to a third party arising out of any non-frivolous claim by a third party that the Service as provided by SCALEDYNAMICS and when used in accordance with the provisions of this Agreement and the Documentation, infringes or misappropriates, as applicable, any copyrights or trade secrets under applicable laws of any jurisdiction within France, provided that the Customer gives SCALEDYNAMICS (a) prompt written notice of such claim; (b) sole authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as SCALEDYNAMICS may reasonably request, at SCALEDYNAMICS’ expense, in connection with such defense and/or settlement.

Notwithstanding the foregoing, SCALEDYNAMICS shall have no obligation or liability to the extent that the alleged infringement arises from (1) the combination, operation, or use of the Service with products, services, information, materials, technologies, business methods or processes not furnished or authorized by SCALEDYNAMICS; (2) modifications to the Software, which modifications are not made by SCALEDYNAMICS; or (3) use of the Service except in accordance with the ALA or the Documentation (circumstances under the foregoing clauses (1), (2), (3), collectively, “Customer Indemnity Responsibilities”).

Upon the occurrence of any claim for which indemnity is or may be due under Section 11.1, or in the event that SCALEDYNAMICS believes that such a claim is likely, SCALEDYNAMICS may, at its option (i) appropriately modify the Service so that it becomes non-infringing, or substitute functionally equivalent service; (ii) obtain a license to the applicable third-party intellectual property rights; or (iii) terminate this Agreement on written notice to the Customer and refund to the Customer an amount equal to the Fees ex VAT paid by the Customer for such Service under this ALA during the six (6) months period preceding the date of the termination notification. The obligations set forth in this Section 11.1 shall constitute SCALEDYNAMICS’s entire liability and the Customer’s sole remedy for any actual or alleged infringement or misappropriation.

THE CUSTOMER SHALL INDEMNIFY AND SAVE HARMLESS SCALEDYNAMICS FROM AND AGAINST ANY CLAIM, DEMAND OR LEGAL ACTION ALLEGING LOSS, COSTS, EXPENSES, DAMAGES OR INJURIES ARISING FROM OR RELATED TO THE CUSTOMER’S USE OF THE SERVICE.

The Customer shall indemnify, hold harmless, and defend SCALEDYNAMICS from and against all losses, expenses (including reasonable attorneys’ fees), damages, and liabilities awarded to a third party resulting from a claim by a third party arising from or in connection with the Customer Indemnity Responsibilities (as listed in Section 11.1) and/or with the Customer’s breach of Section 5 or Section 4.5 SCALEDYNAMICS agrees to give the Customer (a) prompt written notice of such claim; (b) sole authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as the Customer may reasonably request, at the Customer’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, the Customer shall not settle any third-party claim against SCALEDYNAMICS unless such settlement completely and forever releases SCALEDYNAMICS with respect thereto or unless SCALEDYNAMICS provides its prior written consent to such settlement. In any action for which the Customer provides defense on behalf of SCALEDYNAMICS, SCALEDYNAMICS may participate in such defense at its own expense by counsel of its choice.

The initial term of this Agreement commences on the Effective Date and continues for the period of time set forth in the Order Form or as detailed on SCALEDYNAMICS’ website or, if no such date is specified, for one (1) year as of the Effective Date (the “Initial Term”).

The Customer may terminate its use of the Service at any time by sending a termination request to SCALEDYNAMICS at sales@oxygenit.io. Such termination will be effective at the start of the next billing period.

Except as otherwise stated in the Order Form, at the end of the Initial Term (and each renewal term thereafter, if any), subject to payment of the applicable Fees for each such renewal term, this Agreement will automatically renew for additional successive terms equal to the Initial Term, unless either Party provides the other Party with notice of nonrenewal at least thirty (30) days prior to the end of the then-current term.

SCALEDYNAMICS may suspend the Customer’s right to access or use any portion or all of the Service immediately upon notice to the Customer, if SCALEDYNAMICS determines (a) the Customer’s use of the Service poses a security risk to the Service or any other customer or end user, and/or could adversely impact SCALEDYNAMICS systems, or the content of any other customer and end user, and/or could subject SCALEDYNAMICS to liability, and/ or could be fraudulent, (b) the Customer is in breach of this Agreement, (c) the Customer is in breach of its payment obligations under Section 7.

Any delay in payment mentioned above authorizes SCALEDYNAMICS, without formalities or prior notice, to suspend the Client's access to the Service until payment of the totality of the invoice, without prejudice to other possible actions that SCALEDYNAMICS could take because of the law or the present Agreement.

If SCALEDYNAMICS suspends the Customer right to access or use any portion or all of the Service (a) the Customer remains responsible for all Fees and charges that the Customer incurs during the period of suspension; and (b) the Customer will not be entitled to any support services (if such support agreement has been prior executed with SCALEDYNAMICS) for any period of suspension.

SCALEDYNAMICS will use commercially reasonable efforts to restore the Customer’s access to the Service promptly following resolution of the cause of such suspension.

In the absence of remediation by the Customer of a cause of suspension resulting from the Customer breach of this Agreement, SCALEDYNAMICS may terminate the Agreement in accordance with the provisions of Section 13.2.

This Agreement and all rights granted by SCALEDYNAMICS hereunder may be terminated by either Party if the other Party has breached any terms of this Agreement and fails to cure such breach within thirty (30) days of a non-breaching Party’s notice thereof.

Notwithstanding the foregoing, without prejudice to SCALEDYNAMICS’ other rights accorded to it by this Agreement or by law, SCALEDYNAMICS may immediately terminate the Agreement by written notice to the Customer, in the event of (i) breach of the provisions of Section 5, Section 4.1 or (ii) breach of this ALA, and such breach is not curable or (iii) if the Customer fails to pay the applicable Fees or charges as specified in the Order Form.

Upon expiration or termination of this Agreement for any reason whatsoever, the Customer’s rights to use the Service cease and the Customer shall:

- stop using the Service immediately;

Upon expiration or termination of the Agreement, the Customer is informed and acknowledges that:

- the Admin Account will be deleted;
- SCALEDYNAMICS will have no obligation to maintain the History Data and Customer Data in its databases or in the Service or to forward any such information to the Customer or any third party;
- SCALEDYNAMICS shall delete the Data History and Customer Data of the Customer from SCALEDYNAMICS’ systems following the effective date of termination, in accordance with SCALEDYNAMICS’ then-current standard procedures;

- The Customer is responsible for all Fees and charges that the Customer has incurred up to and including the date of termination.

If this Agreement is terminated by SCALEDYNAMICS in accordance with the Section 13.2 above, the Customer shall pay any unpaid Fees covering the remainder of the Initial term or any renewed term. In no event, will termination of this Agreement relieve the Customer of its obligation to pay any Fees payable to SCALEDYNAMICS for the period prior to the effective date of termination.

Upon expiration or termination of this Agreement, SCALEDYNAMICS may retain information and data about SCALEDYNAMICS Service execution and performance as long as it is in a form that does not personally identify the Customer, its employees or agents.

Any terms of this Agreement which by their nature should survive the termination of this ALA shall survive such termination. Termination will not limit any of SCALEDYNAMICS' rights or remedies at law.

Support services or Professional Services: Any Support Services or Professional Services (under the PSA) shall be automatically terminated pursuant to the expiration or termination of the Agreement.

The Customer represents and warrants that the Customer, authorized Affiliate or End-User is not located in or is a national of any country that is embargoed or highly restricted under export regulations or are otherwise an entity to whom SCALEDYNAMICS is legally prohibited to provide the Service.

The Customer represents and warrants that the Customer will not possess, use, import, export or resell (and shall not permit the possession, use, importation, exportation, or resale of) the Service or any information or technical data provided by SCALEDYNAMICS to the Customer under this Agreement in any manner which would cause SCALEDYNAMICS to breach any applicable export control laws, rules, or regulations of any jurisdiction. The Customer undertakes not to access and use the Service from locations where such access and/or use is illegal or prohibited.

SCALEDYNAMICS makes no representation that the Service is appropriate or available for use in location outside France.

The Customer acknowledges that the Service may be subject to European Union and, when applicable US export regulations. The Customer shall comply with applicable export and import laws and regulations for the jurisdiction in which the Service will be used. The Customer shall not provide access to the Service to any individual, entity or country prohibited by applicable law or regulation.

SCALEDYNAMICS may assign, or transfer this Agreement, or part thereof, and/or delegate, partially or totally, its rights and/or obligations hereunder, to any Affiliate or third party without consent from the Customer.

The Customer shall not rent, lease, lend, sub-license, assign, transfer, delegate, partially or totally, any of its rights and obligations under this Agreement (including its User Account), to any Customer’s Affiliate or third party without the prior written consent of SCALEDYNAMICS.

Any delay or non-performance of any provision of this Agreement caused by force majeure event, conditions beyond the reasonable control of the performing Party as defined by French case law, shall not constitute a breach of this Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the force majeure event preventing the performance.

If the case of force majeure continues for more than thirty (30) consecutive days, either Party may immediately terminate the Agreement by registered letter with acknowledgement of receipt, without entitling the other Party to any compensation.

If any portion of this ALA shall be held invalid, illegal or unenforceable, the validity, legality, and enforceability of the remainder of this ALA shall not in any way be affected or impaired thereby.

Nothing in this ALA will be construed as creating a joint venture, partnership or principal/agent relationship between the Parties.

Any translation of this ALA is done for local requirements and in the event of any inconsistencies between the English and non-English versions of the ALA, the English version of this ALA shall govern, to the extent not prohibited by local law in the jurisdiction of the Customer.

SCALEDYNAMICS reserves the right to change this ALA at any time and from time to time to reflect changes in the applicable laws, technical or security requirements, or the functionality of the Service. If SCALEDYNAMICS decides to change this ALA in the future, SCALEDYNAMICS will post an appropriate notice through the Service. Any non-material change (such as clarifications) to this ALA will become effective on the date the change is posted. Any material changes in the ALA will be notified by email to the Customer. The use of the Service shall be subject to the acceptance of the updated terms of the ALA by the Customer, within five (5) days from the date of the update notice. In the absence of such acceptance, the ALA and the Service shall be terminated in accordance with the provisions of Section 13.3 above. The date of the last update of this ALA is set out at the top of this document. The Customer acknowledges and agrees that the Customer’s continued use of the Service after the date of changes to this ALA indicates the Customer’s agreement to such changes.

If SCALEDYNAMICS does not exercise or enforce any legal right or remedy which is contained in the ALA (or which SCALEDYNAMICS has the benefit of under any applicable law), this will not be deemed a waiver of any such rights or remedies, and that those rights or remedies will still be available to SCALEDYNAMICS.

In the event of any conflict or inconsistency between the terms and conditions of this Agreement and any terms or conditions set forth in any purchase order or other document relating to the transactions contemplated by this Agreement, the terms and conditions set forth in this Agreement shall prevail unless otherwise expressly agreed by the Parties.

Without prejudice of the confidentiality provisions of Section 8, the Customer expressly consents to (i) the public release by SCALEDYNAMICS of marketing material making reference to this Agreement; the relationship between SCALEDYNAMICS and the Customer in respect of the Agreement and (ii) the use of the Customer’s company name, trade name and logo as commercial references (or customers list) on SCALEDYNAMICS’ websites and commercial documentation.

If any provision of the Agreement is held invalid or unenforceable by a court of competent jurisdiction, the invalid or unenforceable part or provision will be enforced to the maximum extent permissible by applicable law and the other provisions of this Agreement will remain in full force and effect.

The Customer shall not have the right to audit or inspect SCALEDYNAMICS’ internal systems, procedures, or documentation except as expressly required by applicable law or regulatory obligations. In the event such an audit is required by law and provided that the Customer’s audit request is demonstrable and based upon such applicable law or regulatory obligations, SCALEDYNAMICS reserves the right to:

- Require reasonable advance written notice, no less than ten (10) working days (in France) prior to the requested audit date;
- Limit the scope of the audit to information directly relevant to the Customer’s contractual obligations with SCALEDYNAMICS;
- Ensure that any audit is conducted during regular business hours, in a manner that minimizes disruption to SCALEDYNAMICS’ operations;
- Require that the audit be conducted by an independent third-party auditor, bound by a confidentiality obligation and subject to SCALEDYNAMICS’ prior written approval.
- Ensure that all costs and expenses associated with the audit shall be borne solely by the Customer, unless otherwise agreed in writing.

Furthermore, under no circumstances will the audit extend to any Confidential Information of SCALEDYNAMICS that is unrelated to the provision of the Service including, but not limited to, SCALEDYNAMICS’ trade secrets, proprietary technology, or internal financial data.

Subject to applicable regulatory obligations, SCALEDYNAMICS may make the required information available to the Customer’s auditor at its discretion in a dedicated space hosted in a secured dataroom.

Notwithstanding the above, in the event of an audit conducted on the Customer, and at the Customer’s request, SCALEDYNAMICS agrees to provide the approved third-party auditor with the sources of information relevant to the delivery of the Service to the Customer. Such information will be treated as Confidential Information and shall not be disclosed to the Customer or any other third party.

This Agreement is governed by the laws of FRANCE. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

Failing an amicable settlement, the Parties irrevocably agree that the competent court within the jurisdiction of the Court of appeal of Paris, FRANCE shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this ALA or its subject matter, formation or termination for any reason whatsoever (including non-contractual disputes or claims).

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