FRAMEWORK AGREEMENT « MACHINE TO MACHINE SERVICES »
PREAMBULE
Matooma offers outsourcing services for managing connected objects using public electronic communication networks. Thanks to its specific offer of multi-operator connectivity, it provides its customers with services allowing them to manage the connected objects and the consumption of these services, via a dedicated management portal.
As such, Matooma acts as an intermediary between professionals who use connected objects, manufacturers and operators of electronic communications.
Matooma is not an operator operating an electronic communications network or an electronic communications service provider to the public. It relies on the electronic communications networks and services of third-party operators and relies on the quality of these networks and services to provide its own services under this Framework Agreement.
The Customer has stated that its needs are typical and do not have any unusual requirements in the operation of connected objects, electronic communication, and access to the management portal. It acknowledges that the use of the services are not appropriate for connecting medical devices and for transmitting personal monitoring data, which may require higher levels of security and availability than the services offered by Matooma.
The security and availability levels of the Matooma services connections are similar to those of the electronic communications networks used by Matooma.
Matooma replied to the Customer's questions concerning the essential characteristics of its services, which are also described in the contract below.
The Customer has stated that he has carefully read and understood the terms of this Framework Agreement and the Implementation Agreement. It has decided to commit itself after having verified that the services and their supply methods meet its needs.
In this context, the Parties have come together to conclude this Framework Agreement and the Implementation Agreement.
THIS BEING STATED IT WAS ORDERED AND AGREED AS FOLLOWS:
ARTICLE 1 - DEFINITIONS
The following terms, the first letter of which is capitalised, have the meanings assigned to them in this article, whether they are used singularly or plurally:
ARTICLE 2 - PURPOSE
The purpose of the Framework Agreement is to set out the terms and conditions applicable to the performance of the Services by Matooma for the benefit of the Customer, in compliance with the provisions of the Implementation Agreement (s), and subject to the conditions in Article 3 "Eligibility".
The terms of the Framework Agreement do not in themselves constitute an order for Services or require the Customer to sign an Implementation Agreement.
The Services performed on behalf of the Customer, as well as their technical and financial terms, are specified in the Implementation Agreement (s).
The provisions of the Framework Agreement apply to all Implementation Agreements signed with the Customer during the term of the Framework Agreement.
Matooma acts as a service provider under the Framework Agreement.
ARTICLE 3 - ELIGIBILITY
It is expressly agreed between the Parties that Matooma cannot set up the Services in the event of technical impossibility, total or partial, in particular due to Operators or in the event of incompatibility of the Services with the Technical Environment.
ARTICLE 4 - SERVICES
4.1. Accessing and using the M2Mmanager
4.1.1. General Terms
M2Mmanager is protected by national laws and international treaties on copyright and industrial property. All intellectual property rights (patents, trademarks, copyrights, designs, database, etc.) and other rights such as those protecting know-how, concepts, trade secrets and investments, whether or not covered by privacy laws, and all copies, modifications, improvements, corrections, updates or new releases, are owned and reserved at all times by Matooma.
Matooma grants a personal, limited, non-transferable and non-exclusive license to use the M2Mmanager to the Customer to enable it to use it in accordance with the terms of this Framework Agreement.
4.1.2. Management of login details
The signing of this Framework Agreement results in an allocation of Identifiers to the Customer within forty-eight (48) business hours.
The Identifiers are strictly personal. The Customer and each User must guarantee the confidentiality and security of the Identifiers.
Entering the Identifiers is deemed a presumption of connection by the User to his Space. In this respect, the Customer is responsible for all the activities taking place from his Space. This presumption of identification of the User may be rejected by proof of any fact of action that is not attributable to the User, it being specified that a failure of the Customer to fulfill his obligation of confidentiality which thereby allows unauthorised use by a third party does not affect this presumption, and the Customer therefore remains liable.
After accessing his Space, the Customer must disconnect from it so that any unauthorised person can not access it without his authorisation.
4.1.3. Using the Space and the M2Mmanager
The User may, via the Space:
The Customer shall use the Space, and more broadly M2Mmanager, solely for its own internal and professional needs and within the limit of the maximum number of Users provided for in Annex 2 of the Implementation Agreement. Excludes any shared service or desktop service.
When using the Space, the Customer must comply with all applicable laws, rules and regulations, both national and international, including those relating to the protection of personal data.
The Customer shall:
The Customer must respect:
Any use not provided for herein is prohibited and, in particular, without limitation, the User shall not (nor authorize a third party):
Matooma makes every effort to avoid any disclosure of the Customer's data hosted on its space and to allow exclusive access to the Customer to such data.
In any case, Matooma assumes no liability nor guarantees for hosting, storage, backup and use of:
4.1.4. Technical Requirements of M2Mmanager
The Customer must have access to the Network in order to access and use M2Mmanager. In this respect, it must have the necessary equipment and software to do so.
In this respect, it must have the appropriate equipment and software as well as sufficiently qualified personnel to allow access and use of the Networks and the M2Mmanager.
The Customer is responsible for the choice, installation, configuration, maintenance and payment of said equipment and software, as well as the electricity costs and Electronic Communications related to their use.
The Customer shall ensure that the Electronic Communications are not used:
a. For the transmission of illegal material (information that is transmitted in violation of the Applicable Law) or material which, even if not in violation of Applicable Law, contravenes or hinders the protection of minors, which incites or apologises for hatred on grounds of race, sex, religion or nationality, or which incites or apologises for violations of human dignity concerning individual persons;
b. For the transmission of material that contains software viruses or any other disabling or damaging programs;
c. In any way which impairs or damages the Networks or the provision of the Services in a way that would interfere with other users’ use of the Networks or of the M2M Platform;
d. In a way which involves SIMs being included in (fixed) GSM adapters; or
e. Fraudulently or illegally or in violation of this Agreement
4.2. Assistance
Within the framework of the Assistance, the Customer transmits the Declaration of Anomaly (ies) to the dedicated support team via:
The support is available from Monday to Friday from 9:00 to 18:00.
The Declaration of Anomaly must be brought to the attention of Matooma as soon as possible after the occurrence of each of the Anomalies concerned so that Matooma can remedy it within the time limits agreed by the Agreement. The periods indicated in the Agreement are mandatory, unless expressly stipulated otherwise.
4.3. Maintenance of the M2Mmanager
Matooma expressly reserves the right to correct any malfunctioning of the M2Mmanager but also the right to adapt, modify and make improvements without notice to facilitate its use in accordance with its purpose. These rights are exercised without any obligation of information or notification, without prejudice to the other provisions herein.
Access to the Space and / or the M2Mmanager may be temporarily unavailable due to maintenance operations (updating, improvement, evolution of the content, etc.) and / or technical constraints linked in particular to the specificities of the internet .
Matooma will use its best efforts to make the Space and / or M2Mmanager available again as soon as possible.
The Customer acknowledges and accepts that the aforementioned periods of unavailability are necessary for the permanent operation of the Space and the M2Mmanager and / or are imposed by technical constraints over which Matooma has no control. Consequently, the Customer may not, in respect of these periods of unavailability, seek to hold Matooma liable or claim any compensation whatsoever from Matooma.
Any adaptations required specifically by the Customer and / or the transition to new versions of the M2Mmanager are excluded from maintenance operations. Obtaining these options and / or new versions is subject to additional invoicing.
It is specified that any interruption of access to the M2Mmanager does not affect the operation of SIM Cards and Communicating Terminals.
ARTICLE 5 – DURATION OF THIS AGREEMENT
5.1. Framework Agreement
This Framework Agreement shall take effect on the date of the last signature for an indefinite period.
5.2. Implementation Agreement
The Framework Agreement must be in force in order to put in place an Implementation Agreement.
In the event of termination of the Framework Agreement, the Implementation Agreement shall remain in force until its expiry or termination.
ARTICLE 6 – FINANCE PROCEDURES
6.1. Tariffs
Services are provided at prevailing rates. The prices are expressed in Euros both before tax (HT) and with tax included (TTC).
6.2. Billing arrangements
Invoices are created by Matooma on a monthly basis and are sent to the Customer in electronic format, unless otherwise stated. They are also available on the M2Mmanager.
6.3. Payment terms for invoices
The Customer shall pay Matooma for the Services within ten (10) calendar days of receipt of the related invoice.
After this date, the various expenses that may result from an unpaid or a partial payment are the responsibility of the Customer, unless there are legal provisions or regulations to the contrary, without prejudice to the other provisions relating to the late payments.
In the case of direct debit, payment will be taken on the date indicated on the invoice.
The Customer is obliged to inform Matooma of any changes to its bank details one week before they become effective.
In the event of late payment, the Customer shall be liable to Matooma, on a strict liability basis, for the amount of interest applied to the outstanding amount, at an annual rate equal to 20%. Interest is calculated on the amount owing from the time when payment becomes due, to when payment is actually received by Matooma.
Pursuant to Articles L. 441-6 and D. 441-5 of the French Commercial Code, any delay in payment automatically entails, in addition to penalties for late payment, an obligation for the Customer to pay a lump sum indemnity of € 40 for recovery. A supplementary amount may be claimed by Matooma on receipt of late payments where the recovery costs incurred are greater than the amount of the flat-rate allowance.
Any price reduction of the Services, as referred to in Article 1223 of the Civil Code, must necessarily take place by mutual agreement between the Parties and can not result from the decision of a single Party.
The provisions of Article 1228 of the Civil Code allowing the judge to grant time limits in the event of non-performance by the debtor can not be applied in case of default of payment.
ARTICLE 7 - COLLABORATION BETWEEN THE PARTIES
As this Agreement requires close and regular collaboration between the Parties, the Customer must make available to Matooma all information and documents in its possession that Matooma may require in connection with the performance of the Services.
In the absence of reservations expressly given by the Customer upon receipt of the Services, these are deemed to be conform with the order, both in quantity and quality. The Customer has a period of 48 working hours from the activation of the Services to issue, in writing, any reservations (with all relevant supporting documents) to Matooma.
Matooma shall deal with such reservations as soon as possible and at its expense. In the event that the non-conformity which gave rise to the submission of a reservation by the Customer cannot be attributed to Matooma, it will be deemed to result from an issue with the Technical Environment, for which Matooma cannot be held liable.
ARTICLE 8 – GARANTIES FROM MATOOMA
Matooma guarantees :
Matooma does not guarantee :
Customer acknowledges and agrees that:
As a result, Matooma cannot guarantee the reliability of transmissions, access time, display times, absence of network interruptions and / or restrictions, data loss cases, display errors, and in general, the technical performance of access to the M2Mmanager related to the Networks.
ARTICLE 9 – CUSTOMER OBLIGATIONS
Where the Customer gives access to his own data and / or software via the Internet, he shall take all appropriate measures in order to maintain availability, integrity and confidentiality, in particular by protecting them from contamination from possible viruses.
The Customer shall:
The Customer will indemnify and hold harmless Matooma against any and all claims, claims and suits that may be brought by the Customer’s contracting parties or any third party on any basis whatsoever in connection with its use of the Services. In this respect, the Customer shall indemnify Matooma for costs and damages imposed against it.
This provision is without prejudice to Matooma's right to terminate the Implementation Agreement and / or the Application Agreement (s) or to seek redress for any prejudice.
ARTICLE 10 - LIABILITIES
Matooma is under an obligation of means to provide the Services requested by the Customer, unless expressly provided otherwise.
To the fullest extent permitted by Applicable Law, the limitations and exclusions of liability set forth herein apply regardless of the basis of liability.
Matooma can not be held responsible for:
Matooma is liable for direct personal damages of the Customer, certain and proven to be attributable to it within the following limits:
Matooma negates and disclaims any liability for any use of the Services after the termination of the Framework Agreement.
Matooma may not be held liable for any disputes arising out of the Agreement between the Customer and third parties.
Any failure by the Customer to honor its obligations referred to in Article 9 "Customer Obligations" may engage its liability towards Matooma.
If the Customer uses the Services for the purpose of processing personal data, it must:
Matooma shall use all reasonable technical means to ensure the security and confidentiality of the Customer's data.
ARTICLE 11 - SUSPENSION OF SERVICES
Matooma reserves the right to suspend the Services in whole or in part:
The Customer shall be notified of any suspension by Matooma using any means, as soon as practicable.
In the cases referred to in this article, the Customer remains obliged to the obligations of the article "Obligations of the Customer".
The reinstatement of the Services results in the invoicing of "return to service" charges.
In addition, Matooma may also require the Customer to provide any new warranty that it may deem useful.
In the event that the Customer fails to fulfill its obligations within twenty (20) working days of receipt of the formal notice to correct the default, unless the shorter period indicated in the letter of formal notice , Matooma may terminate the Agreement in whole or in part, in accordance with article 12 "Termination".
ARTICLE 12 - TERMINATION
12.1. Termination of the Framework Agreement
12.1.1. Strict liability termination for breach of terms
In the event of Abnormal Use by the Customer, Matooma may terminate the Framework Agreement immediately without notice to the Customer.
In the event of non-performance by the Customer of its obligation to pay an invoice for the Services under the Framework Agreement or an Implementation Agreement, and that such failure to pay continues for a period of eight (8) calendar days following a formal notice sent by registered letter with acknowledgment of receipt to the Customer, Matooma may automatically terminate the Framework Agreement and any related Implementation Agreements.
A termination of this Framework in accordance with this section is without prejudice to any damages that Matooma may claim as a result of any breaches by the Customer.
12.1.2. Termination for convenience
Throughout the term of the Framework Agreement, each Party may terminate the Framework Agreement at any time, in advance and without compensation, subject to two (2) months' written notice.
Each Party may cancel its request for termination of the Framework Agreement by written notice to the other Party. However, this cancellation can not take place in the 24-hour period preceding the effective termination date. From the time the notice is sent to the date the Framework Agreement is cancelled, the Customer remains liable for sums due in respect of the Services.
12.2. Termination of Implementation Agreements
12.2.1. Strict liability termination for breach of terms
In the event of abnormal use, default or non-compliance with the terms of an Implementation Agreement applicable to one of the Parties, the other Party shall give notice to the other party by registered letter with acknowledgment of receipt to remedy it within an agreed period, or within the period indicated in the letter of formal notice which shall not be more than thirty (30) working days and not less than five (5) working days.
If the object of the notice is not resolved within the prescribed period, the Implementation Agreement may be terminated by the notifying Party without further notice and without prejudice to any damages and interest to which the notifying Party may be entitled by virtue of the breach.
If the consequences of the breach of one of the Parties are manifestly irreparable, the other Party may terminate the Implementation Agreement without prior notice by registered letter with acknowledgment of receipt.
12.2.2. Termination for Convenience
Throughout the term of an Implementation Agreement for an indefinite period, the Customer may cancel said Implementation Agreement at any time, in advance and without compensation, subject to two (2) month’s prior notice.
Any notice given under this Article, giving notice of any breach, shall indicate that, in the absence of a determination of the breaches found, the Agreement shall be terminated in accordance with the provisions of Article 12 thereof.
12.3. Effects of the termination
In the event of termination of the Framework Agreement, any related existing Implementation Agreements shall continue to run until their term expires and the Framework Agreement shall continue to apply during the lifetime of any related Implementation Agreements.
Early termination of an Implementation Agreement will not trigger the automatic termination of the Framework Agreement.
In the event of termination for convenience, Matooma shall cooperate with Customer to terminate all or part of the Framework Agreement and / or Implementation Agreement in the most coordinated manner possible, without interruption of service up to the effective termination of the Services.
Upon termination of the Implementation Agreement, Matooma shall make a final audit of the Services performed between them and shall determine the value of any outstanding payments resulting from such audit within one month of the date of termination.
Termination of the Agreement in whole or in part shall not in any way release the Parties from any obligations arising prior to such termination and shall not terminate the provisions of the Agreement which by their nature shall survive.
12.4. Collective process
In the event that a collective lawsuit is brought against the Customer, Matooma may terminate the Agreement:
ARTICLE 13 - FORCE MAJEURE
Access to the Services may be suspended in the event of a case of force majeure.
The following are to be understood as cases of force majeure, all facts or circumstances which are unstoppable and beyond the control of the Party invoking it, including but not limited to:
In the event of force majeure, the Agreement may be terminated by the party availing itself of it with immediate effect, without the other party being entitled to any indemnity.
ARTICLE 14 – APPLICABLE LAW AND COMPETENT JURISDICTION
The Framework Agreement is subject to French law.
Any dispute relating to the Framework Agreement and its consequences, in particular as to its interpretation, execution or termination, shall be submitted to the Commercial Court within the jurisdiction of Matooma's registered office, which is expressly granted jurisdiction notwithstanding plurality of defendants, appeal on guarantee, including on request or emergency procedures.
ARTICLE 15 - GENERAL TERMS
15.1. Communications / Notifications
The exchange of documents and notifications between the Parties shall be effected at the respective headquarters of the Parties or at such other address as the Parties may designate on a case-by-case basis. Notifications by registered letter with acknowledgment of receipt shall be effective on the date of receipt of the registered letter, and at the latest three calendar days after posting.
15.2. Modifications / Indivisibility
The Agreement represents the entire agreement of the Parties and supersedes all previous communications, contracts and undertakings relating to the subject matter hereof, except as regards to any confidentiality agreement previously signed between the Parties.
No-one may amend, modify or waive any provision of the Agreement in the absence of a written document signed by both Parties.
15.3. Unavailability / Assignment of the Framework Agreement
All or part of the rights and obligations arising from this Framework Agreement cannot be transferred or assigned by the Customer to a third party without the prior and express written consent of Matooma.
Notwithstanding the foregoing, Customer shall have the option to request the assignment of the Subscription originally entered into between Matooma and the Operator in any situation where Matooma's ability to perform its contractual obligations is clearly compromised, such as in the event of a total or partial cessation of activity, or in the event of the commencement of a judicial administration or judicial liquidation procedure).
15.4. Publicity
The Customer authorises Matooma to present it to the public as a user of the Services.
The Customer acknowledges and agrees that Matooma (including its subsidiaries and partners) may list its company name, logo and description of its activity as a reference in a customer list which may be disseminated for purposes of prospecting and promotion both internally and externally, by all means and in particular within any communication services to the public by paper or electronic means.
15.5. Independance of the Parties
The Customer must use the Services in the course of its professional activity. It operates as an independent trader, both vis-à-vis Matooma, as well as its own customers.
As such, the Customer must not make any commitment in the name and / or on behalf of Matooma, without having obtained its formal, written and prior agreement.
The Customer must take out civil liability insurance for the duration of the Agreement to cover any damage resulting from its use of the Services and must provide a certificate to Matooma upon request.
15.6. Scope of the clauses
Should any part or all of any provision of this Framework Agreement be deemed void and of no effect, the Parties shall endeavor within a period of two (2) months from the date of the judicial decision to reach agreement on the terms of a clause or part of an equitable clause that could replace the one that has been declared null and void.
In the absence of a signature by the Parties of an amendment to this Framework Agreement, after the expiry of this period of two (2) months, the purpose of which is to remove the clause or part of a clause deemed void, while maintaining as far as possible the present purpose and meaning of the Framework Agreement, the clause shall be deemed null and void without prejudice to the other clauses of this Framework Agreement.
15.7. No waiver
Failure to exercise or delay in exercising the rights provided for in the Framework Agreement shall in no case constitute a waiver of the exercise of these rights or a waiver of any other right.
15.8. Change of circumstances
In the event of a change in the economics of this Framework Agreement which would prevent either Party from applying or giving effect to any of its obligations, the Party concerned shall notify the other without delay. The Parties shall thereafter agree to replace the provisions of the Framework Agreement which shall be unenforceable by provisions as close as possible thereto so that the Framework Agreement shall, to the fullest extent possible, continue without interruption.
15.9. Interpretation
This Framework Agreement shall be interpreted in accordance with the following principles:
15.10. Use of electronic communications
The Parties agree that they will carry out numerous exchanges of communications in electronic form.
Having regard in particular to these practices and the existence of the principle of equivalence between electronic and paper documents established by the legislature, they agree not to call into question the reliability of any document, information or exchange, for the sole reason that it is via electronic means.
The Parties waive the requirement for proof of original paper-based documents. However, this presumption of reliability of electronic documents can be countered by the demonstration of unreliability, in particular as a result of proven errors.
It is specified that the requirement of plurality of originals is deemed to be satisfied by the use of any electronic signature process via the Docusign platform which allows each Party to have a copy on file and to have access to it, which each of them recognises.
15.11. Provisions of Articles 1127-1 and 1127-2 of the Civil Code
The Parties agree that the application of Articles 1127-1 and 1127-2 of the Civil Code to this Agreement is expressly rejected.
IMPLEMENTATION AGREEMENT «MACHINE TO MACHINE CONNECTIVITY»
In application of the Framework Agreement " MACHINE TO MACHINE SERVICES" whose terms apply to this agreement (hereinafter the "Implementation Agreement").
Capitalised terms and expressions expressly defined in this Application Agreement shall have the meanings given to them in the relevant section or paragraph where these terms and expressions are used for the first time.
Terms and / or expressions beginning with a capital letter and not expressly defined in the article or paragraph where the term and / or expression are used for the first time will, depending on the context, have the meaning ascribed to them in the Framework Agreement.
ARTICLE 1 - PURPOSE
The purpose of this Implementation Agreement (the “Agreement”) is to specify the terms and conditions for the provision of the Services defined in Article 2 "Provision of SIM Cards and Subscriptions" for the benefit of the Customer.
ARTICLE 2 - PROVISION OF SIM CARDS AND SUBSCRIPTIONS
2.1. Ordering SIM cards
Matooma must process the Customer's SIM card orders.
Orders are placed via an e-form accessible on the M2Mmanager. In case of temporary unavailability of the M2Mmanager, the order can be sent by email to - command@matooma.com. The order email should then specify:
Matooma will acknowledge receipt of this order by email within two (2) working days from its receipt.
If the order concerns less than one thousand (1000) SIM cards, Matooma will send them within three (3) working days from the date the confirmation email is sent.
In the event that the delivery of the SIM cards can not be ensured, Matooma must inform the Customer of the number of SIM cards or the type of SIM cards (substitute SIM cards) that can be delivered to it. This information shall be communicated by e-mail within three (3) working days of the issue of the aforesaid acknowledgment of receipt.
Where this is the case, the Customer can cancel the order by return email within three (3) working days. Failing this, the partial delivery is deemed accepted by the Customer.
In any case, the delivery of SIM cards can only take place if the Customer is up to date with all of its obligations to Matooma.
2.2. Use of SIM cards
2.2.1. General terms
The ready-to-use SIM card provided to the Customer by Matooma, allows for the sending and receiving of both national (in metropolitan France) and international data communications.
The SIM card, placed under the control of the Customer, remains the exclusive, nontransferable and sole property of the Operator who can replace it at any time:
The Customer is solely responsible for the use and retention of the SIM card and must ensure that its use conforms to the terms of this Agreement.
2.2.2. Prohibited uses
Except as otherwise expressly agreed by Matooma, Customer shall not:
Any fraudulent use of the SIM Card and / or contrary to this Agreement will be the Customer's sole responsibility.
The Customer agrees to defend, at its own expense, to indemnify and hold harmless Matooma against any claim from a third party based on misuse use of the SIM Card for which it is either directly or indirectly responsible and any legal action resulting from its use of the Matoowan.
2.2.3. In case of loss / theft
In the event of loss or theft of the SIM card, the Customer must:
The Customer is solely responsible for the use of the SIM cards that have been placed under its control and for the payment of all communications made before they are taken out of service, without exception.
The liability of the Customer for the period between the loss or theft and the deactivation of the SIM card,, is removed as of the date of reception by Matooma of the notification by email.
In the event of a dispute as to the deactivation date, it shall be deemed to have been effected on the date of receipt by Matooma of the e-mail notification referred to above.
The Customer also has the option of submitting a request to disable a SIM card via M2Mmanager, at which point any billing relating to the SIM card ceases.
In the event of deactivation under the aforementioned conditions, subscription fees and any Services will not be invoiced.
Matooma cannot be held responsible for the consequences of intemperate objections of any kind.
Matooma cannot be held responsible for the consequences of a request to deactivate a SIM card that is incorrect or does not emanate from the Customer.
The reinstatement of the Services following issuance by Matooma of a new SIM card following a theft or a loss gives rise to the invoicing of the activation of the new SIM card according to the conditions set out in Appendix 1 of the Commercial Offer.
2.2.4. Suspension of Service by the Customer
The Customer may suspend, for any reason whatsoever, the Service of one or more Subscriptions via the M2Mmanager for an indefinite period.
The Customer may either terminate the suspended Subscription(s) in accordance with the terms and conditions of Article 6 of this Agreement or proceed to the restoration of the Service of all or part of the Suspended Subscriptions via the M2Mmanager. The reinstatement of the Services subscribed after suspension shall give rise to the invoicing of a return to service charge for each Subscription.
The Customer shall pay all amounts invoiced in respect of his Suspended Subscriptions as well as those relating to the Services and / or options that may have been subscribed to during the suspension period.
2.2.5. Effective Date of Subscription
This Agreement shall take effect upon the date of its signature.
However, only the activation of the SIM cards by the Customer, which is left to his / her sole discretion, will commence the billing of the Subscription in accordance with the provisions of Article 4.1.
ARTICLE 3 - DURATION
This Agreement is concluded for an indefinite period, starting from the date of the last signature, unless otherwise specified in Appendix 1 of the Commercial Offer.
However, Subscriptions are accepted for a minimum and irrevocable period of one (1) month from the activation of the SIM Card (the "Minimum Period").
ARTICLE 4 - FINANCIAL PROCEDURES
4.1. Tariffs
As soon as a SIM card is activated, the first invoice is created by adding together the entire subscription activation month and the following month. However, any month during which a SIM card is deactivated is not invoiced to the Customer.
The Customer is reminded that is responsible for the payment of any extra charges invoiced by the Operator, whatever their nature:
For Services invoiced by reference to a pre-determined duration, their invoices are due in full at the beginning of the pre-determined duration.
4.2. Meter pricing
Subscription pricing can be determined on the basis of the data usage of the Communicating Terminal to the meter, that is to say according to the actual data usage of the Communicating Terminal.
4.3. Profile Pricing
Subscription pricing can also be determined on the basis of one or more pre-determined monthly consumption profiles of the Communicating Terminal (hereinafter referred to as the "Profile (s)") in Annex 1 of the Commercial Offer.
A Profile defines, for a Subscription, a monthly consumption ceiling per type of Electronic Communication (hereinafter the "Ceiling").
All Ceilings under the same Profile in respect of Subscriptions subscribed by the Customer to the same Operator are accumulated in order to constitute the overall monthly consumption ceiling for a specific Profile of the Customer with the said Operator (hereinafter referred to as the "Ceiling by Profile and Operator ").
The Ceiling by Profile and Operator is therefore constituted, for each type of Electronic Communications, of the Ceiling multiplied by the number of Subscriptions with the same Profile and Operator.
Thus, the Customer benefits from a monthly pooling of all the consumption of subscriptions with the same profile with the same Operator. Consequently, for the same Operator, the monthly consumption of Subscriptions below the Ceiling will not be the subject of any additional costs for the Customer.
In the case of monthly subscriptions of Subscriptions with an identical Profile subscribed to the same Operator exceeding the Ceiling of a Profile and Operator (hereinafter referred to as the "Excess"), the Customer will be invoiced for the Excess as set out in Annex 1 of the Commercial Offer.
Example :
1. Subscription Profile – Type 1
2. Subscription Profile – Type 2
3. Number of Subscriptions subscribed by the Customer
Total : 6 Subscriptions split as following by Operator
4. Ceiling per Profile and Operator
5. Example of Actual Monthly Consumption of Subscriptions and Sharing on SMS
ARTICLE 5 - RESPONSABILITY
Matooma must use its best efforts to deliver the SIM Cards to the Customer within the agreed time.
However, if after eight (8) working days after the agreed delivery date, the SIM cards have not been delivered for any reason other than force majeure or due to the fault of the Customer, the order can be retracted at the Customer's written request.
The monies paid by the Customer to Matooma will then be returned to him without delay, excluding any compensation or deduction.
ARTICLE 6 - TERMINATION OF THE IMPLEMENTATION AGREEMENT
Once the Minimum Period of this Agreement has expired, the Customer has the right to cancel the Subscription concerned, via the M2Mmanager, with a minimum of two (2) business days notice.
Upon termination of this Agreement, Customer shall pay to Matooma, in addition to any sums due on the day of termination, an amount equal to the total amount of Subscription Fees due for the Minimum Period.
If the Customer unilaterally wishes to effect an early termination during the Minimum Period, he will have to pay an amount equal to the amount of the fees of the current Subscription remaining until the expiry of the Minimum Period. In such event, the termination may take effect at the end of the Minimum Period.
IMPLEMENTATION AGREEMENT « MATOOWAN »
In application of the Framework Agreement “MACHINE TO MACHINE SERVICES” the capitalised terms of which apply to this Implementation Agreement.
ARTICLE 1 - DEFINITIONS
ARTICLE 2 - PURPOSE
The purpose of the Implementation Agreement is to specify the terms and conditions for the provision of the services as defined in Article 3 (the "Services") in consideration for the proper performance of the Customer's obligations.
The Customer acknowledges that to provide the Services, Matooma:
ARTICLE 3 - SERVICES
The Services are designed to allow the Customer to benefit from:
ARTICLE 4 – ACCESS AND USE OF MATOOWAN
4.1. Effective start date of Subscription
The Subscription takes effect from the date of the receipt of the Connection referred to in Article 5. Only the signature by the Customer of the notice of receipt allow s for the start of the Subscription invoicing.
4.2. Access and use of Matoowan
The Customer must choose between a dedicated APN and a shared APN.
ARTICLE 5 - ASSISTANCE WITH CONNECTION
5.1. General Terms
Matooma will assist the Customer during the implementation of the Connection.
Within the framework of this assistance, Matooma will allocate a team of competent technicians to the Customer justifying the competence and the level of experience necessary.
Within this team, Matooma will designate a single point of contact for the Customer who is responsible for preparing progress reports at each stage of the Connection and for sending them to the Customer in good time.
5.2. Preparation phase
Before proceeding with the Connection, Matooma will send the Customer a Technical Environment questionnaire.
The Customer must provide Matooma with accurate, up-to-date and relevant information via this questionnaire and express it in a legible and intelligible manner.
Matooma cannot be held responsible for any incident or error resulting from the use of data that is inaccurate, irrelevant or expressed in an illegible or unintelligible manner by the Customer in the questionnaire.
5.3. Method of Connection
The connection will be scheduled within a period of five (5) days from the receipt by Matooma of the completed questionnaire mentioned in 5.2 above.
5.4. Connection formula
The formula consists of validating:
The formula is formalised by the signing of a declaration of active Connection by the Parties.
In the event of reservations preventing the receipt of the declaration, Matooma has fifteen (15) days from the issue of the reservations to make the necessary corrections. The withdrawal of the reservations is equivalent to confirmation of the Connection and the related services by the Customer.
ARTICLE 6 - SUPPORT
6.1. General Terms
The management of Incidents, in particular the response and resolution timeframes as well as the escalation mechanism for technical research, which is described in detail in Annex1of the Commercial Offer.
Matooma shall allocate appropriate resources to resolve any Incidents in accordance with the time limits referred to in this Implementation Agreement according to the level assigned to the Incident by Matooma.
6.1.1. SLA standard option
The Customer must submit, during the Opening Hours, their Incident Declarations in the Tool via the M2Manager.
Incident Declarations transmitted to Matooma (notably by e-mail) without going through the Tool will not be recognised by Matooma.
6.1.2. SLA Premium option
The Customer benefits from Premium Opening Hours, i.e. 24 hours a day, 7 days a week except May 1. During periods of emergency (from 6 pm to 9 am Central European Time), Incidents must be reported by telephone only to the following number: +33 4 11 95 08 63.
The Incident Declaration must be made via the questionnaire during the time pf the Connection and the Customer must ensure the update of its login details.
6.2. Use of the Tool
In the event of an Incident, the Customer must declare it to Matooma by making an Incident Declaration via the Tool.
The Customer can keep track of the Incidents it has recorded via the Tool, accessible at any time
In its Incident Declaration, the Customer must provide all relevant information to enable Matooma to identify the priority level of the Incident and make a diagnosis.
Upon receipt of the Incident Declaration, Matooma may request further information which must be provided by the Customer as soon as possible to enable the Incident Declaration to be finalised.
6.3. Incident priority level
When Matooma receives notification of an Incident Statement issued by the Customer, it assigns the Incident a level according to the following criteria:
Matooma diagnoses that the Incident is related to Matoowan's connectivity settings.
Matooma diagnoses that the Incident is related to the Matoowan's infrastructure or the Customer's VPN.
Matooma diagnoses that the Incident is linked to the Supplier's infrastructure.
6.4. Response and Resolution times
The response and resolution times below are counted only during Opening Hours for Standard SLAs and Premium Premium SLAs.
6.4.1. Response times
Response times must be calculated from the time of receipt by Matooma of a properly completed Incident Declaration sent via the Tool. In the event that Matooma requests additional information, the time counted towards the response time will be paused as from the time said request is sent and will begin to run once said information has been received by Matooma.
Matooma will use its best efforts to meet the following response times:
These response times result from the policy of escalation of technical research carried out by Matooma as set out in Annex 1 of the Commercial Offer.
Each Incident is first analysed at Level 1. If there is no resolution possible at Level 1, the Incident passes to Level 2 and in the absence of a resolution at Level 2, the Incident changes to Level 3.
Thus, Matooma transfers each Incident Declaration to a higher technical level if the Incident is not resolved at the level of qualification at which it is analyzed.
6.4.2. Resolution times
The deadlines expressed in this article must be calculated from the receipt by Matooma of a completed Incident Declaration sent via the Tool.
Matooma will use its best efforts to meet the following resolution deadlines.
For Incidents of:
Customers who have chosen Premium SLAs benefit from the mandatory resolution deadlines for Levels 1 and 2, not just indicative time frames.
Incident Level 3 deadlines are set only by the Supplier concerned.
Matooma can not guarantee resolution times. Matooma keeps the Customer regularly informed of the inspections carried out by the Supplier on its infrastructure.
6.5. Scope of support
Matooma reserves the right to refuse to provide Support in cases where the Incident would arise from:
Matoowan performance issues that have been identified by the Parties as a result of an inadequate Technical Environment are not covered by the Support.
ARTICLE 7 – AVAILABILITY COMMITMENTS AND SLA
Matooma will use their best efforts to ensure a monthly availability level of 99% for Matoowan accessibility to the Network, i.e. the availability of the Matoowan component chain to start a connection.
Availability is defined as the Customer’s ability to transmit its data from the Communicating Terminal to the Customer's Technical Environment.
After each Incident, Matooma will draw up a time-stamped report of all the actions carried out by Matooma with the availability levels and send it to the Customer by e-mail.
7.1. SLA standard
In the event of non-compliance with these availability commitments, the penalties due shall be calculated in accordance with the following conditions:
|
Level of availability |
Penalties |
|
99≤ SLA <100 |
0% |
|
98≤ SLA <99 |
5% |
|
SLA <98 |
10% |
7.2. Premium SLA
In consideration for the payment of the sums referred to in Article 9, the Customer may benefit from a higher level of commitment from Matooma - the Premium SLA.
In the event of non-compliance with availability commitments, penalties will be due by Matooma and shall be calculated in accordance with the following terms and conditions:
|
Level of availability |
Penalties |
|
99≤ SLA <100 |
0% |
|
98≤ SLA <99 |
10% |
|
SLA <98 |
15% |
7.3. Penalty system
The amount of any penalty is calculated on the basis of the availability rate recorded over a calendar month.
The cumulative number of minutes for which the availability rate is less than the contractual level during the duration of the Incident (s) serves as the basis for settling the penalty system.
The basis of the penalties is the amount of the invoice corresponding to the month concerned by the calculation of the availability rate (Subscription access to the service excluding Premium SLA).
For each applicable month considered, the amount of the penalty is applied to the Subscription value of the month n + 1 in the form of a credit.
Customer acknowledges that the Services are provided in accordance with the availability levels set forth in this Implementation Agreement; Incidents encountered in the provision of the Services do not absolve the Customer from full payment of invoices due for Services, with the sole exception being the compensation for any penalties owed by Matooma in accordance with Article 7 of the Implementation Agreement.
These penalties are intended to offset and repair direct damages caused by the unavailability of the Services; no other damages, compensations or penalties can be owed by Matooma in respect of such.
ARTICLE 8 - DURATION
The Implementation Agreement is concluded for an indefinite period with a minimum period of 12 months and during this time is irrevocable, starting from the signature of the minutes of receipt of the Connection.
After the minimum period of 12 months, this Implementation Agreement may be terminated by either Party with three (3) months' notice.
ARTICLE 9 – FINANCIAL PROCEDURES
9.1. Connection tariff
In return for the Connection, the Customer must pay Matooma a fixed sum as defined in Annex 1 of the Commercial Offer.
If the Customer chooses a dedicated APN, a fixed sum of 2 000 euros HT is required for the creation of any new Connection.
9.2. Subscription tariff
In consideration for the Subscription, the Customer must pay Matooma a monthly lump sum as defined in Annex 1 of the Commercial Offer.
Payment of the Subscription entitles the Customer to Standard SLAs.
The Customer may opt for Premium SLAs in return for the payment of a monthly sum as defined in Annex 1 of the Commercial Offer in addition to the price of the Subscription.
ARTICLE 10 - GUARANTEES
10.1. Guarantees granted by Matooma
Matooma does not guarantee continuous operation of Matoowan or a service free from Incidents.
Matooma only guarantees the security and confidentiality of the Core Network.
The Customer agrees that Matooma cannot be held to guarantee more than what is granted by the Suppliers, in particular in case of:
The Customer acknowledges that it is the Supplier's responsibility to implement physical and logical security measures to protect the Technical Environment and accessible hardware and software.
The Customer acknowledges that the characteristics and constraints of the Networks do not allow Matooma to guarantee the availability and integrity of data transmissions.
10.2. Guarantees granted by the Customer
The Customer warrants that it has the necessary skills, hardware and software required to use the Matoowan.
The Customer agrees to defend, at its own expense, to indemnify and hold harmless Matooma against any claim from a third party based on a legal or factual circumstance for which it is either directly or indirectly responsible and any legal action resulting from its use of the Matoowan.
Customer agrees to defend, at its own expense, indemnify and hold harmless Matooma and the directors, officers and employees (collectively, the “Matooma Indemnitees”), from and against all claims, suits or damages or expenses asserted against or (each an “Action”) incurred by any of the Matooma Indemnitees directly resulting from Customer’s use of Services in a way that requires uninterrupted availability of the Networks and where interruption of a Network causes death, personal injury, physical injury or property damage.
Last update of the document : 01/06/2018