The below “Terms and Conditions” define the conditions under which B.W.I., a French simplified joint stock company (SAS) with a capital of 4 152 000 euros, whose registered office is located at 8 impasse Boudeville, 31100 Toulouse, France, registered under number 914 969 019 RCS Toulouse (“BWI”), provides Services to Client.
“Agreement” means the contractual package consisting of these General Terms and Conditions and any Order.
“Confidential Information” means any document or information of any nature whatsoever, including commercial, financial, structural, or technical information, or other information, that one Party discloses to the other Party in connection with the Agreement, and which is identified as confidential or which should normally, given the circumstances, be considered confidential.
“Client” means the client company party to the Agreement.
“Contractor” means a subcontractor or independent consultant who is not a competitor of BWI.
“Effective Date” means the date of the last signature on the Order.
“Fees” means the fees payable by the Client under the Agreement.
“Order” means a purchase order, quotation, or any other written or electronic document used to order the Services and referring to these Terms and Conditions. Once signed by the Parties, each Order is subject to these Terms and Conditions.
“Party(ies)” means BWI and/or the Client, depending on the context.
“Platform” means the BWI user interface used to access and administer the Services and which the Client can access via the web.
“Services” means the SaaS solution published by BWI that enables its customers to digitize their basins by deploying virtual stations to monitor and anticipate changes in various freshwater parameters, such as river flow, flow duration, water levels, volumes, and water quality. The Services include the provision of BWI’s Platform and application programming interfaces (APIs). The Services provided to the Client are described in the Order.
“User” means an employee or Contractor of the Client authorized to access the Services.
2.1. Access to Services. Subject to the Client’s compliance with the terms of the Agreement, BWI grants the Client a limited, non-exclusive, non-transferable, and non-sublicensable right to allow Users to access and use the Services, during the Term of the Agreement only, solely for the Client ‘s internal needs and for its sole benefit, in accordance with BWI’s applicable user documentation (or any other written instructions provided by BWI).
If the Client receives API keys or passwords to access the Services on BWI’s systems, the Client shall require all Users to keep the API keys, User credentials, and passwords strictly confidential and not to share such information with unauthorized persons. The Client is responsible for all actions performed using the Client’s accounts and passwords.
2.2. Use Restrictions. The Client shall not (and shall not permit any third party to): (i) reverse engineer, decompile, disassemble, or attempt to discover the source code, object code, structure, ideas, or algorithms of the Services; (ii) modify, translate, or create derivative works of the Services; (iii) copy, rent, loan, sell, distribute, pledge, assign, or otherwise transfer or encumber the rights to the Services; (iv) remove or alter in any way any proprietary notices or markings from the Services or any part thereof; or (v) use the Services (including any results of the Services) for the development of any software program, including, without limitation, for training a machine learning or artificial intelligence (AI) system. The Client shall use the Services only in accordance with (1) the rights granted herein, and (2) all applicable laws and regulations.
2.3. BWI APIs. If BWI provides access to APIs as part of the Services, BWI may monitor the Client’s use of such APIs and limit the number of calls or requests that the Client may make if BWI believes that the Client’s use violates this Agreement or may impact the security, operability, or integrity of the Services (or otherwise subject BWI to liability).
2.4. Service availability. The availability status of the BWI Service can be viewed at the following address: https://status.bwi.earth/
2.5. Professional Services. As part of the Services, BWI may provide related professional services (such as training and implementation services) (“Professional Services”). These Professional Services will be detailed in the relevant specifications.
2.6. Evolution of Services. BWI reserves the right to develop the Services, in particular for legal or technological reasons, in order to create new features, improve existing features, or take into account the needs of its customers. If a development is likely to deprive the Client of one or more features initially offered, BWI undertakes to inform the Client in writing at least thirty (30) days before its implementation. The Parties shall discuss in good faith with a view to reaching a commercially reasonable solution. If no solution can be found, the Client may terminate the Agreement as of right. The above-mentioned deadlines shall not apply if the change is required to ensure the Services’ compliance with legal or regulatory provisions, or if such change is essential to ensure the continuity of the Services.
2.7. Documentation. BWI provides the Client with online resources on the website https://app.bwi.earth/doc that enable the Client to learn about and understand the features of the Services (the “Documentation”). These resources may include (i) information on the various features, configurations, options, and ranges available, and (ii) documentation or technical guides on how to use the Services, enabling a better understanding and use of the Services. Before using the Services, the Client undertakes to read all the provisions of the Agreement and to study the Documentation in order to select the Services that are appropriate for its needs. The Client shall ensure that the Services comply with the legal and regulatory requirements applicable to its activities. The Client may obtain additional information about the Services by contacting BWI Support under the conditions set out in the Support Policy.
2.8. Client Obligations. Client agrees to comply with all applicable laws when using the Services. Client is solely responsible (and BWI assumes no responsibility) for: (a) the Client ‘s choices regarding the configuration of the Services’ options (e.g., the number of virtual stations or the location of virtual stations), (b) the Client ‘s use and interpretation of the results generated by the Services and any decisions made by the Client and others based on those results (the Services being only a decision-making aid) , (c) the accuracy, quality, integrity, legality, reliability, and suitability of the Client ‘s data used in connection with the Services, and (d) the backup of its own system and any content downloaded through the Services.
The maximum number of virtual stations that may be created per year by the Client is specified in the Order. If the Client wishes to create additional virtual stations, it may, at any time during the Term of the Agreement, upgrade its subscription by submitting a request to BWI. Any change to the subscription will require a new Order to be placed and the financial terms to be amended.
The Services enable the Client to create and manage virtual stations directly via the Platform or API calls, in accordance with the Documentation.
The Client acknowledges that (i) forecast data will be available three (3) weeks after the Effective Date, and (ii) the Platform allows access to forecast data up to ten (10) hours in advance (for longer-term forecasts, up to ten (10) days, it is necessary to use the API).
The Services are and remain the exclusive property of BWI or its licensors. No transfer of ownership rights is made to the Client in respect of the Services, their constituent elements, and/or any developments that may be made under the Agreement. The Client shall refrain from any act or behavior that may infringe, directly or indirectly, on the intellectual property rights relating to the Services.
5.1. Fees. All Fees are specified in the Order and shall be paid by the Client in accordance with the payment terms specified in the Order. Unless expressly stated in this Agreement (see 5.4 Trial Period), Fees are non-refundable.
5.2. Payment. Unless otherwise specified in the Order, the Client must pay the Fees within thirty (30) calendar days of the invoice date by bank transfer, direct debit, or credit card. Without prejudice to any damages, failure by the Client to pay an uncontested invoice by its due date shall automatically result in the application of late payment interest equal to three (3) times the legal interest rate, without prior notice and from the first day of delay, as well as the payment of a fixed compensation for recovery costs, set at forty (40) euros. In the event of non-payment of the invoice within fifteen (15) days after sending a formal notice by registered letter with acknowledgment of receipt, which has remained unsuccessful, BWI reserves the right to suspend the Services and/or terminate the Agreement.
5.3. Pricing model.
BWI Services can be used:
Unless terminated, the license is automatically renewed at the end of the contractual commitment period.
5.4. Trial period. For annual or multi-year licenses, the first year of the contract begins with a paid trial period corresponding to one-sixth of the term of the agreement. During this period, the Client may terminate the service at any time, provided that each month commencedstarted remains payable. As payment is due at the start of the contract, any termination during the trial period will result in BWI refunding the amount corresponding to the remaining period within thirty (30) days. Setup and training costs will also be refunded on a pro rata basis. Please note that the refund process can only be initiated once the Client’s bank details have been received.
Example of cancellation during the trial period:
One-year commitment, Gold package, license for 1 virtual station
Monthly price (Gold, one-year commitment): $372/virtual station/month
Evaluation period: 2 months
Virtual station license budget for the first year: 12 × $372 = $4,464
Installation costs (example): €5,500
Total budget for the first year (license + installation): €9,964
If the customer decides to terminate the contract during the second month, the evaluation invoice is calculated on a pro rata basis of the total budget for the first year over the months actually used:
Evaluation invoice = (setup fee + first-year license) ÷ 12 × 2, i.e., $9,964 ÷ 12 × 2 ≈ $1,661
In this case, the customer pays approximately $1,661 for the evaluation phase (covering part of the installation costs and the 2 months of the evaluation period). Services).
5.5. Setup Fee. For all contracts, setup fees are applied at the start of the contract to ensure the level of accuracy required for the operational use of the forecasts provided on the Client’s points of interest. These fees cover the initial training of the hydrological model on the selected sub-basins, user training, and initial configuration, which may include professional services such as the integration of new input data provided by the Client, or with information systems, or the development of new features, or the installation and calibration of sensors for the validation of model results. The amount of the setup fees will be determined prior to the start of the contract with BWI, based on the Client’s needs. Additional setup fees may be requested by BWI prior to the Client’s signature of a supplementary quote, in the event that the Client requests BWI during the term of the contract to modify or extend its areas of interest to new sub-basins, or if the Client requests additional services from BWI (e.g., physical sensors, integration with third-party systems or new input data, or development of new features).
5.6. Dispute. If the Client wishes to dispute an invoice, it must notify BWI in writing, stating the reasons, within a maximum of one (1) month of receipt of the invoice in question. The undisputed portion of the invoice must in any event be paid before the due date.
5.7. Price Revision. If BWI increases its Fees, it will notify the Client in advance and the new Fees will only take effect upon renewal of the license – to allow the Client to terminate if it does not agree with the increase. If the Client does not terminate its license prior to renewal, then the previously communicated price increase will take effect.
6.1. Term of the Agreement. Unless otherwise specified in the Order, the Agreement shall be effective as of the Effective Date. In the case of a monthly license, it shall be automatically renewed for successive periods of one (1) month (the “Term”), unless terminated by either Party at least thirty (30) days prior to the end of the current Term. In the case of a fixed-term commitment license, the contract automatically terminates at the end of the commitment period (the “Term”), unless renewed, either identically or with a different fixed term commitment license, by either Party at least thirty (30) days prior to the end of the current Term.
6.2. Termination
6.2.1. Termination for convenience.
The Service may be terminated at any time, without prejudice to the commitments of the Parties, which remain in force until the initial end of the Agreement.
6.2.2. Termination for material breach
In the event of a serious breach by either Party of any of its obligations under this Agreement, and if such breach remains uncorrected for a period of thirty (30) days following receipt of a formal notice, the non-breaching Party may terminate the Agreement at any time by registered letter with acknowledgment of receipt.
6.3. Effects. Upon termination of the Agreement for any reason, (i) all amounts owed to BWI under the Agreement shall become immediately due and payable, except in the event of termination for breach by BWI, and (ii) the Client shall immediately cease all use of the Services.
7.1. Limited Warranty. BWI warrants, solely to the benefit of the Client, that the Services will perform substantially in accordance with the applicable Documentation. BWI’s sole liability (and the Client’s sole and exclusive remedy) for any breach of this warranty shall be limited to using commercially reasonable efforts, at no charge to the Client, to correct the reported non-conformity. If BWI determines that such remedy is not feasible, either Party may terminate the Agreement and the Client’s sole remedy shall be a refund of all Fees prepaid by the Client for the terminated portion of the Agreement. The limited warranty set forth in this Section 7.1 shall not apply: (i) if the error was caused by misuse, unauthorized modifications, or third-party hardware, software, or services; or (ii) to use granted on a free, trial, or evaluation basis.
7.2. Warranty Disclaimer. Except for the limited warranty set forth in Section 7.1, the Services, support, and Professional Services are provided “as is.” BWI makes no other warranties, express or implied, statutory or otherwise. BWI does not warrant that the Client’s use of the Services will be uninterrupted or error-free. BWI is not responsible for delays, interruptions, service failures, or other problems inherent in the use of the Internet and electronic communications.
BWI shall not be liable for any indirect damages (including loss of profits, loss of earnings, loss of business, loss, alteration or corruption of data, financial losses related to time spent remedying any breach of the Agreement, loss of contracts or customers, commercial disruption or any interruption of business arising from or in connection with this Agreement). In any event, in the event that BWI is held liable, it is agreed that BWI’s total and overall liability shall be limited to the sums actually received by BWI under the Agreement during the twelve (12) months preceding the event giving rise to the damage. The Parties agree that this limitation of liability constitutes a determining condition of BWI’s commitment, has been taken into account in determining the Fee, and in no way affects the balance of the respective obligations of the Parties. Notwithstanding the foregoing, the limitation of liability clause shall not apply in the event of gross negligence, fraud, or intentional misconduct, or any action based on another ground that cannot be limited or excluded under applicable law.
The Parties shall not be held liable if the non-performance or delay in the performance of any of their obligations under the Agreement, with the exception of any obligation to pay, results from a case of force majeure, within the meaning of Article 1218 of the Civil Code and French case law. The Party invoking force majeure shall inform the other Party by any means, followed by written confirmation by registered letter with acknowledgment of receipt, as soon as possible. The Parties shall then meet to consider the consequences of the situation and endeavor to reach a solution acceptable to both Parties that will enable the suspended obligations to be fulfilled. If no acceptable solution can be found and if the effects of the force majeure last for more than three (3) months, the Agreement may be terminated without notice by either Party.
BWI will defend the Client against any third-party claim alleging that a Service infringes an intellectual property right and will indemnify the Client for all damages and costs resulting from such a claim (including reasonable attorneys’ fees) that may be charged to the Client as a result, in a final court decision or settlement agreement accepted by BWI, provided that: (i) BWI has been promptly (and in any event within a time frame that does not prejudice BWI) notified in writing by the Client of such claim; (ii) the Client has given BWI the exclusive right to control and direct the investigation, defense, and settlement (if any) of such claim; and (iii) the Client reasonably cooperates with BWI (at BWI’s expense). Notwithstanding the foregoing, (a) the Client may participate in the defense of any claim with counsel of its choice, at its own expense, and (b) BWI shall not settle any claim without the prior written consent of the Client, unless the settlement fully and unconditionally releases the Client and does not require the Client to take any action or admit any liability. If the Client ‘s use of a Service is (or, in BWI’s opinion, is likely to be) prohibited, if an agreement requires it, or if BWI determines that such actions are reasonably necessary to avoid liability, BWI may, at its sole discretion, (a) replace the Service with products or services that function in a substantially similar manner; (b) obtain the right for the Client to continue using that Service; or if solutions (a) and (b) are not commercially reasonable, (c) terminate this Agreement and refund the Client the Fees paid by the Client for the period for which the Service was not provided by BWI. The foregoing indemnification obligation of BWI shall not apply: (1) in the event of modification of the Service by someone other than BWI, but only to the extent that the alleged infringement is caused by such modification; (2) if the Service is used in connection with products or procedures provided by someone other than BWI, but only to the extent that the alleged infringement is caused by such use; (3) any unauthorized use of the Service; (4) any action arising from Client data; or (5) if Client enters into an agreement or makes an admission regarding a claim without BWI’s prior written consent. This Section 10 sets forth BWI’s sole liability and Client ‘s sole and exclusive remedy with respect to any claim for intellectual property infringement.
11.1. Limitations on Use and Disclosure. During the Term of the Agreement and for a period of five (5) years following the termination of the Agreement, each Party agrees to keep strictly confidential the Confidential Information of the other Party. Neither Party may, without the prior written consent of the disclosing Party, use the Confidential Information of the disclosing Party for any purpose other than the performance of its duties and obligations under this Agreement. Notwithstanding the foregoing, each Party may disclose Confidential Information to its employees, Contractors, and advisors (legal, technical, and financial), on a need-to-know basis, provided that such Party has taken reasonable measures to ensure that such Confidential Information remains strictly confidential in accordance with the confidentiality obligations imposed herein, including by requiring such persons not to use the Confidential Information outside the scope of their employment or engagement or to disclose it without the consent of the disclosing Party.
11.2. Exceptions. The confidentiality obligations set forth in this Section shall not apply to Confidential Information or any portion thereof for which the receiving Party can prove that, on the date of disclosure, such Confidential Information is (a) publicly known or subsequently becomes publicly known through no fault of the receiving Party; (b) already known to the receiving Party prior to its disclosure by the disclosing Party or a third party with the right to disclose it; (c) lawfully acquired from a third party with the right to disclose it after entering into this Agreement; or (d) independently developed by the receiving Party or its employees without breach of any confidentiality obligation.
11.3. Required Disclosures. The confidentiality obligations imposed by this Section shall not apply to the extent that Confidential Information must be disclosed pursuant to a court order or at the request of a regulatory agency or other competent government body. The receiving Party required to disclose the Confidential Information of the disclosing Party shall notify the latter upon receipt of such disclosure order and shall use its best efforts to oppose or assist the disclosing Party in opposing such disclosure and, if such disclosure must be made, to obtain a protective order or comparable assurance that the disclosed Confidential Information will be kept confidential and will not be further disclosed without the prior written consent of the disclosing Party. This Section is not intended to limit the ability of either Party to comply with any governmental obligation to disclose its relationship with the other Party.
11.4. Return or Destruction of Confidential Information. The Parties agree that upon expiration or termination of this Agreement, and at any other time upon written request of the disclosing Party, the receiving Party shall, within thirty (30) days, return the Confidential Information to the disclosing Party or, with the latter’s written consent, promptly destroy it and certify in writing to the disclosing Party that it has done so. The receiving Party shall not be required to destroy Confidential Information stored electronically in a computer system that is archived and backed up in accordance with its security or disaster recovery procedures, as long as such data or records are not permanently deleted or overwritten in the normal course of business, and provided that they are not accessible in the normal course of business or used for purposes other than data backup or recovery.
BWI is authorized to use and/or reproduce the Client’s distinctive signs (company name, trade name, and/or logo) on its website and other advertising and marketing materials, for the sole purpose of mentioning the Client as a BWI client. If requested by BWI, the Client also agrees to participate in any relevant case studies, defined in consultation with BWI, and to provide a testimonial on the successful deployment of the Services.
Within the framework of their contractual relations, the Parties undertake to comply with the regulations in force applicable to the processing of personal data, in particular the European Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016. The Client acknowledges that BWI does not need to process personal data or personally identifiable information in connection with the Services.
The Parties expressly agree not to solicit for employment, or to hire directly or indirectly, any employee of the other Party who has been directly involved in the project that is the subject of the Agreement. This prohibition shall apply throughout the Term of the Agreement and for twelve (12) months following its termination, for any reason whatsoever. In the event of a breach of this prohibition, the Party at fault shall be required to pay the other Party, as a penalty clause, a lump sum equal to six (6) months of the last gross monthly salary of the person solicited or hired, plus all costs of recruiting a replacement.
15.1. Applicable law. The Agreement is governed by French law.
15.2. Disputes. In order to find an amicable solution to any dispute that may arise in the performance of the Agreement, the Parties agree to meet within fifteen (15) days of the sending of a registered letter with acknowledgment of receipt notified by one of the two Parties. If, at the end of a period of thirty (30) working days following receipt of the registered letter with acknowledgment of receipt, the Parties are unable to agree on a compromise or solution, any dispute concerning the validity, interpretation, performance and/or termination for any reason whatsoever of the Agreement shall then be submitted to the exclusive jurisdiction of the courts within the jurisdiction of the Paris Court of Appeal.
16.1. Assignment. Neither Party may transfer or assign its rights or obligations under the Agreement without the prior written consent of the other Party. However, each Party may assign its rights and obligations under the Agreement without the consent of the other Party to a company within the group to which it belongs as part of a reorganization, or to a purchaser of its business entity or, in substance, all of its assets or operations to which the rights and obligations relate, provided that: (a) the company belonging to its group or the purchaser is not insolvent or otherwise unable to pay its debts as they fall due; (b) the purchaser is not a competitor of the other Party; and (c) the assignee is bound by this Agreement. Except as provided above, any attempt by either Party to transfer its rights or obligations under the Agreement shall be null and void.
16.2. Nature of the Relationship. The Parties are independent contractors, and nothing in this Agreement shall be construed as creating a partnership, franchise, joint venture, joint enterprise, agency, trust, employment relationship, or any other association between the Parties.
16.3. Severability. If any provision of the Agreement is found to be illegal, unenforceable, or invalid, the remaining provisions of the Agreement shall remain in full force and effect.
16.4. No waiver. The failure of either Party to exercise or delay the exercise of any right or remedy available to it under this Agreement shall not constitute a waiver of that right or remedy, nor a waiver of any other rights or remedies.
16.5. Notices. Unless otherwise specified, all notices under the Agreement shall be in writing and shall be sent as follows: (i) for BWI, to contact@bwi.earth, and (ii) for the Client, to the email address specified in the relevant Order, or to any other address that either Party may notify the other of in accordance with this Section 16.5.
16.6. Electronic signature. The Parties expressly accept the electronic signature of this Agreement, in accordance with Articles 1366 and 1367 of the Civil Code. The Parties agree that the electronic signature of the Agreement is equivalent to a handwritten signature and expresses their agreement to comply with the terms and conditions of the Agreement.
16.7. Entire Agreement. The Agreement constitutes the entire agreement between the Parties and supersedes any prior agreement or arrangement relating to the subject matter of this Agreement. It applies to the exclusion of any other terms and conditions that may be issued by the Client, such as general terms and conditions of purchase.
