The below “Terms and Conditions” define the conditions under which B.W.I., a French simplified joint stock company (SAS) with a capital of 2,027,000 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 these Terms and Conditions together with any and all orders.
“Confidential Information” means any document or information of any kind, whether commercial, financial, structural, technical, or otherwise, which either Party discloses to the other Party in connection with the Agreement, and which is identified as confidential or which would normally, under the circumstances, be considered confidential.
“Client” means the customer entity party to the Agreement.
“Contractor” means an independent contractor or consultant who is not a competitor of BWI.
“Effective Date” means the date of the last signature of the Order.
“Fees” means all the fees payable by the Client under the Agreement.
“Order” means an order form, quote, or other written or electronic form to order the Services referencing these Terms and Conditions. Upon execution by the Parties, each Order will be subject to these Terms and Conditions.
“Party(ies)” means BWI and/or the Client, as applicable.
“Platform” means BWI’s user interface for accessing and administering the Services that the Client may access via the web.
“Services” means BWI’s proprietary SaaS solution enabling its customers to deploy virtual stations across their basins to monitor and predict the evolution of various freshwater parameters, such as river discharge, flow duration curve, water levels, volumes, and quality, including the Platform and BWI application programming interfaces (APIs). The Services provided to the Client are described in the Order.
“User” means an employee or Contractor of the Client who is authorized to access the Services.
2.1. Access to Services: Subject to the Client’s compliance with the Agreement, BWI hereby grants the Client a limited, non-exclusive, non-transferable, and non-sublicensable right to permit the Users to access and use the Services during the Term solely for the Client’s own benefit and internal business use and only in accordance with BWI applicable user documentation (or other BWI-provided written instructions).
If the Client is given API keys or passwords to access the Services on BWI’s systems, the Client will require that all Users keep API keys, user ID and password information strictly confidential and not share such information with any unauthorized person. The Client will be responsible for any and all actions taken using the Client’s accounts and passwords.
2.2. Use Restrictions. The Client will not (and will not allow any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services; (ii) modify, translate, or create derivative works based on the Services; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (iv) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; or (v) use the Services (including any output of the Services) for the development of any software program, including, but not limited to, training a machine learning or artificial intelligence (AI) system. The Client will use the Services only in compliance with (1) the rights granted hereunder, and (2) in accordance with all applicable laws and regulations.
2.3. BWI APIs. If BWI makes access to any APIs available as part of the Services, BWI may monitor the Client’s usage of such APIs and limit the number of calls or requests the Client may make if BWI believes that the Client’s usage is in breach of this agreement or may negatively affect the security, operability or integrity of the Services (or otherwise impose liability on BWI).
2.4. Service Levels. BWI Service Level Agreement is available at: www.bwi.earth
2.5. Professional Services. In connection with the Services, BWI may provide ancillary professional services (such as training and implementation) (“Professional Services”). Any such Professional Services will be specified in an applicable Statement of Work (SoW).
2.6. Evolution of Services. BWI reserves the right to upgrade the Services, in particular for legal or technological reasons, in order to create new features, or improve existing features, or to take into account the needs of its customers. If a change is likely to deprive the Client of one or more of the functions initially proposed, BWI undertakes to inform the Client in writing at least thirty (30) days before its implementation. The Parties will discuss in good faith with a view of reaching a commercially reasonable solution. If no solution can be found, the Client may terminate the Agreement as of right. Such time limits shall not apply if the change is required to ensure compliance of the Services 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 found at https://app.bwi.earth/doc that enable the Client to learn about and understand the characteristics of the Services (the “Documentation”). These resources may include (i) information on the various functionalities, configurations, options, and ranges available, and (ii) documentation or technical guides of use of the Services, allowing a better understanding and use of the Services. Before using the Services, the Client agrees to read all the provisions of the Agreement and to study the Documentation to select the Services adapted to its needs. The Client ensures that the Services are adapted to the legal and regulatory requirements applicable to its activities. The Client may obtain additional information concerning the Services by contacting BWI Support under the conditions provided in the Support Policy.
2.8. Client Obligations. The Client agrees to comply with all applicable laws in its use of the Services. The Client retains sole responsibility (and BWI will bear no responsibility or liability) for: (a) The Client’s choices with regard to configuring the Services’ options (e.g., number of virtual stations, location of virtual stations); (b) The Client’s use and interpretation of the outputs generated through the Services and any decisions made by the Client and others based on such outputs (as the Services are only a decision-making tool); (c) ensuring the accuracy, quality, integrity, legality, reliability, and appropriateness of the Client data used in conjunction with the Services; and (d) backing up their own system and any content downloaded through the Services.
The maximum number of virtual stations that can be created by the Client per year is indicated in the Order. If the Client wishes to create more virtual stations may, at any time during the Term, upgrade its subscription plan upon request to BWI. Any modification of the subscription plan will require the execution of a new Order and the modification of the financial conditions.
The Services allow the Client to create and manage the virtual stations directly via the Platform or API calls, in accordance with the Documentation.
The Client acknowledges that (i) forecast data will start to be available two (2) weeks after the Effective Date, and (ii) the Platform allows to see forecast data up to ten (10) hours (for longer forecasts, it is required to use the API).
The Services are the intellectual property of BWI or its licensors and are under the exclusive ownership of BWI or its licensors. No property rights shall be transferred to the Client in respect of the Services, its component parts and/or any development that may be carried out under the Agreement. The Client shall refrain from any act or behavior that may infringe, directly or indirectly, on the intellectual property rights in and to the Services.
5.1. Fees. All Fees are set forth in the Order and will be paid by the Client in accordance with the payment terms set forth in the Order. Except as expressly set forth herein, all Fees are non-refundable.
5.2. Payment. Unless otherwise stated in the Order, the Client shall pay BWI the Fees within thirty (30) calendar days of invoice issuance date by wire transfer, bank direct debit or payment card. Without prejudice to any damages, failure by the Client to pay an undisputed invoice by the due date shall automatically result in the application of late payment interest equal to three (3) times the legal interest rate, as well as the payment of a fixed indemnity of forty (40) euros for collection costs. In the event of non-payment of the invoice within fifteen (15) days of the sending of 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. Dispute. If the Client wishes to dispute an invoice, they shall provide BWI with the reasons, in a documented manner, within a maximum of one (1) month from receipt of the invoice concerned. The undisputed part of the invoice must in any case be paid by the deadline.
5.4. Price Revision. If BWI increases its pricing, BWI will provide prior notice of the new pricing, and the new pricing will go into effect on renewal. If the Client does not cancel its subscription before renewal, the Client hereby authorizes BWI to collect payment for the increased pricing.
6.1. Term of the Agreement. Except as stated otherwise in the Order, the Agreement comes into force on the Effective Date for an initial period of twelve (12) months and shall automatically renew for successive twelve (12) month periods (the “Term”), unless terminated by either Party at least thirty (30) days prior to the end of the current Term.
6.2. Termination. Each Party may terminate the Agreement at any time by registered letter with acknowledgment of receipt in the event of a material breach by the other Party of any of its obligations which has not been remedied within thirty (30) days of receipt of a formal notice.
6.3. Effects. Upon termination of the Agreement for any reason, (i) all amounts due 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, for the Client’s benefit only, that the Services will operate in substantial conformity with the applicable Documentation. BWI’s sole liability (and the Client’s sole and exclusive remedy) for any breach of this warranty will be, at no charge to the Client, for BWI to use commercially reasonable efforts to correct the reported non-conformity, or if BWI determines such remedy to be impracticable, either Party may terminate the Agreement and the Client will receive as its sole remedy a refund of any Fees the Client has pre-paid for the terminated portion of the Agreement. The limited warranty set forth in this Section 1 will not apply: (i) if the error was caused by misuse, unauthorized modifications or third-party hardware, software, or services, or (ii) to use provided on a no-charge, trial, or evaluation basis.
7.2. Warranty Disclaimer. Except for the limited warranty in section 1, all Services, support, and Professional Services are provided “as is”. BWI does not make any 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 shall not be liable 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, without limitation, loss of profits, loss of business, loss, corruption or alteration of data, financial losses related to time spent in remedying any breach of the Agreement, loss of contracts, or goodwill, business interruption or any other interruption of business arising out of or in connection with this Agreement). In any case, in the event that BWI is held liable, it is agreed that BWI’s total and aggregate 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 commitment, has been taken into account in the determination of the Fees and does not in any way affect the balance of the Parties’ respective obligations. Notwithstanding the foregoing, the limitation of liability clause shall not apply in the event of gross negligence (“faute lourde”) or willful misconduct (“dol”), or any action based on any other basis 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, except for any obligation to pay, is due to a case of force majeure, within the meaning of Article 1218 of the French Civil Code and French case law. The affected Party shall inform the other Party by any means followed by a 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 allowing the fulfillment of the suspended obligations. In the absence of an acceptable solution and if the effect of the force majeure exceeds the duration of three (3) months, the Agreement may be terminated without notice by either Party.
BWI will defend the Client from and against any claim by a third party alleging that a Service infringes any intellectual property right and will indemnify and hold harmless the Client from and against any damages and costs finally awarded against the Client or agreed in settlement by BWI (including reasonable attorneys’ fees) resulting from such claim, provided that BWI will have received from the Client: (i) prompt written notice of such claim (but in any event notice in sufficient time for BWI to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of the Client (at BWI’s expense). Notwithstanding the foregoing sentence, (a) The Client may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and (b) BWI will not settle any claim without the Client’s prior written consent 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) enjoined, if required by settlement or if BWI determines such actions are reasonably necessary to avoid material liability, BWI may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for the Client the right to continue using such Service; or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement and refund to the Client the Fees paid by the Client for the portion of the Term that was paid by the Client but not rendered by BWI. The foregoing indemnification obligation of BWI will not apply: (1) if such Service is modified by any party other than BWI, but solely to the extent the alleged infringement is caused by such modification; (2) if such Service is combined with products or processes not provided by BWI, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of such Service; (4) to any action arising as a result of the Client data; or (5) if the Client settles or makes any admissions with respect to a claim without BWI’s prior written consent. This Section 9 sets forth BWI’s sole liability and the Client’s sole and exclusive remedy with respect to any claim of intellectual property infringement.
11.1. Limitations on Use and Disclosure. During the Term and for five (5) years thereafter, each Party agrees to preserve the confidentiality of the Confidential Information of the other Party. No Party shall, without obtaining the prior written consent of the disclosing Party, use the disclosing Party’s Confidential Information for any purpose other than for 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 steps to ensure that such Confidential Information is kept strictly confidential in accordance with the confidentiality obligations imposed hereunder, including instructing such individuals not to use outside their scope of employment or engagement or reveal any Confidential Information without the consent of the disclosing Party.
11.2. Exceptions. The confidentiality obligations set out in this Section shall not apply to any Confidential Information or any portion thereof, regarding which the receiving Party can prove that at the date of the disclosure it is (a) public knowledge or becomes subsequently public knowledge through no fault from the receiving Party; (b) already known to the receiving Party prior to its disclosure by the disclosing Party or a third party having the right to disclose it; (c) lawfully acquired from a third party having the right to disclose it after having entered into this Agreement; or (d) developed by the receiving Party or its employees independently and without breach of any confidentiality obligations.
11.3. Required Disclosures. The confidentiality obligations imposed by this Section do not apply to the extent that Confidential Information must be disclosed pursuant to a court order or as required by any regulatory agency or other government body of competent jurisdiction. The receiving Party ordered to disclose the disclosing Party’s Confidential Information shall notify the disclosing Party immediately upon receipt of such an order to disclose and use its best efforts to resist, or to assist the disclosing Party in resisting such disclosure and, if such disclosure must be made, to obtain a protective order or comparable assurance that the Confidential Information disclosed shall be held in confidence and not be further disclosed absent the disclosing Party’s prior written consent. This Section is not intended to limit either Party’s ability to satisfy any governmentally required disclosure of its relationship with the other Party.
11.4. Return or Destruction of Confidential Information. The Parties agree that upon the expiration or termination of this Agreement, and at any other time upon the written request of the disclosing Party, the receiving Party shall, within thirty (30) days, return it to the disclosing Party, or, with the disclosing Party’s written consent, shall promptly destroy it and shall further provide the disclosing Party with written certification of same. The Receiving Party will not be obligated to destroy electronically stored Confidential Information to the extent that it is contained in an archived computer system backup in accordance with its security or disaster recovery procedures so long as such data or records, to the extent not permanently deleted or overwritten in the ordinary course of business, are not accessible in the ordinary course of business or used except as required for backup or data recovery purposes.
BWI is authorized to use and/or reproduce the Client’s distinguishing signs (corporate name, commercial name and/or logo) on its website and other advertising and marketing materials solely to reference the Client as a customer of BWI. The Client also agrees to participate in the relevant case study agreed upon with BWI and provide a testimonial upon the successful deployment of the Services if requested by BWI.
In the context of their contractual relationship, the Parties undertake to comply with the regulations in force applicable to the processing of personal data and, in particular, the European Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016. The Client acknowledges that BWI does not need to process personal data or personally identifiable information in the context of the Services.
The Parties expressly prohibit themselves from soliciting with a view to hiring, or directly or indirectly hiring, any person employed by the other Party who has directly participated in the project covered by the Agreement. This prohibition shall apply for the entire duration of the Agreement and for twelve (12) months following its termination, for whatever reason. In the event of a breach of this section, the Party at fault shall be required to pay immediately to 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 subject to French law.
15.2. Disputes. With a view of finding 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 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 a solution, any dispute concerning the validity, interpretation, performance and/or termination for any reason whatsoever of the Agreement shall be subject to the exclusive jurisdiction of the courts within the jurisdiction of the Court of Appeal of Paris (France).
16.1. Assignment. Neither Party may transfer or assign any of its rights or obligations under the Agreement without the prior written consent of the other Party except that either Party may assign its rights and obligations under the Agreement to an affiliate as part of a reorganization, or to a purchaser of its business entity or substantially all of its assets or business to which rights and obligations pertain without the other Party’s consent, provided that: (a) the affiliate or purchaser is not insolvent or otherwise unable to pay its debts as they become due; (b) the purchaser is not a competitor of the other Party; and (c) any assignee is bound hereby. Other than the foregoing, any attempt by either Party to transfer its rights or obligations under the Agreement will be void.
16.2. Nature of Relationship. The Parties are independent contractors and nothing in this Agreement shall be construed as constituting a partnership, franchise, joint venture, common undertaking, agency, fiduciary, employment or other association between the Parties.
16.3. Severability. If any provision of the Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of the Agreement will remain in full force and effect.
16.4. No waiver. The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies.
16.5. Notices. Unless otherwise specifically indicated, all notices under the Agreement, must be addressed in writing as follows: (i) in the case of BWI to contact@bwi.earth, and (ii) in the case of Client to the email address detailed in the relevant Order, or such other address as either Party has notified the other, in accordance with this Section 16.5.
16.6. Electronic Signature. The Parties expressly agree to the electronic signature of this Agreement, in accordance with Articles 1366 and 1367 of the French 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 provisions of the Agreement.
16.7. Entire Agreement. The Agreement constitutes the entire agreement between the Parties and supersedes and replaces any prior agreement or arrangement in respect of the subject matter hereof. It applies to the exclusion of any other terms that may be issued by the Client such as general terms and conditions of purchase.
