General Terms of Service
These General Terms set forth the terms and conditions governing the access and use of the Services provided by Escape Technologies, a French Société par Actions Simplifiées incorporated under the laws of France with its principal place of business located at 8 B Rue de l’Operne, 64200 Biarritz , France, registered in the Trade and Companies Register of Bayonne under number 888 699 584, dully represented by Tristan Ignace KALOS acting in its capacity of President (“Escape”), on or after the Effective Date and during the term hereof, to the client which has subscribed to an Offer the conditions further detailed below (the “Client”), each a “Party” and jointly the “Parties” to this Agreement.
By subscribing to the Offer and prior to any use of the Services, Client declares that he/she has read and accepted these General Terms and the conditions incorporated hereto by reference. Therefore, the Client will be asked to read these General Terms and to check the box "I accept the General Terms" before subscribing to the Offer. By accepting these General Terms, the Client undertakes to comply with all of these provisions, which shall take effect on the date on which the Client gives his or her consent, on the site published by Escape and accessible at https://escape.tech/ (hereinafter, the "Site"), by following and completing the subscription process (hereinafter, the "Effective Date").
Each Party acts exclusively in its own name and on its own behalf with respect to the rights and obligations pursuant to this Agreement. Therefore, Parties agree as follows:
For the purposes of this Agreement, the following terms beginning with a capital letter, whether used in the singular or plural, shall have the following meanings:
"Account" means, as applicable, the Administrator(s) Account(s) or Authorized User Account(s).
“Administrator(s)" means the person authorized by Client to access and manage the Administrator Account(s) on the Platform.
“Administrator(s) Account(s)" means the account created by the Client for the Client's Administrator(s) allowing Administrators to manage and create additional Accounts on the Platform (e.g., creation or deletion of Accounts, access management etc.).
"Authorized User(s) Account(s)" means a personal account created by the Administrator for each Authorized User to access the Platform and use the Solution in compliance with the provisions of this Agreement.
“Affiliate” shall mean and include any entity or association controlled by, controlling or under common control with Escape and for the purposes of this definition, the term “control” shall mean: (i) the ownership of more than fifty percent (50%) of the voting shares of the subject entity or association; (ii) the right or power, directly or indirectly, to elect or remove directors; or (iii) the right or power to control management.
“Agent” means the proprietary software component owned and made available by Escape to the Client, installed and used by the Client to connect the Client’s API and the Platform, in accordance with these General Terms.
“Agreement” means these General Terms of Service and the terms contained in the web links referenced herein and hereby incorporated by reference, including any amendment thereof.
“API” means Application Programming Interface which refers to a technology that allows two applications to communicate with each other through the Internet. APIs are the main means of exchanging data in modern applications.
“API Specification documentation” refers to a formal document describing the Client’s API specifications, generated for each Client’s APIs when using the Agent during the Discovery Phase and used to create tailored security checks of the Client’s API during the Scanning Phase.
“Applicable Law” means any local, state, national and/or foreign law, treaties, and/or regulations applicable to the respective Party under this Agreement.
“Associated Services” means any support and maintenance services relating to the Platform referred to herein and described in Section 7 of these General Terms.
“Authorized Users” refers to the Client's employees (including its Administrators), subcontractors or and service providers acting on behalf and for the internal professional needs of the Client authorized by the Client and/or an Administrator to access and use the Solution under the conditions further described in these General Terms.
“Client’s API” means the APIs owned by the Client and tested via the Solution in accordance with the provisions of this Agreement.
“Client’s Data” means refers any information, data and/or document communicated by the Client and/or its Authorized Users to Escape and/or its Affiliates, or produced on its behalf, including Confidential Information and/or Personal Data if any (subject to the provisions of Section 17.1 of this General Terms), and/or downloaded, hosted and/or otherwise used by the Client through the Solution under this Agreement and/or in the course of the performance of the Services.
“Discovery Phase” refers to the execution phase of the Services aiming when applicable at analyzing any Client’s API installed in its execution’s environment via the Agent and generating a dedicated API Specification documentation in the conditions further described at https://docs.escape.tech. Any information relating to the Discovery Phase will be made available to the Client on the Platform. This phase will not be required for certain of the Client’s API (e.g. for GraphQL APIs as opposed to REST APIs).
“Documentation” refers to the documentation related to the Solution including a description of its specific features, user manuals and settings.
“Endpoint” refers to the Internet address targeted to trigger an action of the Client’s API. For the sake of clarity, APIs may be composed of numerous different endpoints depending on the technical structure of the Client’s API, provided that each Endpoint includes a method (i.e. POST, GET, UPDATE, or DELETE) and a route (e.g. “/user/username”).
“GDPR” refers to Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
“General Terms” means the provisions set out in this document “General Terms of Service” and its appendices, including any amendment thereof.
“Identifiers” means the connection identifiers (including usernames and passwords) chosen by the Client or the Administrator to allow Authorized Users to access the Platform, as further described in Section 6 of these General Terms.
“Intellectual Property Rights” means authors’ rights and copyrights, inventions, patents and applications to register patents, trademarks and application to register trademarks, design, drawing and model rights, semi-conductor topography rights, database rights, internet domain names, company and business names, whether registered or not on all creations, know-how or any similar form of protection in force anywhere in the world.
“Major Anomaly” refers to any anomaly that makes impossible to access and use the Platform.
“Minor Anomaly” refers to any anomaly affecting all or part of the Platform and which is not a Major Anomaly.
“Offer” refers to the applicable offer subscribed by the Client on the Site.
“Platform” refers to a web SaaS platform accessible by the Authorized Users at https://app.escape.tech hosted on Escape’s own environment that allows the Authorized Users to access and use the results generated during the Discovery Phase and/or Scanning Phase according to the applicable Offer and as further described in this Agreement.
"Endpoint" refers to the metric used by Escape to monitor the usage of the Solution by the Client and its Authorized Users for a specific Client’s API, as further detailed in the applicable Offer and in Section 11.1, which may correspond for a REST API to the number of Endpoints targeted to trigger an action of the Client’s API or for a GraphQL APIs to the number of Objects defined in the Client’s GraphQL Specification.
“SaaS” means Software as a Service.
“Scanning Phase” refers to the execution phase of the Services aiming at testing any Client’s API in its execution’s environment via the Agent and implementing a security check based when applicable on the results obtained during the Discovery Phase in order to identify any Vulnerability affecting the Client’s API in the conditions further described https://docs.escape.tech. Any information relating to the Scanning Phase will be made available to the Client on the Platform.
“Service Levels” or “SLA(s)” refers to the levels of services that Escape undertakes to comply with under this Agreement, as more fully described in Appendix 1. Client acknowledges and agrees that Appendix 1 which reproduces the services levels applicable at the Effective Date of this Agreement and may be subject to changes as further indicated in Section 3.3 and 3.4., is attached to this Agreement for information purposes only. Client shall regularly consult the Services Levels made available online at https://escape.tech/sla
“Services” refers to the rights of access and use granted to the Client by Escape on the Solution as well as the Associated Services provided by Escape to the Client under this Agreement.
“Solution” refers to all of Escape’s proprietary technology (including the Platform, the Agent and any additional software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible element, protected or not by Intellectual Property Rights) that Escape may make available to the Client from time to time in accordance with this Agreement in the course of the provision of the Services.
“Vulnerability” refers to a weakness in an information system, system security procedures, internal controls or implementation that could be exploited or triggered by a threat source.
This Agreement sets forth the provisions governing the rights of access and use of the Solution by the Client and its Authorized Users as well as the conditions under which Escape provides the Client with the Associated Services as ordered by the Client .
Order of Precedence. The contractual relationship between the Parties is governed by the following documents cited in decreasing order of importance:
these General Terms (including any documents integrated hereto by reference and any amendments thereof);
Appendix 1 of these General Terms.
In the event of inconsistency or contradiction between one or several provisions stipulated in: (i) any document above the document with a higher ranking shall prevail ; (ii) these General Terms and any document integrated hereto by reference, the provisions of any document integrated hereto by reference shall prevail. Any purchase order, acknowledgment, or other business form either Party issues in connection with this Agreement is solely for the issuing Party’s internal convenience, and will not modify, amend, or supplement the provisions of this Agreement, irrespective of whether it purports to do so, or whether it is countersigned or acknowledged by the other Party. Parties agree that the general conditions of each of them are not applicable. Any modification of this Agreement must be the subject to a written amendment duly signed by the authorized representatives of both Parties.
Documents integrated into this Agreement by reference. The description of the Services, SLAs and other additional provisions are made available to the Client within this Agreement via hyperlinks redirecting to content available online, which are a part of, and are hereby incorporated by reference into, this Agreement. By entering into this Agreement, Client confirms that it (i) has full knowledge of all provisions incorporated herein by reference, (ii) agrees to be bound by and accept (and shall cause its Authorized Users to agree to be bound by and accept) all provisions incorporated herein by reference. Escape reserves the right to make changes in the provisions incorporated herein by reference at any time, subject to Section 3.4 of these General Terms.
Amendments. Except as specifically indicated herein, any amendment to this Agreement must be in writing and duly signed by both Parties. Escape reserves the right to, and hereby to notify the Client that it may, amend the provisions incorporated herein by reference at any time, (including by adding new provisions, or deleting or modifying existing provisions) as may be required under Applicable Law or otherwise, which amendment generally shall take effect thirty (30) days after notice to the Client (unless another effective date is specified in the notice). Any future provisions will not, on an overall basis, with respect to any Services provided to Client under this Agreement, result in a material increase in the Client’s liabilities and obligations under this Agreement, or a material decrease in Escape’s liabilities or obligations under this Agreement. Client agrees to accept (and cause its Authorized Users to accept) all changes made (and further to abide by the amended provisions) as a condition of this Agreement governing the acceptance of the provision of the Services to the Client.
Term of the Agreement. This Agreement shall start on the Effective Date and continue in full force and effect until the Offer is terminated by the Client or by Escape under the conditions set out in Section 18 of these General Terms.
SUBSCRIPTION TO AN OFFER
Orders. Client may order Services from Escape only through the Site by following the subscription process. To order the Services, Client shall create an Account on the Site, select an Offer, fill in all the required information and accept these General Terms. The Client will then receive a confirmation by email and be invited to finalize its order by providing its payment details for the payment of the fees due for the provision of the Services as indicated in the applicable Offer and under the conditions further detailed in Section 11 of these General Terms.
Access and use of the Services. Client and its Authorized Users will only be granted an access to, and be entitled to use, the Services as from the completion’s date of the subscription’s process described in Section 5.1 above.
CONDITIONS OF ACCESS AND USE OF THE SOLUTION
Perimeter of rights. Escape grants the Client and its Authorized Users, from the Effective Date and for the term of the Agreement, the right to access the Platform in SaaS mode and use the Agent available within the Platform under the conditions further described in Section 12 of these General Terms.
Access to the Platform. To access the Platform, the Client shall create an Administrator Account when he first connects to the Platform allowing the Administrator to create Authorized Users Accounts. Authorized Users shall use the Identifiers communicated to them by the Client and/or the Administrator when they first connect to the Platform and shall be invited to personalize their Identifiers, including their passwords. The Client must ensure that its e-mail address and those of its Authorized Users remain valid throughout the term of this Agreement, otherwise, the Client and/or the Authorized Users may no longer be able to access the Platform.
Confidentiality and security. Identifiers are personal and confidential. Client and its Authorized Users must choose a unique password that complies with the highest applicable security standards and shall regularly change their passwords to limit security risks. Client is solely liable for the use that he and/or his Authorized Users make of Identifiers, the Solution and any Services. Client undertakes to notify Escape as soon as possible in the event of potential misuse of Identifiers of one or more of its Authorized Users, or in the event of a security breach in this context as soon as it becomes aware of it. Any operation made on the Platform via the Client’s and Authorized Users’ Identifiers will be deemed performed by the Client and made under its sole liability. Client hereby acknowledges and agrees that the Platform shall be considered as the only valid evidence of the nature, substance, date and time of the operations performed by the Client, in particular in relation with its Scanned Endpoints Amount.
Restrictions of use. Client and any Authorized User accessing the Solution shall refrain from i) using the Solution and/or the Services for purposes other than those strictly provided for in this Agreement or in any way prohibited by a legal or regulatory provision; ii) use the Solution and/or any Services in violation of the rights of any third-party ; iii) use the Solution and/or Services in a manner that may damage the Solution and/or the Services or interfere with their use by another client; iv) sell, rent, sub-license, market, distribute, transfer or make, in any way whatsoever, the Solution and/or the Services available to any person other than the Authorized Users or provide any type of service to a third-party in connection with the Solution and/or the Services, including in particular consulting, training, assistance, support, maintenance, outsourcing, office service, configuration or development services; v) modify (except as permitted and described in the Documentation and this Agreement), adapt, reverse engineer, decompile, disassemble or otherwise translate all or part of the Solution; vi) correct errors, defects and any other anomalies in the Solution and/or the Services; vii) violate Escape's legitimate interests and in particular its Intellectual Property Rights and other rights relating to or related to the Solution and/or the Services; viii) remove or modify the Escape trademark, logo or any other distinctive sign contained in the Solution and/or the Services.
PROVISION OF ASSOCIATED SERVICES
Support and maintenance services. Escape provides the Client with support and corrective maintenance services under the conditions further described in the SLAs. Subject to the cases expressly referred to below, the price of the Associated Services is included in the price paid by the Client for access and use of the Solution as set out in Section 11 of these General Terms and in the applicable Offer. The provision of an access to the Solution and the provision of the Associated Services to the Client are intrinsically linked and may not be dissociated in any way.
Exclusions. Escape is not required to provide the support and maintenance Services and shall not be liable in any way in the following cases: i) refusal by the Client and/or the Authorized User concerned to actively cooperate with Escape in resolving the Anomalies and in particular to answer requests for information; ii) misuse of the Solution regarding in particular the Services’ purposes, Documentation and/or Escape's instructions; iii) in the event of unauthorized modification of all or part of the Solution by the Client and/or any Authorized User; iv) in the event of Anomalies due to failures of Internet communication networks and/or due to the actions of a third-party; v) in the event of Anomalies related to a Force Majeure event. However, if the Client so requests, Escape may, if possible, work on resolving any malfunctions and Anomalies encountered in the cases listed above. In such case, Client acknowledges and agrees that Escape will invoice the Client of such additional work at Escape's rate in effect at the date of its intervention.
Escape Obligations. Escape undertakes to provide the Services to the Client and to perform its obligations under this Agreement in a professional manner in accordance with good industry practices, in accordance with the provisions of this Agreement and the Service Levels. Services are performed by the personnel of Escape, who alone determines the composition of its work team, the organization of tasks and ensure the supervision, direction, and control of its employees. Regardless of the term of this Agreement, the personnel therefore remain in all circumstances under Escape's hierarchical authority. Escape is directly responsible for the direction, discipline and safety of its personnel and its staff members may under no circumstances be considered as the Client's employees.
Service Levels and Service Credits. Escape undertakes to provide the Services to the Client in accordance with the Service Levels. If Escape fails to meet the Availability Rate (as defined in the SLAs) over a three-month period, Escape shall provide, at Client’s request, Service Credits for the affected part of the Services, as further described in the SLAs. The total amount of the Services Credits applied pursuant to this Section for the term of this Agreement shall in no event be higher than ten percent (10%) of the price (VAT excluded) paid by the Client for access and use of the Solution under this Agreement. Service Credits shall be deducted from subsequent invoices or, upon termination of the Agreement, paid to Client directly. Without prejudice to Client’s rights under Section 18, the remedies set forth in this Section shall be Client’s exclusive remedy and Escape’s sole liability for Escape’s failure to comply with the Service Levels.
Client Obligations. Client shall: (a) have sole responsibility for the accuracy, quality, and legality of all Client’s Data; and (b) use reasonable endeavors to prevent unauthorized access to, or use of, the Services, and notify Escape promptly of any unauthorized access or use. Client shall not: (i) use the Services in violation of Applicable Laws; (ii) in connection with the Services, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (iii) knowingly send or store malicious code in connection with the Services; (iv) use the Services to detect, exploit and/or take any advantage of third party’s API Vulnerabilities; (v) knowingly interfere with or disrupt performance of the Services or the data contained therein; or (vi) attempt to gain access to or use the Services or its related systems or networks in a manner not set forth in the Documentation. Client is responsible for its Authorized Users’ compliance with this Agreement and any breach by its Authorized Users shall be deemed a breach by the Client.
Client’s Cooperation. The Client undertakes to cooperate loyally and actively with Escape, in particular, to communicate and/or allow Escape to access the information, documents and any other elements necessary for the performance of the Services.
Cooperation. Parties undertake to fully cooperate in the proper performance of the Agreement. Client and Escape shall take all necessary measures, each with regard to their respective staff, to facilitate the performance of this Agreement during its term and in particular: i) to ensure the availability, collaboration and competence of its staff members; ii) to consult each other without delay in order to deal with any unforeseen situations or situations that may require arbitration; iii) to cooperate, with regard to Escape with any third-party service providers who could be in charge of work in liaison with the Services.
PRICES AND PAYMENT TERMS
Prices. In consideration of the rights, licenses and Services provided under this Agreement, the Client shall pay to Escape the amounts corresponding to the volume of Endpoint Scanned by the Client each month when using the Solution, calculated according to the calculation pricing method detailed in the applicable Offer subscribed by the Client (the “Endpoint Count”). Unless otherwise stated in the applicable Offer: i) the price corresponding to the Endpoint Count are payable on a monthly basis; and ii) the Client will be invoiced on the first business day of each month on the basis of the Client’s Scanned Endpoint Count of the previous month; and iii) the amounts due by the Client will be automatically debited from the bank account indicated by the Client based on the SEPA mandate granted by the Client to Escape on the Effective Date on the first business day of each month
Prices revision. The prices applicable to the provision of the Services may be changed at any time by Escape during the term of the Agreement. In such a case, Escape shall notify the Client in writing of any change in the prices applicable to the provision of the Services. The change in the prices applicable to the provision of the Services shall not be effective until two (2) months after Escape has notified the Client in writing. If this new pricing is not accepted by the Client, the Client is free to terminate the Agreement under the conditions set out in Section 18.1 of these General Terms.
Late payments. Without prejudice to any damages Escape may claim otherwise and its right to terminate the Agreement under the provisions of Section 18.4 of the General Terms, Escape shall be entitled, in the event of failure by Client to pay the relevant prices within the above-mentioned deadlines, to (i) automatically apply a late payment interest equal to three (3) times the legal interest rate calculated per day of delay from the date the payment is due until the effective payment date, without any formal notice being necessary; (ii) in addition to late payment interests, request the payment of a lump sum of forty (40 euros) for recovery costs in accordance with Articles 441-10 and D.441-5 of the French Commercial Code. Where the recovery costs incurred exceed the amount of this fixed indemnity, Escape may request additional compensation, upon justification; and (iii) suspend the access to the Solution with no prior notice, without liability to the Client, until such amounts are paid in full.
Taxes. All prices are exclusive of taxes. Client shall be responsible for payment of any and all taxes, including fees, duties, excises, import VAT, or similar charges of any nature whatsoever, now in force or enacted in the future, that are levied, assessed, charged, withheld, or collected for or in connection with the transfer or usage, to the extent authorized hereunder, of the Services provided hereunder or otherwise arising in connection with this Agreement, but excluding domestic taxes based on Escape’s net income. If the Client is required to withhold, deduct, or pay for any tax from the amount of fees to be paid under this Agreement, then the Client shall pay such additional amount to Escape as is necessary to ensure that Escape receives a sum equal to what would have been received had no such withholding, deduction or payment been required.
Rights on preexisting elements
Each Party shall remain the sole owner of its own pre-existing works protected or not by Intellectual Property Rights owned by a Party before the Effective Date of this Agreement.
Right of access and use the Solution
Right of access and use the Platform. In consideration of the payment of prices set out in the applicable Offer and provided that the Client and its Authorized Users comply with the provisions of this Agreement, Escape grants the Client, from the Effective Date and for the term of the Agreement, worldwide,, a non-exclusive, limited and non-transferable (including by sublicense) right to:
- access in SaaS mode and use the Platform and all components contained therein as well as any Documentation related therefrom;
- allow its Authorized Users to access in SaaS mode and use the Platform and all components contained therein as well as any Documentation related therefrom.
Right to install and use the Agent. In consideration of the payment of prices set out in the applicable Offer and provided that the Client and its Authorized Users comply with the provisions of this Agreement, Escape grants the Client, from the Effective Date and for the term of the Agreement, worldwide, a non-exclusive, limited and non-transferable (including by sublicense) right to:
install and use the Agent for the sole purpose of interfacing with the Client’s API to benefit from the Services;
allow its Authorized Users to install and use the Agent for the sole purpose of interfacing with the Client’s API to benefit from the Services.
Client and its Authorized Users are authorized to access and use the Solution for the sole purpose of i) interfacing the Agent with the Client’s API to benefit from the Services; ii) consulting any information relating to the Services; and iii) for the internal business needs of the Client only, any commercial exploitation of the Services being excluded.
Escape’s property. Except for the limited rights expressly granted to the Client under this Section of these General Terms, Escape is and remains the exclusive owner of all rights (including Intellectual Property Rights) in or to the Solution, all its components (including, but not limited to the Platform and the Agent), the related Documentation made available to the Client and its Authorized Users by Escape under this Agreement. Any rights relating to know-how, techniques, programs, tools, integrations, improvements and/or documents developed by Escape connection with the provision of the Services or co-developed by the Parties in connection with this Agreement, shall remain the exclusive property of Escape. As such, Client undertakes not to delete, modify or alter any mention of Intellectual Property Rights displayed or provided by the Services. The Solution (including the Platform and any components therein, the Agent and any element provided by Escape to the Client under this Agreement) is confidential in nature and not in the public domain.
Property rights on Data
Escape is and remains the owner of the data made available to the Client and used for the provision of the Services. Client is and remains the owner of the Client’s Data.
Indemnification by Escape. Escape undertakes to defend, indemnify and hold the Client harmless from and against any and all liabilities, damages and costs arising out of any claim by a third party alleging that the Solution infringe any intellectual property rights of a third-party. Such indemnity, however, is specifically exclusive of any such claims which arise or result from i) the use of the Solution in violation of the provisions of this Agreement and/or misuse of the Solution; ii) modification of the Solution by any person other than Escape and/or alteration of the Solution as provided by Escape; iii) use of the Solution in combination with any other product, software and/or services not provided by Escape; iv) Client or third party content and/or software including databases, used via the Solution. This indemnification shall extend only to damages and costs (including reasonable legal fees) finally awarded against the Client by a court of competent jurisdiction or agreed to as a result of a written settlement entered into with the prior written consent of Escape. This indemnification is granted to the Client, provided that the Client (i) promptly notifies in writing Escape of any claim or legal action brought pursuant to this Section; (ii) does not make any admission of liability, agreement or compromise in relation to the claim without the prior written consent of Escape; (iii) provides Escape with reasonable assistance and cooperation in the defense and settlement of any claim, including by providing Escape with reasonable access to its premises and/or to any relevant information or records so as to enable Escape to assess and/or defend such claim; and (iv) Escape shall have exclusive control over the defense of such claim and any related settlement discussions. If such claim is made, or if in Escape reasonable opinion is likely to be made, Escape may at its sole option and expense: i) secure the right for the Client to continue using the Solution in accordance with the provisions of this Agreement, ii) modify the Solution so that the Solution cease to be infringing, or iii) replace the Solution with another element with similar functionalities. If none of the foregoing options is available on terms which are reasonable in Escape's judgment, Escape may terminate the Agreement. In such a case, Escape shall refund all prices paid hereunder for the affected Services. This Section states Escape’s entire liability and Client’s exclusive remedy for any claim of infringement of intellectual property rights.
Indemnification by the Client. The Client warrants Escape that it holds all the rights and authorizations necessary for the use of any element provided by the Client and/or any Authorized Users under this Agreement and that it has accordingly paid all the rights and payments that may be required. Client undertakes to defend, indemnify and hold Escape harmless from and against any and all liabilities, damages and costs arising out of any claim, proceeding or legal action by a third party or a competent authority alleging that any element provided by the Client and/or any Authorized Users under this Agreement (including Client’s Data) and/or any breach of the Client’s obligations under this Agreement, result in a violation of any third party’s rights (including any Intellectual Property Rights). This indemnification shall extend only to damages and costs (including reasonable legal fees) finally awarded against Escape by a court of competent jurisdiction or agreed to as a result of a written settlement entered into with the prior written consent of the Client. This indemnification is granted to Escape, provided that Escape (i) promptly notifies in writing the Client of any claim or legal action brought pursuant to this Section; (ii) does not make any admission of liability, agreement or compromise in relation to the claim without the prior written consent of the Client; (iii) provides the Client with reasonable assistance and cooperation in the defense and settlement of any claim; and (iv) the Client shall have exclusive control over the defense of such claim and any related settlement discussions.
General Warranty. Escape warrants that during the term of this Agreement: (i) the Solution shall perform materially in accordance with the Documentation ; and (ii) the functionality of the Solution will not be materially decreased. In the event of a breach of the warranty set forth in (i), or (ii), Escape shall correct the non-conforming part of the Solution at no additional charge to Client, and if Escape is unable to correct such deficiencies after good-faith efforts, Escape shall refund Client amounts paid or at the request of Client. Escape shall respectively reimburse any amounts in proportion to the amounts payable attributable to the defective part of the Solution from the date Escape received such notice or Client provides evidence that the defect has occurred. Client shall notify Escape in writing within thirty (30) days of identifying a deficiency, but Client’s failure to notify Escape within such period shall not affect Client’s right to receive warranty remedies unless and to the extent that Escape is somehow unable to, or impaired in its ability to, correct the deficiency due to Client’s failure to notify. Notice of breaches of the warranty shall be made through email at email@example.com. The remedies set forth in this Section shall be Client’s exclusive remedy and Escape’s sole liability for breach of these warranties unless the breach of warranty constitutes a material breach of this Agreement, in which case Client may elect to terminate this Agreement in accordance with Section 18.1. Escape shall not be subject to any obligations under this Section should the Client (i) not properly maintain all associated equipment, software, Internet access, and environmental conditions in accordance with the General Terms, the Documentation and applicable industry standards; (ii) not use software or equipment that is capable of supporting the Solution and the Services; (iii) introduce other equipment or software creating an adverse impact on the Services; (iv) or its Authorized Users or any other person operating under Client’s control causes defaults.
Warranties Disclaimer. The foregoing warranties are in lieu of and exclude all other warranties, representations, or conditions for Services, whether express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, title or non-infringement. Escape disclaims all liability and does not warrant that i) Services will meet Client’s requirements or will enable it to reach the objectives Client has set for itself, (ii) Services will operate in the combination or environment selected for use by the Client (iii) the operation of Services will be uninterrupted, accurate, complete or error-free or (iv) the use of the Services prevents the Client from all and any security breach or hack. While using the Services, Client understands and agrees that it should continue to use a reasonable degree of care when managing its APIs and to protect them against security threats, including (without limitation) by avoiding downloading any obviously malicious applications. The Client agrees that the Services may be subject to limitations, delays, errors, and other problems inherent to the use of the Internet and electronic communications. Escape is not responsible for any delays, delivery failures, or other damage resulting from such problems. In all instances, the Client shall be solely responsible for ensuring that the results produced by the Services comply with quality and safety requirements of its products or services. This warranties’ disclaimer applies to the maximum extent permitted by Applicable Law.
LIMITATION OF LIABILITY
Liability. Each Party shall be liable for direct damages, which are caused by a Party and/or its Authorized User, its subcontractors or Affiliates, to the other Party or to third parties in connection with the performance of this Agreement.
Indirect damages. Under no circumstances shall a Party be liable for any indirect damage that a Party, its Authorized Users and/or its subcontractors cause to the other Party, including without limitation claims for lost profits, business interruption, loss of turnover and/or loss of data that in any way relate to this Agreement, the Services, the Solution, the Documentation, whether Escape has been advised of the possibility of such damages and notwithstanding the failure of the essential purpose of any remedy. Escape shall not be liable for the loss, destruction, alteration and/or disclosure of the Client’s Data by the Client or a third party having accessed the Platform using the Client's and/or its Authorized User's Identifiers.
Liability Cap. In no event shall Escape (or its respective Affiliates) total aggregate liability for any and all claims (individually and in the aggregate) arising out of or related to this Agreement, exceed the total amount of fees paid by the Client for the Services which caused the damages in the twelve (12) months period prior to the occurrence of the cause of action giving rise to the claim.
No limitation. Notwithstanding the foregoing, Parties are liable without limitation with respect to: (i) death or personal injury; (ii) fraud, fraudulent misrepresentation, willful misconduct or gross negligence; (iii) either party’s intellectual property indemnification obligations in Section 12.4; and (iv) Client’s payment obligations.
Upon the occurrence of an event of force majeure, as defined in Article 1218 of the French Civil Code, resulting in a temporary impediment to performance for one of the Parties (the "Force Majeure Event"), the respective obligations of the Parties shall be suspended and neither Party shall incur any liability as a result.
The Party invoking a Force Majeure Event undertakes, however, to (i) notify the other Party of its existence as soon as possible, (ii) do everything necessary to limit the consequences thereof, and (iii) resume performance of the Agreement, immediately after the Force Majeure Event has ceased.
Should the Force Majeure Event continues for more than one (1) month, and/or if, upon its occurrence, it causes a definitive impediment to the performance of either Party, either Party shall be entitled to terminate this Agreement by giving written notice to the other Party by registered mail with return receipt requested. Such termination shall be effective upon receipt of such registered mail with return receipt requested without liability to either Party.
“Confidential Information” means any non-public information, know-how and trade-secret communicated by one Party to the other, and/or accessed by a Party, on any medium, in writing, orally or by any means whatsoever, during the negotiations and/or the performance of this Agreement, which i) is clearly marked as “Confidential”, or ii) shall be understood as confidential by any reasonable person, including but not limited to the Solution and any Escape know-how or trade-secrets.
The following information is not deemed Confidential Information: (a) information that is already in a Party’s possession at the time of disclosure, as duly evidenced by such Party in writing, or (b) information that is now in or enters the public domain other than through unauthorized disclosure by the receiving Party and without a breach of this Agreement, or (c) information that is rightfully received by a Party from a third party who has a right to disclose such Information and without any obligation to keep it confidential, or (d) information that is independently developed by a Party without use or reference to any of the Confidential Information, (d) information that is required to be disclosed with respect to any applicable legislation, regulation law or court order (in which case it shall be disclosed only to the extent required and when permitted by law after having notified in writing the disclosing Party).
Each party receiving Confidential Information undertakes to, i) hold said Confidential Information in strict confidence and not to publish or disclose Confidential Information to third parties except as provided below; ii) not to use the Confidential Information for any purpose other than that provided in the; iii) take all measures necessary to protect confidentiality; iv) limit circulation and access to its Authorized Users, employees, consultants or sub-contractors, or those of its Affiliates on a need-to-know basis (the “Representatives”) and v) ensure that its Representatives are required to protect the Confidential Information on terms consistent with this Agreement and accept responsibility for each Representative’s use of Confidential Information. All Confidential Information shall remain the exclusive property of the Party from which it originated.
Parties’ obligations with respect to Confidential Information shall remain in effect for the Term of the Agreement and for a period of five (5) years after the expiration or termination of this Agreement.
For the purposes of this Section and more generally the performance of the Services under the Agreement, the terms with a capital letter, whether used in the singular or plural, shall have the following meanings: “Controller”; “Data Subject”, “Personal Data”, “Personal Data Breach”, “Processing”, “Processor”; “Supervisory Authority”, shall have the meaning prescribed to these terms in Article 4 of the GDPR. “Applicable Regulations” shall mean the GDPR and any applicable national law implementing the GDPR, as regularly updated, amended and/or superseded, notably the French Act No. 78-17 dated 6 January 1978, the so-called French Data Protection Act, as well as any applicable national law enacting the EU Directive 2002/058/EC dated 12 July 2002, the so-called e-Privacy Directive, as regularly updated, amended and/or superseded from time to time.
Processing of Client’s Data by Escape via the Solution
The Client hereby acknowledges and agrees that (i) the purpose of the Solution is to analyze during the Discovery and Scanning Phases the Client's APIs to identify Vulnerabilities that may affect the Client’s API during the testing and execution phases of an API and is therefore not intended to Process Client’s Personal Data ; (ii) Client's Data uploaded, included or otherwise contained in the Client's API shall not include nor process any Personal Data.
In this respect, the Client undertakes and guarantees that the Client’s API will not contain nor Process any Personal Data. In the exceptional case where the Client's API may involve the Processing of Personal Data during the testing and execution phases, Client undertakes to inform Escape prior to any use of the Services for this purpose and implementation of such Processing so that appropriate contractual stipulations can be implemented by the Parties.
Information regarding the processing of Personal Data implemented by Escape to manage the contractual relationship with the Client
In the context of the performance of the Agreement, Escape is required to collect and Process Personal Data regarding the Client, the Client's employees, representatives and/or managers in order to enable it to manage the contractual relationship. In this respect, Escape, as a Controller, implements a Processing, in compliance with Applicable Regulations whose purposes are the management of its Clients (including contract management, invoices and monitoring of Scanned Endpoints Amount, accounting, monitoring of the contractual relationship, claims management, running of commercial and financial statistics, etc.) and more generally the management of operations enabling it to communicate with the Client (including direct marketing). Escape also process Personal Data to be able to enforce its Agreement in case of breach or non-compliance as well as to ensure compliance with its legal obligations.
The Processing implemented is based:
- for the following purposes on the performance of the Agreement: management of its Clients, i.e. contract management, invoicing and monitoring of Scanned Endpoint Amount, monitoring of the proper performance of the contractual relationship, claims management, etc.; management of operations enabling Escape to communicate with the Client; enforcement of the obligations set forth in the Agreement;
- for the following purposes on the legitimate interest of Escape: direct marketing operations, running of commercial and financial statistics;
- for the following purposes on compliance with a legal obligation: accounting; enforcement of legal obligations including the ones set forth by Applicable Regulations.
The Personal Data collected and Processed in this context as well as the entire file associated with the Client will be retained for the term of the contractual relationship between the Parties, Personal Data that could be necessary in case of disputes and/or litigations arising out between the Parties will be retained for the applicable statute of limitation.
The Personal Data collected and Processed in this context will only be accessible to and/or processed by:
- Escape and its Affiliates’ employees on a need-to-know basis, i.e. the employees who need to access the data in order to perform their duties;
- third party service providers, acting as Processors, in order to perform hosting, storage, analysis, communication, database management or IT maintenance services;
- judicial or financial authorities, state agencies or public bodies, upon request and to the extent permitted by the Applicable Regulation, if required by law or if Escape believes in good faith that such disclosure is reasonably necessary to comply with legal proceedings;
- third parties in connection with any merger, acquisition or sale of all or part of the Escape’s assets.
The Personal Data collected and processed may be transferred outside the EU. When Personal Data is transferred outside the EU, Escape puts in place all appropriate safeguards to ensure the protection of the Personal Data of the Client's employees, representatives and/or managers in accordance with Articles 45 et seq. of the GDPR. Depending on the transfer involved, Escape relies on an adequacy decision issued by the European Commission, or on its Processors Binding Corporate Rules or execute binding agreements incorporating the European Commission's standard contractual clauses, a copy of which can be requested by email to the address below.
In accordance with the Applicable Regulations, the Client and/or the employees, representatives and managers of the Client have a right of access, rectification, erasure of their Personal Data, a right to restrict the Processing, as well as a right to object the Processing of Personal Data about them. The Client and/or the Client's employees, representatives and/or managers also have the right to send to Escape specific instructions regarding the fate of their Personal Data after their death. To exercise these rights, the Client and/or the employees, representatives and managers of the Client may submit a request to Escape:
- by email to: firstname.lastname@example.org; or,
- by mail to: Escape Technologies, 8 B Rue de l’Operne, 64200 Biarritz, France
The Client and/or the employees, representatives and/or managers of the Client may file a complaint with the Supervisory Authority. The Client undertakes to inform its employees, managers and/or representatives of the information contained in this Section relating to the Process of their Personal Data within the context of the performance of the Agreement.
Termination of the Agreement. Either Party may terminate this Agreement at any time for any reason whatsoever by notifying the termination of this Agreement by email to the following email address email@example.com, or by following the procedure described on the Platform. In such case, this Agreement and access to the Solution shall terminate on the last day of the month following the month in which the above-mentioned notification occurred, without either Party being entitled to claim any compensation in this respect (“Effective Termination Date”).
Termination for cause. Without affecting any other right or remedy available to the Parties, either Party may immediately terminate this Agreement, as of right if such other Party: (a) is in breach of any of its obligations under this Agreement and has failed to remedy such breach within thirty (30) days after notice thereof; or (b) defaults in the performance of any of its obligations under the terms and conditions of this Agreement which default by its nature, cannot be remedied; or, (c) engages directly or indirectly in any attempt to defraud the other Party. The effective termination of the Agreement shall take effect, as applicable, on the day following the expiration of the remediation period in cases set out in Section 18.2 (a) or immediately following receipt of the initial notice sent by the non-defaulting Party in cases set out in Section 18.2 (b) and (c).
Termination for insolvency. To the maximum extent permitted by Applicable Laws, either Party may terminate this Agreement, as of right upon written notice to the other Party, if a Party is unable to pay any and/or all of its debts as they become due or becomes insolvent or ceases to pay any and/or all of its debts as they mature in the ordinary course of business, or makes an assignment for the benefit of its creditors or is liquidated or dissolved or if any proceedings are commenced by, for or against it under any bankruptcy, insolvency, reorganization of debts or debtors relief law, or law providing for the appointment of a receiver or trustee in bankruptcy.
Escape’s right to terminate. Escape may also terminate the Agreement as of right upon written notice to Client: (a) If the Client has failed to make payment of any sums due under this Agreement within ten (10) days after notice thereof; (b) If the Client or any of its Authorized Users or employees is charge with a criminal offense that in Escape’s reasonable opinion would impair Escape’s reputation; (c) If the Client or any Authorized User violates any Escape Intellectual Property Rights and other rights relating to the Services. The effective termination of the Agreement shall take effect, as applicable, on the day following the expiration of the remediation period mentioned in Section 18.4 (a) or immediately following receipt of the initial notice sent by the non-defaulting Party in cases set out in Section 18.4 (b) and (c).
CONSEQUENCES OF TERMINATION AND EXPIRATION OF THE AGREEMENT
General principles. In the event of any termination or expiration of this Agreement for any reason whatsoever: (i) all rights and licenses granted by one Party to the other will immediately cease; (ii) each Party will promptly return to the other Party, or destroy and certify the destruction of, all of the other Party’s Confidential Information and materials as described hereafter; (iii) all payments owed by one Party to the other Party will become immediately due and payable. Expiration or termination of this Agreement shall not relieve Client of its obligation to pay all fees that have accrued or are otherwise owed by Client under this Agreement. Client shall not be entitled to any refund or credit for early cancellation or termination of any Services under this Agreement.
Restitution of Escape materials. Immediately upon expiration or termination of this Agreement for any reason whatsoever, the Client shall promptly (i) return to Escape all copies of Confidential Information, Documentation or any element provided by Escape to the Client or accessed by the Client under this Agreement, if any; and (ii) to the extent any such material cannot be returned to Escape, erase or destroy all copies of Confidential Information, Documentation and other materials under the Client’s control, including all copies that are fixed or running in machines controlled by the Client. In addition, an authorized representative of the Client shall certify in writing to Escape that the Client has complied with the requirements of this Section.
Restitution of Client’s Data. Before the expiry or termination of the Agreement for any reason whatsoever, the Client shall recover all the Client’s Data contained on the Platform. As from the date of expiry or termination of the Agreement, access to the Platform will be interrupted by Escape.
Surviving obligations and limitations. Neither the termination nor expiration of this Agreement shall release either Party from the obligation to pay any monies that may be owing to the other Party or operate to discharge any liability that had been incurred by either Party prior to any such termination or expiration. Termination of this Agreement, in part or in whole, will not limit either Party from pursuing other remedies available to it.
Records. During the term of this Agreement and for a period of three (3) years thereafter, Client shall establish and maintain accurate information records relating to the use of the Solution including, without limitation, the list of Authorized Users accessing and using the Solution. Escape shall have the right at any time, at its own expense and under reasonable conditions of time and place, to review and copy these records and/or the Client’s use of the Services.
Audit. Escape shall also verify Client’s compliance with the terms of the Agreement and may conduct an audit on Client’s premises during normal business hours, in a manner that minimizes disruption to its business. If the audit reveals unauthorized use of any of the Services, Client shall promptly pay to Escape any amounts owed as a result of such unauthorized use at the then current list price. In addition, Client shall reimburse Escape for the cost of such audit if such unauthorized use is five percent or greater of Client’s authorized use for the Services. The above is without prejudice to any other remedy that Escape may claim.
Export to Client of the Solution and Services is subject to all applicable countries’ export and re-export laws and regulations. Escape shall have no liability towards Client if necessary authorizations, licenses or approvals are not obtained.
Client shall not export or re-export, either directly or indirectly, the Solution and/or the Services, or any part thereof, or any process or service that is the direct product of the Solution and/or Services (the foregoing collectively referred to as the “Restricted Components”) when such export or re-export requires an export license or other governmental approval without first obtaining such license or approval.
Client hereby warrants to Escape that all Restricted Components shall not be used in violation of any applicable export laws, including for proliferation of any nuclear, chemical or biological weapons or missile delivery systems and shall not be diverted to any country, company or individual if prohibited by the applicable export laws of any country. If Client violates these provisions, Escape may terminate this Agreement and access to the Solution hereunder upon written notice.
ASSIGNMENT - SUBCONTRACTING
Any subcontract, assignment, delegation, or other transfer (including without limitation, by way of merger, acquisition, divestiture, or change of control or contribution in kind) of this Agreement, or any of Client’s rights, duties, benefits or obligations hereunder is subject to Escape’s prior written approval. Any attempt to do so without such consent is void. Any approved transfer of licenses may be subject to an adjustment of charge.
Escape may, at any time during the term of this Agreement, freely assign this Agreement to any of its Affiliates without Client’s consent. Client hereby already consents to such assignment, which shall as of principle take effect upon Escape notifying the assignment to the Client. Upon the effective date of the assignment of this Agreement, in the conditions mentioned above: (i) Escape shall be relieved of all rights, obligations and/or liabilities vis à vis the Client under the Agreement, arising in respect of events postdating the effective date of the assignment, and (ii) the Escape assignee Affiliate shall replaces Escape for the performance of the Agreement entered into with the Client.
Escape may not subcontract all or part of the Services without the prior written consent of the Client. Notwithstanding the foregoing, Escape is authorized to subcontract part of the Services to the subcontractors identified at https://escape.tech/providers. In the event of subcontracting, Escape remains fully liable for the proper performance of the subcontracted Services.
AGREEMENT ON EVIDENCE
In so far as may be required, in the relationship between the Parties, the Client acknowledges and agrees that information from the Client in the Platform shall be considered to be valid evidence:
- of the nature, substance, date and time of the Client’s Data recorded, read, modified and deleted on the Platform and of any information exchanged via the Platform;
- of the use of the Identifiers, and the dates and times of such use;
- of the nature, substance, date and time of the operations performed by the Client and its Authorized Users on the Platform;
- of the date, time and volume of the Scanned Endpoints and any information relating to the Scanned Endpoints Amount
Non solicitation. Except with the prior written consent of Escape, the Client undertakes not to, directly or indirectly offer to hire any employee or other such personnel of Escape who has directly participated in the performance of the Agreement or to use the services of any such person in any capacity whatsoever. This undertaking shall apply throughout the performance of the Agreement and for a further period of twenty-four (24) months from its expiry. In the event of the Client failing to comply with this obligation, it shall compensate Escape by the payment of an indemnity equal to twelve (12) months the total gross remuneration paid to the relevant person during the month preceding his departure.
Notices. Unless expressly stated otherwise, all notices under this Agreement shall be in writing.
Insurance. Each Party shall subscribe and maintain for the entire term of this Agreement, at its own cost, adequate insurance policies for amounts commensurate with the exposure of all the obligations contained in this Agreement.
Relationship of the Parties. Parties are independent contractors. This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Parties confirm that it is not their intention to confer any rights on any person who is not a party to this Agreement by virtue of its terms.
Waivers. Waiver by either Party of any default, or either Party's failure to enforce any of the terms and conditions of this Agreement shall not in any way affect, limit or waive such Party's right thereafter to enforce and compel strict performance of every term and condition hereof.
Severability. If any provision of this Agreement shall be declared invalid, unenforceable, or illegal by the courts of any jurisdiction to which it is subject, such provision may be severed and such invalidity, unenforceability or illegality shall not prejudice or affect the validity, enforceability or legality of the remaining provisions of this Agreement.
Communication. Unless otherwise instructed by the Client, Escape is authorized by the Client to use the name and logo of the Client in order to name the Client as client on a regular basis and to communicate on Escape’s website, social networks, communication and any other prospecting documents.
GOVERNING LAW AND JURISDICTION
This Agreement shall be governed and construed in accordance with French law.
The Commercial Court of Paris (“Tribunal de Commerce de Paris”) shall have exclusive jurisdiction to hear any dispute arising out of or in connection with the interpretation and/or performance of this Agreement, however, the Parties acknowledge and agree that in the event that the subject matter of any such dispute is Intellectual Property, Escape shall have the right to bring any such dispute before the French Civil Court having jurisdiction pursuant to the French Code of Civil Procedure ("Code de Procédure Civile"). Client acknowledges and agrees that the paragraph immediately above shall not prevent, restrict or otherwise limit in any manner, Escape's rights to seek equitable remedies, including injunctive relief before any competent court in any jurisdiction.
SERVICE LEVELS / SLAS
This Appendix is subject to and made a part of the attached General Terms. Client acknowledges and agrees that this Appendix 1, which reproduces the services levels applicable at the Effective Date of this Agreement and may be subject to changes as further indicated in Section 3.3 and 3.4. of the General Terms, is attached to this Agreement for information purposes only. Client shall regularly consult the Services Levels made available online at https://escape.tech/sla
The Platform provided by Escape and made available to the Client is governed by the following Service Levels:
*The Platform will be made available to the Client according to the average Availability Rate indicated above, measured over three-month period, provided however that the following shall not be considered downtime, and the time to perform the following shall not be included in the calculation of the Platform’s availability rate: (i) any maintenance services provided by Escape (preventive and corrective maintenance, planned and emergency maintenance interventions etc.); (ii) application of updates to the Platform; (iii) causes beyond Escape's control and/or action or omission, such as Force Majeure and/or Internet communication network failures and/or due to the act of the Client and/or a third party (excluding Escape's subcontractors).
The Platform shall be considered unavailable as soon as the Client has notified Escape in writing in accordance with Section 2 below.
Technical assistance and support
Escape will provide technical assistance to the Client through up to two (2) Client’s Contacts via a hotline which will be accessible:
- By phone at the following number +33 (0)6 82 80 65 65 which will be accessible from Monday to Friday from 9 AM to 9 PM;
- By email to the following address: firstname.lastname@example.org;
(hereafter, the "Opening Hours").
A Client’s Contact is a Client’s employee designated by Client to be the liaison between Client and Escape regarding any Anomalies and Services’ issues. A Client’s Contact may be replaced upon five (5) day's prior written notice to Escape.
Report of Anomalies.
Client’s Contacts may report Anomalies via the hotline provided by Escape under the conditions described in Section 2 above. In any event, the Client must confirm any reports of Anomalies to Escape by email without delay. In this context, the Client shall provide the information reasonably necessary for Escape to effectively identify and qualify the Anomaly and begin to address it, including, but not limited to, the following:
- A complete description of the Anomaly and the expected results;
- The reproducible test case that demonstrates the specific sequence that caused the Anomaly to occur;
- All available error and system files;
- The exact wording of all error messages encountered;
- Description of the particular circumstances surrounding the discovery of the Anomaly;
- Any additional information and cooperation reasonably required and requested by Escape.
Upon confirmation, Escape will diagnose the Anomaly and determine whether it is a Minor or Major Anomaly. Escape undertakes to respond to the Client and to correct the Anomaly within the deadlines indicated in Article II.2(e) below.
Categorization, Response and Repair Time.
Escape will intervene within the time limits of consideration and repair indicated below. The guaranteed repair time is the total time from the time the Anomaly is reported to the Provider by the Client until the Anomaly is repaired, either through a workaround or through a permanent fix.
Guaranteed Response Time (i.e, time limit for taking into account the Client's request)
Guaranteed Repair Time (i.e., time limit to correct the Anomaly)
Escape will respond during Opening Hours within 24 hours of the case being submitted by the Client
Escape will continuously work during Opening Hours until a workaround or a fix is provided to the Client OR
Escape will provide the Client with a workaround or a fix within a maximum of 5 days following the date on which the Client’s request has been taken into account.
Escape will respond during Opening Hours within 48 hours of the case being submitted by the Client
Next update of the Platform OR
Escape shall not be obliged to provide the Associated Maintenance Services and shall not incur any liability as a result in the following cases: i) refusal by the Client and/or the Authorized User concerned to cooperate with Escape in resolving Anomalies and in particular to respond to questions and requests for information; ii) use of the Services in a manner that does not comply with their purpose, Documentation and/or Escape's instructions ; iii) unauthorized modification of all or part of the Platform by the Client or an Authorized User; iv) Anomalies due to Internet communication network failures and/or due to the actions of a third party; v) Anomalies due to Force Majeure.
However, if the Client so requests, Escape may resolve, if possible, of the malfunctions and anomalies encountered in the cases listed above, at Escape's rate in effect on the date of intervention.
Client shall benefit from updates and functional developments of the Platform available during the term of the Agreement, carried out at the sole initiative of Escape. Corrections and upgrades to the Platform are subject to all the provisions of this Agreement. Client is hereby informed that Escape's interventions relating to these updates and upgrades may result in the Platform and the Services being temporarily unavailable.
Notwithstanding anything to the contrary, Escape will have no obligations related to maintenance and support, or responsibilities with respect to non-compliance with Service Levels caused by: (1) the use or functioning of the Services with third party products other than those specified in the Documentation; (2) use of the Services in breach of the Agreement or the Documentation; (3) any modification, customizations or enhancements of the Services by any person or entity other than Escape, (4) causes beyond the reasonable control of Escape (e.g., floods, fires, loss of electricity or other utilities), negligence of Client or any third party, operator error, attempted access, maintenance or other use by unauthorized persons, failure of or caused by any third party software, hardware, or data feeds, or failure or corruption of any database.