General Terms & Conditions of Sale and Supply

Article 1 - DEFINITIONS

“Agreement”: Refers to all contractual documents constituting the documents listed in article 2 of FIME General Terms and Conditions.

“Certifying Authority”: Refers to the entity or company that manages in particular test specifications and accredits the laboratories or service providers.

“Chip Service”: Refers to any validation service related to a Certifying Authority to check the connection to the network, the integration of a terminal and/or an acquirer device within the network, the personalization of a card or any chip equipment, or to check a solution end-to-end.

“Consultancy or Development Service”: Refers to any consultancy or development service for which supply to the Customer is the responsibility of FIME in accordance with the Agreement. A Consultancy Service may, in particular, comprise, by way of example but not of limitation, any audit, definition of a migration plan, manufacturer assessment, definition of a process, analysis of a failure, analysis of a technical specification, drafting of a test plan or development assistance. A Development Service may also, in particular, comprise, by way of example but not of limitation, any development of software, hardware, method or schema.

“Customer”: Refers to the entity signatory to the Agreement entered into with FIME.

“Customer Equipment”: Refers to any equipment device or sample (such as in particular, but not limited to, smart card, smart card reader, automated teller machine, point of sale terminal, tag, key ring, watch, mobile telephone and electronic passport), which is tested for compliance.

“Customer Software”: Refers to any software program composed of a series of instructions to execute a process in or convertible to a format that can be run by a computer and saved on a physical expression medium and in any code format and the associated Documentation, that is, the software information collected in documentary form, belonging to the Customer or a third party and which is tested for compliance.

“Deliverable”: Refers to the tangible media (physical or magnetic such as CDs, DVDs, presentations or reports) delivered by FIME to the Customer by post or by email and which includes the Test and Validation Service result and/or report corresponding to the Test and Validation Service carried out by FIME in accordance with the provisions in the Agreement. Deliverable may include especially any table or graph of a Test and Validation Service result and/or report by application of the Agreement and may be protected or not by an Intellectual Property Right.

“Documentation”: Refers to the written documentation required to use, install or operate a Customer Equipment, Product, Software and/or Customer Software.

“FIME”: Refers to the registered trademark owned by FIME SA, and used by the Service Provider.

“FIME General Terms and Conditions”: Refers to this document.

“Intellectual Property Right”: Refers to any copyright, patent, design patent, registered design, design right, utility model, trademark, service mark, trade secret, know how, database right, moral right, confidential information, trade or business name, domain name, and any other right of a similar nature including industrial and proprietary right and other similar protected right in any state or jurisdiction together with all registrations, applications to register and rights to apply for registration of any of the aforementioned rights and any licenses of or in respect of such rights.

“Issuer”: Refers to an entity that is responsible for issuing cards.

“Letter of Approval”: Refers to the official notification from the Certifying Authority that the Customer has successfully met the requirements of the related Test and Validation Service.

“Manufacturer”: Refers to the assembler, manufacturer or producer of a Product.

“Network Related Services”: Refers to the French société anonyme [public limited company] Network Related Services, having share capital of Euros 820,624.05, recorded under No. 345 039 416 at the RCS [Companies’ Register] of Grenoble and having its registered office at 195 rue Lavoisier Zirst - 38330 Montbonnot-Saint-Martin, France.

“Open Source Software”: Refers to any software, including any modification, upgrade, derived work, version or correction, governed by the general terms and conditions of a license:

• Certified by OSI (Cf. list of these licenses on: http://www.opensource.org/licenses/), and/or,

• In accordance with the freedoms of the Free Software Foundation (hereinafter referred to as “FSF”), the definition of which is found on the following website: http://www.fsf.org/.

“Order”: Refers to the Customer's order for the provision and/or maintenance of Service(s), Product(s) and/or Software by FIME.

“Order Form”: Refers to the order form by which the Customer places an Order, in accordance with article 3 of FIME General Terms and Conditions, with FIME for the supply of Service(s), Product(s) and/or Software.

“Party”: Refers to the Customer or to the Service Provider.

“Product”: Refers to any Test Tool, product, material and/or device as well as related Documentation and the Software that comes loaded on to the aforementioned Product, built, manufactured or produced by FIME and/or by a third party and for which supply to the Customer is the responsibility of FIME in accordance with the Agreement.

“Publisher”: Refers to the Software editor, manufacturer or producer.

“Service”: Refers to any service provision for which supply to the Customer is the responsibility of FIME in accordance with the Agreement, such as Test and Validation Service or Consultancy or Development Service.

“Service Iteration”: Refers to the process of performing a cycle of Test and Validation Services defined in the Technical and Commercial Offer and/or Order Form.

“Service Provider”: Refers to the company named in the Order Form for the supply and/or maintenance Service(s), Product(s) and/or Software and corresponding Deliverables to the Customer and which is a direct or indirect subsidiary of Network Related Services, such as, but not limited to, FIME SA, Feima Ltd Taiwan Branch or Silicomp Canada. In the Agreement, the Service Provider shall also be referred to by using its trademark “FIME”.

“Software”: Refers to any software program composed of a series of instructions to execute a process in or convertible to a format that can be run by a computer and saved on a physical expression medium and in any code format and the associated Documentation, that is, the software information collected in documentary form, belonging to FIME or a third party and for which supply to the Customer, in the form of a user license, is the responsibility of FIME or the third party concerned in accordance with the Agreement.

“Specifications”: Refers to the written requirements which describe, amongst other details, the scope, objectives, constraints, specific needs, stages, performance criteria, technical and functional specifications, deliverables, acceptance process and all other information specifically connected to performance of the Agreement. In the event that the Services should concern Customer Equipment and/or Customer Software, the Specifications shall, in particular, comprise all information necessary to enable use of such Customer Equipment and/or Customer Software. In the event of Test and Validation Services, the Specifications define the test session requested by the Customer, constituting an integral part of the Order Form, the special conditions in relation to the Customer Equipment and/or Customer Software to be tested, the desired time-frames for carrying out the Test and Validation Services and the supply of the corresponding Deliverables. Specifications shall contain the information needed by FIME to carry out the Test and Validation Services on the representative samples of the Customer Equipment and/or Customer Software in question in accordance with the Order Form and the user manual for the Customer Equipment and/or Customer Software and the administrative documents that relate to the test session and are defined by the Certifying Authorities or by the laboratory in question.

“Taxes and Duties”: Refers to (i) any taxes applicable on turnover, such as value added tax, sales tax or service tax, (ii) withholding taxes applicable on payments made by the Customer, (iii) customs and excise duties as well as other import duties and fees, and (iv) local applicable legal or regulatory levies based on turnover.

“Technical and Commercial Offer”: Refers to any offer sent by FIME in response to the Customer’s request and specifying the nature, price and conditions for the provision of the Service(s), Product(s) and/or Software requested by the Customer.

“Test and Validation Service”: Refers to any Service of test, including Chip Services, carried out by FIME for the Customer in accordance with the Agreement with a view to testing and/or validating Customer Equipment’s and/or Customer Software’s quality, interoperability, performance, security or compliance.

“Test Tool”: Refers to any Product of test delivered by FIME to the Customer in accordance with the Agreement with a view to testing Customer Equipment’s and/or Customer Software’s quality, interoperability or compliance, and all ancillary elements, products and services thereof, including any related Product and/or Software, Documentation, device and/or material composing or accompanying such Test Tool whether on disk, on any other media or in any other form.

“Working Day”: Refers to any normal working day excluding bank holidays, public holidays and weekends in the locations where FIME shall perform and/or supply Service(s), Product(s) and/or Software and corresponding Deliverables to the Customer, and/or carry out their maintenance, in accordance with the corresponding Order Form.

“Working Hour”: Refers to any normal working hour excluding bank holidays, public holidays and weekends in the locations where FIME shall perform and/or supply Service(s), Product(s) and/or Software and corresponding Deliverables to the Customer, and/or carry out their maintenance, in accordance with the corresponding Order Form.

Article 2 - PURPOSE OF THE AGREEMENT - CONTRACTUAL DOCUMENTS

The purpose of the Agreement is to define the legal, technical and commercial conditions for the supply of Service(s), Product(s) and/or Software, which the Customer orders from FIME in accordance with the Order Form.

The Agreement is composed, in decreasing order of importance, of the following documents: the Technical and Commercial Offer, FIME General Terms and Conditions, the Order Form accepted by the Parties and, where applicable, the Specifications. If there is any divergence or contradiction the document with higher priority shall take precedence. However, the Order Form can override FIME General Terms and Conditions if FIME gives its written express consent.

The Customer may not rely on any stipulation of its own general or special terms and conditions or on any prior correspondence or commercial proposals related to the same subject matter as the Agreement.

Article 3 - ORDER FORM

Any supply of a Service, Product and/or Software by FIME to the Customer is subject to an Order Form being issued and accepted by the Parties.

The Order Form may either consists in : (i) FIME’s Order Form signed by the Customer and which includes FIME’s Technical and Commercial Offer, or, (ii) in case the related Service(s), Product(s) and/or Software are proposed by FIME in its online catalogue, FIME’s online Order Form approved by the Customer on FIME’s web site using a double click, or, (iii) the Order Form placed by the Customer after negotiation between FIME and the Customer and which includes also FIME’s Technical and Commercial Offer.

The Order Form sets out the definitive specific terms and conditions by virtue of which the Customer places the Order with FIME for the supply and/or maintenance of Service(s), Product(s) and/or Software, and must in every instance, in order to be valid, be subject to an acknowledgement of receipt sent by FIME via e-mail or any other written communication to the Customer. In the absence of such an acknowledgment sent by FIME, such an Order Form shall be considered null and void.

When the Order Form is issued by the Customer (in writing or electronically), upon receipt of such Order Form, and unless there is any reservation or non-compliance in the Order Form, FIME shall send to the Customer, as quickly as possible, its acceptance of this Order Form. The acknowledgment of receipt and acceptance of the Order Form may be sent by e-mail by FIME, and such email shall be considered as having the value of a signature. If FIME does not respond within period of fifteen (15) days after receipt, the Order Form issued by the Customer shall be considered to be accepted by FIME.

By signing, placing and/or approving any Order Form the Customer indicates his complete acceptance of FIME General Terms and Conditions.

Article 4 - OBLIGATIONS OF THE CUSTOMER

The Customer hereby accepts to use the Service(s), Product(s) and/or Software and corresponding Deliverables and Documentation exclusively for the purpose of testing or analyzing or reviewing Customer Equipment and/or Customer Software.

The Customer declares that it acknowledges that the Certifying Authorities may amend their procedures and specifications on test environments at any time. The Customer is responsible for keeping itself informed with regard to any changes in procedures and specifications on test environments.

Should the Customer require specific procedures or modifications to the environment from that normally specified by the relevant Certifying Authority, it shall inform FIME of such requirements at the least two (2) Working Days prior to the date planned for starting performance of the Agreement.

The Customer agrees to comply with all legislation and regulations that apply in terms of restriction on the use, import, resale or export (specifically insofar as concerns the rules applying to the control of final destination) applying to the Service(s), Product(s) and/or Software and corresponding Deliverables and Documentation supplied and/or made available in accordance with the Agreement.

The Customer agrees not to solicit, recruit or cause to be recruited, directly or indirectly, any member of FIME’s personnel or that of a company affiliated to FIME, during the whole period of the Agreement as well as for a further period of twelve (12) months following the end thereof, irrespective of the reason.

In the event of non-observance of this commitment, the Customer will pay FIME, without prejudice to application of the non-competition clauses provided as the case may be in the contract of employment of the employee concerned, financial compensation equivalent to the fifty per cent (50%) of the gross payments, all charges included, made in respect of the remuneration of the employee in question over the twelve (12) months preceding his/her departure.

Article 5 - CONDITIONS FOR THE PROVISION AND ACCEPTANCE OF CONSULTANCY OR DEVELOPMENT SERVICES AND TEST AND VALIDATION SERVICES

FIME shall provide the Consultancy or Development Services or Test and Validation Services constituting the subject of the Order Form issued by the Customer in accordance with the Specifications and the applicable procedures and specifications as stated in the Order Form or that apply as defined by the competent Certifying Authorities for test environments.

By mutual agreement between FIME and the Customer, it is recognized and accepted that this method of providing Consultancy or Development Services or Test and Validation Services necessarily has a limited scope with regard to the Specifications and the applicable procedures and technical conditions or the Test and Validation Services in question, in the test environment specified in the specifications on test environments that apply, as defined by the competent Certifying Authorities.

Upon completion of the provision of Consultancy or Development Services or Test and Validation Services, FIME will issue an acceptance report for the said provision addressed to the Customer. The Customer shall have sixty (60) Working Days for Consultancy or Development Services, and fifteen (15) Working Days for Test and Validation Services, counting from the date of issuance of said acceptance report, to:

- state the unqualified acceptance of the said Consultancy or Development Services or Test and Validation Services, by returning the Acceptance Report, duly signed, to FIME, or,

- state acceptance of the said Consultancy or Development Services or Test and Validation Services subject to reservation, stating on the acceptance report, duly signed, the nature and reason for such qualification. FIME shall then have one (1) month to carry out the necessary correction(s). In the event that FIME should not be able to make the necessary correction(s) within the said period of one (1) month, the Parties shall agree on a solution to be implemented as soon as possible.

In the absence of a response from the Customer within the abovementioned period, acceptance of the Consultancy or Development Services or Test and Validation Services shall be considered not to be subject to any reserve.

Article 6 - CONDITIONS FOR THE PROVISION AND ACCEPTANCE OF PRODUCTS AND SOFTWARE

The obligations of FIME with respect to the loading, transport and delivery of the Product(s) and/or Software ordered by the Customer, as well as risk transfer and insurances, are defined by the respective Incoterms as specified in the Order Form. The address of delivery of the Product(s) and/or Software will be specified in the Order Form.

At the time of delivery of the Product(s) and/or Software ordered, the Customer undertakes to sign the corresponding delivery slip produced by the transport agent.

The Customer is required to check the state of repair and compliance of the Product(s) and/or Software ordered at the time of delivery and to notify by registered letter with acknowledgment of receipt to the carrier and to FIME within three (3) days subsequent to this delivery date any reservation regarding the Product(s) and/or Software ordered and delivered. Otherwise, the Customer shall be deprived of any recourse for damages that the aforementioned Product(s) and/or Software might have sustained during transport or delivery.

The Customer may, within a maximum lead-time of three (3) days following the date of delivery, decide to reject the Product(s) and/or Software ordered which do not comply with the Agreement. In this case, the Customer will send to FIME written notice indicating that this Product(s) and/or Software have been refused and specifying the reasons for this refusal. The Product(s) and/or Software concerned must be replaced at the expense of FIME.

Furthermore, unless otherwise specifically stated on the Order Form, the transfer of ownership to the Customer of the Product(s) (apart from Software), and, except the Intellectual Property Rights attached to, shall take place once the Customer has fully settled all the sums payable to FIME, as stated on the Order Form for the supply of the corresponding Product(s).

Article 7 - TECHNICAL AND COMMERCIAL OFFERS FOR THE PROVISION OF CONSULTANCY OR DEVELOPMENT SERVICES AND TEST AND VALIDATION SERVICES

The Customer shall request Consultancy or Development Services or Test and Validation Services from FIME in writing. Upon receiving a written request, FIME shall send the Customer a written Technical and Commercial Offer in the form of an estimate for any Test and Validation Service appearing in FIME's catalogue of Test and Validation Services, or a sales proposal for Consultancy or Development Services or for a particular Test and Validation Service (customized Test and Validation Service). Technical and Commercial Offers shall be valid for two (2) months from the date on which they were sent by FIME.

The Customer shall, upon reception of the Technical and Commercial Offer and prior to commencement of the Consultancy or Development Services or Test and Validation Services under consideration, send FIME the pertinent Order Form, which shall be issued in accordance with the relevant Technical and Commercial Offer.

The Customer may also, if so desired, return the pertinent Technical and Commercial Offer to FIME, having accepted and signed it in agreement without any amendment. In that case, FIME’s Technical and Commercial Offer, accepted and signed by the Customer, shall be considered to be equivalent to an Order Form.

Any Order Form that does not conform in all respects with FIME’s relevant Technical and Commercial Offer sent to the Customer by FIME must be signed by the latter in agreement. In the absence of a signature by FIME, such Order Form shall be considered null and void.

The particular characteristics of some Consultancy or Development Services or Test and Validation Services may give rise to special conditions that should be signed and returned by the Customer, together with the Order Form signed in agreement.

Article 8 - CONDITIONS FOR RESERVING AND CANCELLING CONSULTANCY OR DEVELOPMENT SERVICES AND TEST AND VALIDATION SERVICES

For certain Services as specified in the Technical and Commercial Offer, the Customer may provisionally reserve a date with FIME for Consultancy or Development Services or Test and Validation Services, if the technical documents described in the procedure in question have been provided by the Customer beforehand. The Customer recognizes that this procedure may be different from one Certifying Authority to the next and that the procedure is described in the documents available from FIME for the Certifying Authority in question. Unless otherwise stipulated in the pertinent Technical and Commercial Offer and/or Order Form, any provisional reservation of a date for Consultancy or Development Services or Test and Validation Services will be valid for ten (10) Working Days after the corresponding acceptance has been sent to the Customer by FIME. After this period, it will automatically be cancelled if FIME has not received an Order Form from the Customer in accordance with the conditions contained in the Agreement. Consequently, it is FIME’s receipt of the Customer’s Order Form that confirms the reservation.

Unless otherwise stipulated in the pertinent Technical and Commercial Offer and/or Order Form, any Consultancy or Development Service or Test and Validation Service cancelled by the Customer up to five (5) Working Days before the date on which it is to be carried out will be invoiced at ten percent (10%) of the amount of the corresponding Order. If the Customer cancels an Order Form up to forty eight (48) Working Hours before the date fixed for carrying out the corresponding Consultancy or Development Service or Test and Validation Service, twenty percent (20%) of the amount of the corresponding Order will be invoiced to the Customer and if any Order is cancelled within forty eight (48) Working Hours of the date fixed, fifty percent (50%) of the amount of the corresponding Order will be invoiced. The entire amount of the corresponding Order will be due in the event that a Consultancy or Development Service or Test and Validation Service is cancelled without any advance notice.

Article 9 - SCHEDULING CONSULTANCY OR DEVELOPMENT SERVICES AND TEST AND VALIDATION SERVICES

When the corresponding Service requires a reservation of a time slot, the Customer undertakes to send FIME the representative samples of the Customer Equipment and/or Customer Software in question, as well as the Specifications needed to carry out the Consultancy or Development Services or Test and Validation Services forming the purpose of the Order Form at least two (2) Working Days before the date fixed to start the Consultancy or Development Services or Test and Validation Services. Failure to send these samples and Specifications within the period defined above, or if the samples and/or Specifications are not usable, FIME reserves the right to postpone the date that the Consultancy or Development Services or Test and Validation Services forming the purpose of the Order will be carried out, after it has informed the Customer by email, confirmed by registered letter with acknowledgement of receipt in the event of an additional period of more than four (4) weeks.

Subject to FIME receiving the above-mentioned representative samples of the Customer Equipment and/or Customer Software in question, as well as the Specifications needed to carry out the Consultancy or Development Services or Test and Validation Services forming the purpose of the Order within the period defined above, the Consultancy or Development Services or Test and Validation Services will be carried out by FIME within the periods defined on the Order Form.

In the event that the time frame for FIME completing the Test and Validation Services for the Customer as defined on the Order Form do not satisfy the Customer, FIME may then propose that the Test and Validation Services are started within forty eight (48) Working Hours of receipt of the representative samples of the Customer Equipment and/or Customer Software in question, as well as the Specifications needed to carry out the Test and Validation Services forming the purpose of the Order, in return for an increase in the price payable by the Customer as described in the pertinent Technical and Commercial Offer and/or Order Form.

Article 10 - CONDITIONS FOR THE PROVISION AND ACCEPTANCE OF DELIVERABLES

The responsibilities and obligations of FIME with respect to the loading, transport and delivery of the Deliverables, as well as the transfer of risk and insurances, are defined by the respective Incoterms as specified in the Order Form.

Furthermore, unless otherwise specifically stated on the Order Form, the transfer of ownership to the Customer of the Deliverables, excluding the Intellectual Property Rights of the Deliverables, shall take place only once the Customer has fully settled all of the sums payable to FIME in respect to the relevant Order Form.

Article 11 - PRICES

The prices for the Service(s), Product(s) and/or Software are specified on the Order Form.

FIME reserves the right to change its prices at any time. However, it is agreed that the prices that appear on the Order Form shall be the only prices that apply to the Customer for the Service(s), Product(s) and/or Software specified on such Order Form.

For any Order over thirty thousand (30,000) Euros, a deposit of thirty percent (30%) of the total amount of the Order must be paid by the Customer before the date defined in the Order Form to start the supply of Service(s), Product(s) and/or Software specified on the Order Form and upon reception of the deposit invoice.

Unless otherwise stipulated on the Order Form, invoices shall be drawn up within three (3) Working Days of the Service(s), Product(s) and/or Software being supplied to the Customer in accordance with the Agreement. The invoice shall be payable within thirty (30) days from the date on which it was drafted.

Should the Customer or the third party payer fail to pay on the due date in whole or in part of an invoice, a late payment surcharge will be automatically applied to the outstanding amounts owed without formal notice being required. This surcharge is calculated by applying an annual interest rate of fifteen per cent (15 %) per annum, to the amount of the remaining sums due, Taxes and Duties included. The starting point for the calculation of the aforementioned penalties shall be the day subsequent to the due date of the invoice.

These penalties are due notwithstanding the facility for FIME to automatically in accordance with the terms of article 15 hereafter, after formal notice sent by registered letter with acknowledgment of receipt that remains unheeded for fifteen (15) days, suspend the performance and/or supply of the Service(s), Product(s) and/or Software ordered until full payment of the invoice or terminate the Agreement, in whole or in part, without prejudice to any of its other rights.

In the event of a risk concerning the solvency of the Customer and/or repeated payment incidents, FIME reserves the right to amend these payment conditions and/or request that the Customer set up warranties. Advance payment is requested for new customers and for customers whose outstanding invoices have been transferred by FIME to a third party credit collection company. FIME reserves the right to refuse to deliver new Service(s), Product(s) and/or Software to customers who have outstanding account balances in excess of thirty (30) days.

Prices for the Service(s), Product(s) and/or Software that appear on the Order Form do not include the costs for shipping of such Service(s), Product(s) and/or Software (including the corresponding Deliverables and Documentation), which are payable by the Customer in accordance with the Incoterms stated on the Order Form.

In addition, the prices for the Services do not include the costs for shipping the representative samples of the Customer Equipment and/or Customer Software in question to FIME or the Documentation needed to provide Services such as Test and Validation Services in accordance with the provisions in the Agreement. In the same way, any costs relating to FIME shipping such Customer Equipment and/or Customer Software or samples and the Documentation back to the Customer shall be payable by the Customer in accordance with the Incoterms specified on the Order Form.

The Customer may appoint a third party as payer. The appointment of a third party as payer does not exempt, in case of failure or delay of such third party payer, the Customer from its payment obligations, the Customer remaining jointly and severally liable with such third party of all payment obligations in accordance with the Agreement. Any invoice sent by FIME to a third party payer shall mention both the name and address of the Customer, in its quality of issuer of the Order Form, together with the name and address of the third party payer.

At least one Service Iteration is required for the Chip Services. A Chip Services project which has been inactive for more than three (3) months will be closed and any applicable Service Iteration fees in addition to the base fee will be invoiced at this time.

Article 12 - SERVICE ITERATIONS AND DELIVERY OF THE LETTER OF APPROVAL

The Test and Validation Services are designed to ensure that the Customer Equipment and/or Customer Software comply with the applicable requirements of the Certifying Authority. As such, it may be required to perform the Test and Validation Services in an iterative fashion.

The Certifying Authority is solely empowered to determine if the Customer has met the requirements of the Test and Validation Services and should receive a Letter of Approval, or whether a further Service Iteration is required. Failure of any of the tests included in the Test and Validation Services requires a new Service Iteration. FIME will provide any technical information related to these services to the Certifying Authority as required for the delivery of the Letter of Approval. The Customer will be informed by FIME’s technical delivery teams of the need for a new Service Iteration prior to starting the new Service Iteration.

Article 13 - REPRESENTATIONS

FIME hereby declares and warrants that it has the right to supply and invoice the Service(s), Product(s) and/or Software that appear on the Order Form, and that it has not concluded, nor shall it conclude, any undertakings that contradict this right.

The Customer declares that it has knowledge of the Service(s), Product(s) and/or Software information, including their potential, provided by FIME and/or by the relevant Certifying Authorities, and that it has information necessary for it to be able to conclude the Agreement.

Article 14 - TAX STIPULATIONS

14.1 Prices in this Agreement have been quoted exclusive of any Taxes and Duties, including VAT or any comparable Tax, relating to such Agreement. Any Taxes and Duties, including but not limited to VAT and withholding Taxes, relating to this Agreement shall be solely borne by the Customer who will pay them to the relevant tax administration under the applicable legislation. As a consequence, the amount to be paid to FIME shall in all cases be equal to what FIME would have received if none of the above-mentioned Taxes had been deducted, withheld or paid for. Were FIME to be made to pay for any of the above-mentioned Taxes, the Customer will pay back the Euro equivalent of such Taxes to FIME within thirty (30) days after FIME sent a reimbursement claim or an invoice to the Customer. In case a double tax treaty would provide for a reduced Tax rate or a Tax exemption, FIME will, upon request from the Customer, provide all documentation contemplated for the application of the treaty. If any withholding Tax must be paid in relation to this Agreement, evidence of such payment signed by the competent Tax authority must be sent to FIME as soon as possible.

14.2. FIME’s country VAT exemption conditions (subject to completion of legal conditions): The Customer will, prior to any invoicing, deliver to FIME a certificate issued by the relevant authority proving that he is considered as a resident for tax purposes in the country where he is established. The Customer who is established in an EC member state in which he is subject to VAT will also, prior to any invoicing, deliver to FIME his VAT identification number and a certificate issued by the relevant authority proving that he is treated as a VAT taxable person in the member state where he is established. In the absence of the requested documents, FIME may issue invoices including VAT. In case his situation might change during the period of validity of this Agreement, the Customer commits himself to inform FIME accordingly so as to make it possible for FIME to invoice the applicable VAT. In any case, any chargeable VAT relating to this Agreement shall be solely borne by the Customer, together with interest and penalties if applicable.

14.3. Foreign Customer’s permanent establishment in Provider’s country: The Customer whose business is, or might in the future be, established outside FIME’s country certifies that he has not, or will not have, a permanent establishment (fixed place) in FIME’s country to the benefit of which this Agreement is executed. If this statement is no longer accurate during the period of validity of this Agreement, the Customer commits itself to inform FIME accordingly so as to make it possible for FIME to invoice the applicable VAT. In any case, any chargeable VAT relating to this Agreement shall be solely borne by the Customer, together with interest and penalties if applicable.

14.4. Permanent establishment of the Customer outside FIME’s country: In case the execution of this Agreement benefits a permanent establishment the Customer might have outside FIME’s country, the VAT treatment of such execution will, upon written and detailed request from the Customer and if FIME agrees to it, be determined according to territoriality rules applicable between FIME’s country and the country where such permanent establishment is located. In case the Tax administration might successfully challenge this VAT treatment, the Customer will bear the cost of chargeable VAT, as well as interest and penalties if applicable.

Article 15 - OWNERSHIP – INTELLECTUAL PROPERTY RIGHTS

15.1. The Customer and/or the relevant third party publishers, manufacturers or producers shall remain the exclusive owners of all their respective Intellectual Property Rights related to the Customer Equipment and/or Customer Software and corresponding Documentation, in the widest possible sense of the term, for the full duration of said rights and for the whole world. Subject to the license granted in accordance with article 15.2 hereunder nothing in the Agreement operates to assign or transfer to FIME any title in, or ownership of, any Intellectual Property Rights in the Customer Equipment and/or Customer Software and corresponding Documentation.

15.2. The Customer grants to FIME a non-exclusive, non-transferable, non-sublicensable, royalty-free license for the term of the Agreement to use such Customer Equipment and/or Customer Software and corresponding Documentation and the related Intellectual Property Rights solely for the purpose of performing the Service(s) in accordance with the terms and conditions of the Agreement. FIME shall not use, develop or make available the Customer Equipment and/or Customer Software, or any part thereof, for any purpose other than the performance of the Service(s) in accordance with the Agreement.

15.3. FIME, the Certifying Authorities and/or the relevant third party Manufacturers or Publishers of the Service(s), Product(s) and/or Software shall remain the exclusive owners of all their respective Intellectual Property Rights related to the Service(s), Product(s) and/or Software and corresponding Deliverables and Documentation, in the widest possible sense of the term, for the full duration of said rights and for the whole world as the Agreement does not provide for any transfer of title of these rights.

15.4. In consideration for the remuneration determined in article 11 of FIME General Terms and Conditions, FIME, the Certifying Authorities and/or the relevant third party Manufacturers or Publishers concerned grant the Customer a right of use of the Intellectual Property Rights concerning the Service(s), Product(s) and/or Software and corresponding Deliverables and Documentation supplied to the Customer in accordance with the Agreement.

Such right of use of these Intellectual Property Rights is granted to the Customer on a personal, non-exclusive and non-transferable basis for its needs within the framework of its activity and for the terms of legal protection of the Intellectual Property Rights concerned in the countries where these Service(s), Product(s) and/or Software and corresponding Deliverables and Documentation have been provided. The Customer cannot therefore, without the prior written authorization of FIME, pledge, assign, sell, lease, give under license, communicate or lend, whether payable or free of charge, transmit, publish, disclose, show or make available in any other way, the Intellectual Property Rights concerning these Service(s), Product(s) and/or Software and corresponding Deliverables and Documentation supplied to the Customer in accordance with the Agreement. Such prior written agreement on the part of FIME may be granted, in particular, when the Customer’s request appears justified and is not likely to create a prejudicial situation for FIME.

With respect to Software, with the exception of backup copies, the Customer undertakes not to reproduce and/or distribute the Software, including the related Documentation. The Customer shall also refrain from, based on all or part of a piece of Software, related Documentation or any copy, making or having made any modification, performing any act of reverse engineering, translation, adaptation, dismantling, disassembly, use for the purposes of competitive analysis or creating derivative works, except within the conditions and limits strictly defined by law.

With respect to third parties Product(s) and/or Software, this right of use is granted in accordance with the conditions of the licenses granted by the third parties Manufacturers and Publishers concerned that the Customer undertakes to abide by. If the conditions of the licenses of the third parties Manufacturers and Publishers concerned are not included in the Agreement, they shall be provided at the time of delivery of the Product(s) and/or Software concerned or shall be accessible directly by the Customer from said third parties Manufacturers and Publishers. In case of contradiction between the conditions of this article 15 and the conditions of the licenses granted by the third parties Manufacturers and Publishers concerned, the conditions of the licenses granted by the third parties Manufacturers and Publishers concerned shall take precedence.

15.5. The ownership of the Deliverables, except the Intellectual Property Rights attached to the Deliverables, shall be transferred to the Customer. The Parties agree in advance that the Customer may copy, reproduce, publish or disclose the Deliverables to any third parties except to a competitor of FIME and that each Party may communicate the Deliverables to the Certifying Authorities concerned as part of the regular certification procedures of the Customer Equipment and/or Customer Software which have been the subject of Test and Validation Service(s) carried out by FIME for the Customer in accordance with the Agreement. For the purpose of the Agreement, is considered to be a competitor of FIME, any person, firm or enterprise conducting a business or providing or supporting a product or service substantially similar to any of FIME’s business or FIME’s products and services regardless of technology or standard.

15.6. The Customer recognizes that the Service(s), Product(s) and/or Software and corresponding Deliverables and Documentation are likely to include certain Open Source Software which may in particular authorize the user to, amongst others, copy, modify and redistribute certain programs, or certain program parts, and to access the source code. In the case of inclusion of Open Source Software, FIME shall inform the Customer thereof and the Parties undertake to comply with all requirements and/or obligations of the license applicable to this Open Source Software.

Article 16 - INTELLECTUAL PROPERTY INDEMNIFICATION

16.1. FIME represents that it is the legitimate holder of all Intellectual Property Rights or has acquired all the corresponding rights necessary for performance of the Agreement.

16.2. The conditions of warranty of non-infringement and indemnification applicable to third parties Product(s) and/or Software shall be those granted in this matter by the third parties Manufacturers and Publishers concerned and the Customer undertakes not to take any action against FIME in this respect. If these conditions of warranty of non-infringement and indemnification are not shown in the Agreement, they shall be provided at the time of delivery and/or installation of this third party Product(s) and/or Software or shall be directly accessible by the Customer from these third parties Manufacturers and Publishers concerned.

16.3. FIME warranties the Customer against any complaint by a third party made against it according to which the use by the Customer of a Service, Product, Software and/or corresponding Deliverable and Documentation (referred to hereafter as “FIME Element”) infringes a third party’s patent or copyright in the country in which this FIME Element has been delivered. In this respect, FIME undertakes to defend and hold harmless the Customer for damages it is ordered to pay by a definitive judgment, ruling on such a complaint filed against the Customer, subject to the Customer: (i) informing FIME immediately of the complaint in question, (ii) granting FIME the exclusive authority to defend or compromise against said complaint, (iii) providing to FIME all useful information in its possession, and, (iv) fully cooperating and assisting FIME in the defence of said complaint.

If a FIME Element leads to, or if FIME considers that a FIME Element is likely to lead to a complaint for infringement of a patent or copyright, FIME may choose: (i) to obtain the rights authorizing the use of this FIME Element by the Customer, (ii) to replace or modify part or all of this FIME Element so it is no longer infringing, or, if (i) or (ii) are not reasonably possible, (iii) to terminate the part of the Agreement concerned by this FIME Element, and the Customer must then stop any use of this FIME Element and FIME shall, as compensation for the loss sustained, pay the Customer a sum equal to a maximum of the sum paid by the latter for the infringing FIME Element, this being the only and exclusive action that the Customer may take against FIME for said termination.

16.4. No warranty of non-infringement shall be granted to the Customer if the Customer uses the Service, Product, Software and/or corresponding Deliverable and Documentation in a manner that does not comply with the Agreement and in particular in combination, association or use with any product, equipment or element not supplied or specified by FIME, in a modified state not authorized by FIME or in a manner other than that for which they were designed, if the infringement could have been avoided had such a use not been made by the Customer.

Nor does FIME warrant the Service, Product, Software and/or corresponding Deliverable and Documentation produced and/or supplied by it in the context of carrying out the Order against any complaint for infringement of a patent or copyright, based on the use of the applicable procedures or specifications for the test environment, as defined by the competent Certifying Authorities. The warranty and compensation conditions relating to Intellectual Property Rights (notably of non-infringement) applicable in these circumstances will be expressly limited to those agreed by the competent Certifying Authorities which the Customer is familiar with.

16.5. In any case, the Parties agree that FIME’s liability pursuant to this article 16 shall be expressly limited to the liability ceiling stated in article 22 of FIME General Terms and Conditions.

The provisions of this article 16 represent the Customer's sole and exclusive redress and FIME’s full and entire liability in relation to any infringement of third Party patents or copyrights.

Article 17 - CONFIDENTIALITY

Each Party will, within the scope of the implementation of the Agreement, be likely to receive from the other Party information that is confidential (referred to hereafter as “Confidential Information”). Such Confidential Information shall only include information which is clearly identified as being confidential. The said Confidential Information shall not include information that (i) is in the public domain or that is, or becomes, publicly available without a breach of this undertaking, (ii) was known to the other Party before it was communicated to it by the disclosing Party, (iii) is developed independently by the other Party, (iv) is disclosed as a result of a legal obligation.

The Parties agree to keep the other Party’s Confidential Information confidential and not to disclose it throughout the entire period of performance of the Agreement and for an additional period of two (2) years after the expiry of the Agreement.

In particular, FIME makes the undertaking to the Customer that it shall provide the Consultancy or Development Services or Test and Validation Services and supply the corresponding Deliverables whilst complying with all requirements regarding the confidentiality of the information the Customer should need to provide to FIME during performance of the Agreement.

Each Party undertakes to ensure that this obligation shall be complied with by any subcontractors, consultants and/or designated representatives that may have access to the other Party’s Confidential Information. Moreover, each Party undertakes to ensure that those of its employees having access to the other Party’s Confidential Information shall be held to comply with such obligation, either by means of the application of statutory and regulatory provisions inherent to their status or by means of the signature of individual confidentiality undertakings.

However, FIME reserves the right freely and at all times during performance of the Agreement to transmit to its affiliates, during the implementation of the Agreement, any information enabling appreciation of the Customer’s financial capabilities.

Failure by one or other of the Parties to abide by this duty of confidentiality may lead to their contractual liability being invoked.

Article 18 - REFERENCE - COMMUNICATION

The Customer agrees that FIME may, subject to the provisions of article 17 of FIME General Terms and Conditions, use the Agreement as a professional reference in its internal and external communications materials.

The Customer authorizes FIME to use its name as commercial reference in internal and external communications media.

Article 19 - FORCE MAJEURE

If an event of force majeure, as defined by the competent courts and/or applicable laws, should render it impossible for one of the Parties to fulfil its obligations, the Parties’ respective obligations shall initially be suspended for the duration of the said event of force majeure.

If such suspension should last for more than thirty (30) days, the Order Form affected by the event of force majeure may automatically be rescinded by the Party whose obligations are directly affected by the event of force majeure, without either Party being entitled to claim any damages or other compensation from the other Parties as a result of such suspension and subsequent rescission.

In case the Service(s), Product(s), Software ordered were paid for prior to actually supplying such Service(s), Product(s), Software, those payments shall be refunded to Customer.

Article 20 - WARRANTY

20.1. As from the date on which the Test Tools are shipped and for a period of one (1) month or more as specified in the Order Form, FIME shall provide the Customer with technical support for the Test Tools. This technical support shall be supplied during the Working Hours and Working Days, by telephone, fax or e-mail, in accordance with the provisions specified on the Order Form. FIME undertakes to respond to any request from the Customer for technical support within a maximum of two (2) Working Days.

FIME warrants that the Test Tools supplied to the Customer shall comply with the Order Form.

FIME does not warrant that the Test Tool shall be supplied without error, but if it can be demonstrated, within ninety (90) days from its shipment date, that a Test Tool contains an error or a fault or that it manifestly does not correspond to the Documentation, FIME shall make every reasonable effort to correct this error or fault, or shall replace the Test Tool free of charge. FIME undertakes to repair or exchange the faulty Test Tool returned to FIME’s technical service within a maximum of ten (10) Working Days of FIME’s technical service receiving this Test Tool. This undertaking on the part of FIME shall only be valid if the Hardware has always been used in accordance with the instructions for use and for the purposes provided for by the Agreement.

The nature, limits and scope of the warranty for each Test Tool are described in more detail in the Order Form.

During the warranty period, the cost for shipping the Customer's Test Tool to FIME’s technical service must be paid by the Customer, whereas the costs for shipping the Test Tool from FIME’s technical service to the Customer shall be paid by FIME.

20.2. FIME warrants that the Services and Deliverables shall be supplied in accordance with the Agreement and to the rules of law in force at the time of the provision of such Services and supply of Deliverables.

FIME does not warrant that the Services and Deliverables shall be carried out and supplied error free, but if it is demonstrated, within six (6) months for Services apart from Test and Validation Services and thirty (30) Working Days for Test and Validation Services, counting from the date of delivery, that a Service or a Deliverable contains an error or fault or that it manifestly does not correspond to the Order, FIME shall, as soon as possible, make all reasonable efforts to correct such error or fault or replace such Service or Deliverable free of charge within a maximum period of sixty (60) Working Days. The above undertaking by FIME shall only be valid if the Service or Deliverable in question has always been used in accordance with the instructions for use and with the purposes provided for by the Agreement.

The nature, limitations and scope of the warranty for each Service and Deliverable are described in more detail on the Order Form.

During the warranty period, the cost of shipping the Deliverables from the Customer to FIME’s technical department shall be paid for by the Customer, whereas the costs for shipping the Deliverables from FIME’s technical department to the Customer shall be paid for by FIME.

The amount of the warranty payable by FIME for any Service or Deliverable acknowledged by FIME as being faulty shall not, however, exceed the amount of the Order.

FIME excludes any express or implicit warranty not provided for in FIME General Terms and Conditions.

FIME also excludes any warranty, express or implied, relating to the use of applicable test environment procedures and specifications, as defined by the competent Certifying Authorities, FIME warranting only that the Test and Validation Services and Deliverables shall be carried out and supplied in accordance with said procedures and specifications. The warranty conditions for said test environment procedures and specifications shall be expressly limited to those accorded in this respect by the competent Certifying Authorities and which the Customer acknowledges it is familiar with.

Article 21 - MAINTENANCE

The Customer may place an Order for the maintenance of the Test Tools for a period of one (1) year following the expiration of the warranty period defined in article 20 of FIME General Terms and Conditions. The part of the corresponding Agreement covering the maintenance period is tacitly renewable for successive periods of one (1) year unless terminated by either Party subject to a prior written notice issued according to the terms and conditions of article 27 of FIME General Terms and Conditions under at least two (2) months prior to the relevant expiry date.

In the course of this maintenance period, and subject to the prior payment of all corresponding invoices, FIME shall provide maintenance conditions for the Test Tools (both the Software and the hardware) that are similar to those provided during the warranty period set forth in article 20 of FIME General Terms and Conditions.

FIME shall draw up the invoice for maintenance on the Order on an annual basis, on the anniversary date of the reception of said Order. The prices for this maintenance, set out on the corresponding Order Form, are subject to modification. These modifications must be notified to the Customer beforehand and may not occur more than once during each twelve (12) month period. FIME shall notify the Customer of any modifications to prices at least thirty (30) days before the price modifications come into effect.

Article 22 - LIABILITY

Considering the amount of technicality involved in the execution of the Agreement, FIME is bound by an obligation of due care and its liability may only be invoked in the event of duly proven negligence on its part. FIME shall only be held liable for proven misconduct in performing the Agreement if it has caused personal, direct and certain damages to the Customer. FIME shall not assume indirect or accessory damages, in other words, those that do not result directly from its failure to perform the Agreement, including but not limited to: damages for loss of profit, revenue or opportunity, operating loss, business disruption or other economic or pecuniary loss, loss of information or data, damage to the Customer’s reputation.

In any case, the Customer’s right to compensation in the event of FIME’s failure to perform the Agreement or any omission or non-fulfilment of a representation, or the implementation of any warranty stipulated in the Agreement shall be limited to the total amount of the sums actually paid by the Customer to FIME for the Service(s), Product(s) and/or Software corresponding to the fact causing the damages concerned. Furthermore, the cumulative compensation amounts as described hereinabove that FIME may thus be required to pay to the Customer cannot exceed the total value of the Agreement as specified in the Order Form. The Customer and his insurers waive the right to take any action against FIME and his insurers above this limit.

Generally speaking, FIME may not be held liable in the following cases: (i) due to the Customer’s non-compliance with the technical specifications, recommendations and conditions for the use of Service(s), Product(s) and/or Software ordered, or (ii) service interruption owing to a maintenance operation pursuant scheduled jointly by the Parties, or (iii) in the event of force majeure as set forth in article 19 of FIME General Terms and Conditions or (iv) due to a third Party other than a sub-contractor or provider of FIME, or (v) on account of the nature or the content of messages or information dispatched by or hosted in the Service(s), Product(s) and/or Software ordered.

FIME hereby represents that it has taken out and shall undertake to maintain valid insurance policies required to cover the risks that might arise during performance of the Agreement.

Article 23 - EFFECTIVE DATE AND TERM

The Agreement shall take effect on the date of acceptance of the Order Form by the Customer and FIME in accordance with the provisions of article 3 of FIME General Terms & Conditions, for the term set in said Order Form, unless extended by mutual agreement between the Parties.

Article 24 - TERMINATION – SUSPENSION

24.1. In the event of a Party’s breach of a major obligation of the Agreement which was the subject of formal notice to address this breach sent by registered letter with acknowledgment of receipt and that remains unheeded for thirty (30) days from its notice date, the other Party will then have the option to terminate automatically the Agreement, in whole or in part, by registered letter with acknowledgment of receipt, without prejudice to any of its other rights. The implementation of the termination article does not exclude, as applicable, the defaulting Party being held liable in accordance with the terms of the Agreement.

24.2. Each Party may automatically terminate the Agreement upon written notification if the other Party should become insolvent or be declared bankrupt, or enter into an arrangement with its creditors, or should be the subject of liquidation.

24.3. Furthermore, without prejudice to the provisions of articles 24.1 and 24.2 of FIME General Terms & Conditions, if the Customer fails to fulfil its obligations pursuant to the Agreement, FIME may, automatically, after formal notice sent by registered letter with acknowledgment of receipt that remains unheeded for fifteen (15) days, either: (i) suspend performance of the provision of Service(s), Product(s), Software ordered, or, (ii) modify, insofar as necessary to enable FIME to fulfil its own obligations, the characteristics, lead-times and prices defined in the Agreement for the provision of the Service(s), Product(s), Software ordered.

In the event that a maintenance Service of one (1) year, renewable, has formed the basis for an Order by the Customer at the same time as the Order of the Test Tools, the Agreement shall continue during this maintenance period unless one Party notifies to the other that it desires the termination of the maintenance Service, within a period of three (3) months preceding the anniversary date of the Agreement that corresponds to this maintenance Service.

Within seven (7) days of the termination of the Agreement for breach of this Agreement by the Customer, the Customer must, depending on FIME's choice, return or destroy all copies, forms and parts of the Test Tools concerned by the Agreement, and shall certify in writing to FIME that this has been carried out and that the Customer no longer has possession or control either of the Test Tools or of other copies of these Tools.

Article 25 - SUBCONTRACTING

FIME is entitled to sub-contract all or part of the provision of Service(s), Product(s) and/or Software ordered and remains liable vis-à-vis the Customer for the performance of the Agreement.

Article 26 - ASSIGNMENT

Neither Party may assign or transfer all or part of its rights and obligations under the Agreement unless it receives the prior agreement of the other Party.

However, if FIME informs the Customer, it shall be freely entitled to assign all or part of its right and obligations under the Agreement, in any or by any arrangements whatsoever to an entity in which Network Related Services or France Telecom (i) directly or indirectly holds more than fifty percent (50%) of the voting rights in the general meeting of shareholders or (ii) holds the right to appoint the majority of members of the board of directors or a body performing a similar function.

Article 27 - NOTIFICATION

Unless otherwise provided for in the Agreement, any notice hereunder shall be sent to the address that appears on the Order Form to the other Party by (a) prepaid registered express mail; or (b) electronically signed email, with request for acknowledgement of receipt; or (c) fax sent to the other Party’s fax number as mentioned on the Order Form, and subject to a hard copy version being sent by post immediately afterwards with the correct fax transmission slip to the address that appears on the Order Form. Any written notice made in accordance with (a) shall be deemed to have been received three (3) Working Days after it has been sent by email. Any written notice made in accordance with (b) or (c) shall be deemed to have been received one (1) Working Day after it has been sent by email or by fax.

Article 28 - APPLICABLE LAW AND COMPETENT JURISDICTION

The validity, interpretation and performance of the Agreement shall be governed by the laws of the country where the Service Provider’s head office is registered, as stipulated in the Order Form.

Should an amiable agreement fail to be reached, any difficulty relating to the validity, application or interpretation of the Agreement shall be brought before the competent courts in the country where FIME’s head office is registered, as stated in the Order Form.

Article 29 - ENTIRE AGREEEMENT

The provisions of the Agreement constitute the entirety of the Agreement between the Parties and supersede and replace all prior arrangements between the Parties pertaining to the subject matter of this Agreement. The Customer may not exercise any terms of its own general or special conditions or any prior correspondence or commercial proposals related to the same subject matter as that of the Agreement.

Neither Party shall be held to comply with any change(s) to the Agreement unless recorded in a written amendment executed by the Parties.

Article 30 - WAIVER

Should either Party choose not to enforce one or more stipulations of the Agreement, this shall not, in any circumstance, be construed as a waiver by that Party of enforcement of such stipulation(s) at a later date.

Article 31 - NULLITY – PARTIAL INVALIDITY

Should any terms of the Agreement be found invalid or inapplicable for any reason whatsoever, including on account of an applicable law or regulation, the Parties shall remain bound by the remaining terms of the Agreement and shall endeavour to remedy the inapplicable articles in the spirit as that which presided over the drafting of the Agreement.

Article 32 - AGREEMENT REGARDING PROOF

The Parties agree to consider messages received by fax or by electronic means, and more generally any electronic documents exchanged between the Parties, as original documents, in other words, as having the same value as that conferred upon an original document. The Parties agree to preserve faxes or electronic documents in such a way that they are able to constitute accurate and lasting copies.