For the purposes of these terms and conditions ("these Terms") the following words have the following meaning:
- "Application" means the Customer's application software to be tested on Java Product/Platform.
- “Application Package" means the application, the application documents and the submission documents which are submitted by the Customer to Capgemini.
- "Authorised Representative" means any director or other duly authorised employee of Capgemini or of the Customer.
- "Capgemini" means Capgemini France SAS, a company duly registered to the Registry of Trade and of Companies of PARIS under the number R.C.S. Paris B 328 781 786, having its seat at 6/8 rue Duret - 75017 PARIS.
- "Capgemini Company" means the holding company of Capgemini or any subsidiary of the holding company.
- "Contract" means these Terms and Conditions set out in this Testing Commission Contract, and available on the Capgemini web site. In order to accept these terms and conditions, the Customer has to choose the accept/reject option at the moment the application is submitted to the web site.
- "Customer" means a company to whom Capgemini supplies Services, duly represented by Authorised Representative. By accepting the terms of this Agreement, the Customer agree that is a professional of application software.
- "SUN" means Sun Microsystems Inc., a company incorporated in the United States of America whose registered office is at 4150 Network Circle, Santa Clara, CA 95054 USA.
- "Java Product/Platform" means the handset product or platform held by mobile phone manufacturers upon which an Application is to be tested.
- "Parties" means Capgemini and the Customer.
- "Party" means either Capgemini or the Customer.
- "Results" means the results supplied by Capgemini to the Customer in respect of testing carried out on the Application pursuant to this Contract.
- "Services" means services provided by Capgemini to the Customer who wish to obtain a right to use the Javaverified logo on their products. The Services conducted by Capgemini is to validate and certify the quality, functionality and interoperability of Customer products with various Java products.

This Contract constitutes the entire agreement between the Parties with respect to the subject matter contained herein. The Customer agrees that Capgemini shall only conduct the testing to ensure that the Application meets relevant criteria based on Unified Testing Initiative for J2ME application which may be specified by SUN from time to time. The Customer agrees that Capgemini is not accountable howsoever to the Customer or to any other party resulting from any malfunction whatsoever of Applications at any time prior to, during or after the testing carried out pursuant to this Contract. Except as set out above or elsewhere in this Contract, there are no other terms, or conditions and warranties whether express or implied, statutory or otherwise, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose and all representations, statements, negotiations, understandings and undertakings either written or oral made by Capgemini in respect of the Services and the Results and upon which the Customer has relied in entering into this Contract.

Capgemini may at any time request a Capgemini Company to act as its agent in the performance of this Contract.

Capgemini shall provide the Services without undue delay unless the Parties agree on a delivery schedule in writing at the time this Contract was entered into. In all cases, Capgemini shall only provide the Services after receipt of payment by the Customer in accordance with Clause 7.2 and provided always that in Capgemini's sole opinion, the Application Package is in order and that the Application has satisfied SUN’s suitability requirements. The customer expressly accepts that Capgemini can refuse to provide him the services, in particular at the request of SUN.

The Customer shall ensure and procure that all its employees and personnel cooperate fully and render all such assistance as may be required by Capgemini, its employees, agents and sub-contractors in the performance of this Contract on these Terms and the Customer shall give prompt attention to any matter raised by Capgemini relating to the obligations of the Customer under this Clause 7 and that all necessary data and information needed for the purposes of providing the Services shall be provided to Capgemini in a timely manner.

The Customer expressly acknowledge that they are aware of the technical and other risks inherent in the nature of the Services.

Neither Party excludes or limits its liability to the other Party for death or personal injury caused by its negligence.

Neither Party shall be liable to the other Party for any loss of profit, production, anticipated savings, goodwill or business opportunities or any type of indirect, economic or consequential loss even if that loss or damage was reasonably foreseeable or that Party was aware of the possibility of that loss or damage arising. Moreover, Capgemini shall not be liable in case of loss, damage, or destruction (included data) of the application, except in case of intentional fault proved by the Customer.

In any event, except as provided in Clauses 3.3 and 5.1, the total amount of the compensation that Capgemini may be required to pay to the Customer for any reason whatsoever, subject to the Customer proving negligence on the part of Capgemini , is hereby limited by the Parties to the amounts actually received by Capgemini or, in the case of non-payment, the amounts that ought to have been received by Capgemini, excluding reimbursement of expenses, under this Agreement.

Neither Party shall be liable for any claim made more than three (3) months after termination of this Contract or three (3) months after the date of  the Results, whichever is earlier.

The Customer shall indemnify and hold Capgemini harmless according to any claims involving product liability.

The Parties agree to treat in confidence the other's data documentation and information which is marked confidential or which is by its nature clearly confidential including without limitation information about or comprising the Application and the Results and the pricing thereof which information is deemed proprietary to Capgemini ("Confidential Information"). The Parties further agree not to disclose any Confidential Information to any other person other than its own employees under conditions of confidentiality and then only to the extent required for proper implementation and utilisation and the proper performance of this Contract. If Capgemini appoints a Capgemini Company to supply the Services or Results Capgemini may disclose such Confidential Information to that company to enable it to supply any Services or Results under the same conditions of confidentiality and the Customer agrees to observe the obligations of confidentiality with respect to such Capgemini Company. Nothing shall prevent Capgemini from using the knowledge and know-how gained in providing the Services in any combination or permutation for any other purpose.

Nothing contained herein shall be construed to impose a confidentiality obligation on a Party in respect of:
(a) any matter appearing in public literature or otherwise within the public domain unless the information is in the public domain as a result of a breach of this Contract or any Specific Agreement by that Party; or
(b) any information or knowledge possessed by that Party prior to disclosure to it by the other or rightfully acquired from sources other than the other Party; or
(c) any information or knowledge acquired in a bona fide arm's length transaction by the Party making the disclosure.

Capgemini reserves the right to sub-contract all or any part of its rights and obligations under these Terms or any Specific Agreement and any such sub-contractor may be passed such confidential information as may be necessary for such purpose.

Neither Party shall be deemed to be in breach of any obligations under this Clause to the extent that it discloses information:
(i) in accordance with any order, or direction of any court, arbitrator, governmental agency, or other judicial, quasi-judicial, regulatory, or public body, as required by law; or,
(ii) to its professional advisors where it is reasonably necessary to do so and where such professional advisors have also undertaken to observe the terms of this Clause.

The provisions of this Clause 4 shall continue after the termination of this Contract., during one (1) year.

Customer declares he owns all the rights on the Application and in particular the right to make Capgemini to provide the services on the Application. Thus, Customer warrants that the Services provided by Capgemini do not infringe any third party’s intellectual property rights. Customer shall, at its own expense, defend, indemnify and hold harmless Capgemini from and against any and all losses, costs, liabilities, damages and/or expenses (including without limitation, reasonable attorneys’ fess and expert witness fees) in connection with any third party claim from a party regarding intellectual property rights.

Capgemini acknowledges that it owns no copyright or other intellectual property rights in the Application including but not limited to copyright in documentation and programme in either eye readable or in machine readable form.

Customer acknowledges that it owns no copyright or other intellectual property rights in the Results whether in eye-readable or in machine-readable form. Upon payment by the Customer of all quotations and invoices by Capgemini under this Agreement, Capgemini shall grant to the Customer a perpetual, royalty-free right to use the Results for the purposes of further development of the Application or such reasonable needs of the Customer.

The intellectual property rights in all information, ideas, methods, solutions, devices, programs, materials, specifications, designs and all other documentation (together "the Material") created by Capgemini in the course of supplying the Services will be and will remain vested in Capgemini, and the Customer shall be granted separately defined user rights to the Material in favour of the Customer's reasonable needs.

The Customer shall not delete proprietary information or trade mark notices if any appearing on any documentation, Results or the Materials supplied to it by Capgemini at any time and that any copies of the same made by it under the provisions hereof shall carry a copyright notice in a form approved by Capgemini.

Upon any termination of this Contract, the Application Package, including all applications, samples, specimens, documents etc. provided to Capgemini for the purposes of this Contract shall not be returned to the Customer but shall be retained by Capgemini for archiving purposes for a period of one (1) year from the date of the Results and always subject to the confidentiality obligations set out in this Contract. The Application Package shall be destroyed after one (1) year from the date of the Results.

Capgemini shall return the Application Package only if so requested in writing by the Customer when the same were provided to Capgemini. All expenses incurred as a result of such return shall be borne by the Customer. Provided always that Capgemini shall retain a copy of the Application Package for archiving purposes for a period of one (1) year from the date of the Results and always subject to the confidentiality obligations set out in this Contract. Such copy of the Application Package shall be destroyedafter one (1) year from the date of the Results.

The Customer shall not be entitled to any compensation whatsoever if such applications, samples, specimens, documents etc. were destroyed, damaged or had deteriorated in the course of the provision of the Services.

The prices or fees chargeable by Capgemini in respect of the supply of Services are calculated with specific reference to the obligations undertaken and warranties and representations made by Capgemini.

Capgemini shall provide the Customer a quotation (whether by itself or any other Capgemini Company) setting out the estimate of the fees payable by the Customer prior to the commencement of the Services and details as to how payment should be made. The Customer shall pay in full such estimated fees within twenty-one (21) days of the date of the quotation and in any event, prior to the commencement of the Services.

If Capgemini is of the opinion that the estimated fees quoted to and paid by the Customer is insufficient, Capgemini shall as soon as reasonably possible notify the Customer in writing of any additional fees payable and the Customer shall pay the same within seven (7) days from such written notice.

Payment of all quotations and invoices shall be made within twenty-one (21) days of the date of such quotations and invoices. Capgemini shall have the right to charge interest from the quotation or invoice date on overdue quotes and invoices without further notice at twice the legal interest rate, calculated per day of continuing delay in payment from the due payment date until the date of effective payment.

Amounts payable by the Customer are exclusive of all taxes, duties levies or other deductions or withholdings which shall be the responsibility of the Customer.

Capgemini shall be entitled to withhold the Results until such time when the Customer has made all payments which are due and payable.

This Contract shall take effect from the formal acceptance by the Customer who has chosen the “accept” option and cumulatively form the receipt of the advance payment of the services by Capgemini. Except application of the following article 8.2, this Contract shall end when all the services covered by it shall have been providedby Capgemini and paid for in full by the Customer.

Without limitation, Capgemini shall be entitled by notice in writing, without prejudicing any rights contained herein, to terminate forthwith this Contract if any invoice raised by Capgemini is still outstanding after fourteen (14) days from its date and the Customer continues to be in default for fourteen (14) days after written notice of default has been given to it by Capgemini.

Neither Party will be liable for delay in performing obligations or for failure to perform obligations if the delay or failure resulted from circumstances beyond its reasonable control including but not limited to, act of God or governmental act, flood, fire, explosion, accident, civil commotion, industrial dispute, or transportation or communications problems, or impossibility of obtaining materials.

Any notice given under this Contract must be given in writing and sent or delivered by registered post to the other Party at the address stated in this Contract (or any other address notified for this purpose by that Party).

 No failure, delay or indulgence on the part of either Party in exercising any power or right under this Contract shall operate as a waiver of such power or right.

No single or partial exercise of any power or right by either Party shall preclude any other or further exercise thereof or the exercise of any other such power or right under this Contract.

If any provision of this Contract shall be held by a court of competent jurisdiction to be invalid or voidable such provision shall be struck out and the remainder thereof shall stand in full force and effect.

The Customer shall fully indemnify and hold Capgemini harmless in respect of any claims by third parties which are caused by or arise from any act or omission of Capgemini or of any employee, agent or sub-contractor carried out pursuant to instructions of the Customer.

In the event of there being any deficiency in the supply by Capgemini of any Services or Results, Capgemini shall always be afforded a reasonable opportunity to correct such deficiency.

Neither Party may assign this Contract or any of its rights and obligations hereunder without the prior written consent of the other provided that Capgemini shall not require consent for assignment to any Capgemini Company

Clause headings are inserted for convenience of reference only and shall have no effect in interpreting this Contract.

The Customer hereby authorises Capgemini to make public reference to the Customer's election of Capgemini's service line(s) and the nature of the services provided. Any publicity to be issued in connection with this Contract (including any dispute arising) shall only be issued subject to prior written consent from the Parties, such consent shall not be unreasonably withheld.

In the event of frustration of this Contract, each Party shall be relieved of the requirement to perform obligations as from the date of frustration and the Customer shall be obliged to pay Capgemini all sums already due and payable as at the date of frustration together with payment for all work done and all expenses incurred by Capgemini up to the date of frustration whether or not payment would otherwise have been due and payable as at that date.

No alteration or addition to these Terms shall be valid unless agreed in writing by the Authorised Representatives of both Parties.

Where the Customer issues a purchase order to Capgemini relating to the Services, the Customer agrees that unless otherwise agreed the terms of such purchase order shall not apply and such purchase order shall be accepted by Capgemini for the sole purpose of referencing invoices

THIS CONTRACT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH FRENCH LAW. ANY DISPUTE REGARDING THIS CONTRACTAND THE SERVICES PROVIDED SHALL BE SETTLED UNDER FRENCH COURTS.