ARTICLE 1 – SCOPE OF APPLICATION – ENFORCEABILITY
Hyperspread, Société par Actions Simplifiée, a joint stock company listed with the Trade and Companies Register of Aix en Provence under the number 801069410, with company headquarters located at 1330 Rue Guillibert de la Lauzière – Europarc de Pichaury – Bat. B2 – 13090 Aix en Provence.
These General Terms and Conditions of Sale (hereinafter referred to as the « GTC ») govern the contractual relationship between Hyperspread (hereinafter referred to as the « Service Provider ») and its client (hereinafter referred to as the « Client ») (hereinafter referred to as the « Party » or « Parties »).
The Service Provider is the publisher of an IT solution called « Hyperspread », an SaaS marketing platform (hereinafter the « Platform »). The Platform is used by the Client to organise, manage and monitor relationships with the members of its sales network. To this end, the Platform provides the Client and the employees of its network members (hereinafter the « Users ») access to the various services offered therein (hereinafter the « Services »):
– Subscription licences for the Platform’s online services, Social, Market Place, Brief, Direct Marketing, Library and Presence Management (hereinafter « Licences »);
– The installation and configuration of the Platform in accordance with the Client’s requirements and the training of the Client’s main internal Users in the use of the Platform (hereinafter « Installation »);
– Additional services such as a hotline, training webinars, templates (customisation of media files), configurations, etc. enabling the Client to optimise its use of the Platform (hereinafter « Additional Services »);
– A specific IT development service, allowing the Client to develop one or more functions specific to its requirements on the Platform (hereinafter « Specific Developments »).
The Service Provider is free to decide the Services it offers, including those available on the Platform. The Service Provider is free to add or remove Services (without loss of functionality for the Client) without liability. In particular, the Service Provider reserves the right to make any changes required by law or regulations to the Platform and/or the Services at any time. The Service Provider will do its utmost to notify the Client of any changes to the Services.
The relationship between the Service Provider and the Client is governed by these GTCs, which constitute the legal basis applicable to all Services provided by the Service Provider to the Client. These GTCs were enclosed and sent to the Client together with the Service Provider’s quote. Consequently, the placing of an order with the Service Provider implies the Client’s full and unreserved acceptance of these GTCs and of the terms and conditions detailed in the quote, to the exclusion of any other general terms and conditions or documents such as prospectuses, catalogues or advertising brochures issued by either Party.
Any provisions derogating from these GTCs must be agreed in writing by both Parties. The Service Provider may modify the GTCs at any time, it being understood that any modification will be notified to the Client and will take effect one (1) month after receipt of the notification and will be applicable to any new orders.
Where applicable, special terms and conditions or a contract may be negotiated and agreed between the Parties and will supplement these GTCs and the quote.
The hierarchy of contract documents for all documents is as follows in descending order of priority (from most to least important):
1. The Special Conditions or contract (if applicable)
2. The Service Provider’s quote
3. These GTCs
4. The Client’s Order Form
ARTICLE 2 – ACCESS TO SERVICES
The Service Provider is providing the Client with the subscribed Services, a full list and detailed description of which can be found here (link).
The Platform is accessible by the Client at any time, 24 hours a day, 7 days a week, except during maintenance periods under the conditions set out below.
The Client accesses the Services under its own responsibility. Users can access the Platform from any computer, smartphone or tablet with the username and login details provided by the Service Provider. These details are personal and confidential.
The Client will receive login details for its administrator accounts. Administrator accounts will have the ability to create accounts for Users and assign roles to them. The Client is therefore solely responsible for the access permissions assigned to its account. The Client is the sole decision maker regarding the access permissions it grants and the management and security thereof. The Service Provider will bear no responsibility in this respect.
The Client is entirely responsible for the use of the aforementioned login details. The Client must ensure that only persons authorised by the Service Provider are able to access the Platform’s Services.
Any access to the Platform via a user account created for the Client will be deemed access by the Client.
The Client is hereby informed that the Platform can be accessed remotely via the Internet network from the Internet address communicated to the Client. The Client is aware of the technical hazards that may affect this network and lead to slowdowns or unavailability, making access impossible. The Service Provider cannot be held responsible for difficulties in accessing the Platform due to network disruptions.
The Service Provider will do its utmost to inform the Client in advance of any scheduled interruption to services. This excludes exceptional maintenance and critical security updates.
The Client hereby undertakes to use the Platform reasonably in accordance with the Service Provider’s practices and recommendations and the documentation provided.
ARTICLE 3 – INSTALLING THE PLATFORM :
The installation of the Platform and its acceptance test require the provision of information and documents, the list of which is available here (link). The Client has two (2) weeks from the date of acceptance of the quote to provide the Service Provider with the documents required to perform the Installation of the platform. The Service Provider will do its utmost to install the Platform within one (1) month from the date of the Client’s provision of these documents.
These time frames may be contractually modified, including in the quote. Subject to the Client’s compliance with the deadline for the provision of the documents and unless otherwise agreed by the Parties, the acceptance test date is set at forty-five (45) days after the date of acceptance of the quote by the Client. The Service Provider will keep the Client regularly informed about the progress of the Installation.
The Installation will be considered tacitly accepted by the Client if the Users use the Platform.
In the event of reluctance on the part of the Client regarding the acceptance test, the Client will have three (3) working days to notify the Service Provider in writing of any disagreement with an explanation of the reasons. In the absence of a response from the Client within this period, the acceptance test will be deemed complete and compliant with the Client’s expectations.
ARTICLE 4 – LICENCES
4.1 The Client will subscribe to a minimum number of Licences as indicated in the agreed quote.
The Client may automatically increase the number of Licences at any time under the same conditions by creating new sales outlets on the Platform. Licences concluded during a Period of time (as defined in Article 10 « Duration » below) are binding until the end of the current Period. They are automatically renewed for the subsequent periods.
The Client may terminate one or more Licences during the course of the contract by notifying the Service Provider by registered letter with acknowledgement of receipt at least three months before the end of the current Period. The termination will then take effect at the end of the current Period for the relevant Licence(s). However, it is hereby stipulated that the number of Licences may never be fewer than that agreed in the initial quote.
As the unit price of the Licences may change, the amount invoiced for the Licences may never be less than the amount agreed in the initial quote.
4.2 Notwithstanding the foregoing, the duration of Licences purchased for the « Presence Management » module is always a period of twelve (12) months from the date of subscription. Beyond this date, the duration will be in accordance with the current Period, and these Licences are renewable and terminable under the same conditions.
ARTICLE 5 – ADDITIONAL SERVICES AND SPECIFIC DEVELOPMENTS
At the Client’s request, the Service Provider may provide Additional Services or Specific Developments.
The Client will set out its requirements specifically and, on this basis, the Service Provider may make a technical and budgetary proposal valid for one (1) month from the date of issue, which the Client will be free to accept or decline.
Additional Services and Specific Developments will be subject to a separate agreement supplemented by these GTCs and including:
– A quote
– Specific technical specifications
– The acceptance test method
– The duration of the development guarantee
– The number of authorised major and minor modifications
ARTICLE 6 – SUPPORT AND MAINTENANCE
The Service Provider is responsible for providing support and corrective and ongoing maintenance services with regard to the Platform including technical upgrades and correction of anomalies.
The Client will send all requests by email to help@hyperspread.com.
The Service Provider will process requests between 9:00 am and 5:00 pm from Monday to Friday, excluding public holidays (in France).
The Client can follow the progress of its requests via a ticketing system provided by the Service Provider.
The Service Provider is not responsible for providing support and maintenance in the following cases:
– refusal of the Client to collaborate with the Service Provider in the resolution of anomalies and to respond to questions or requests for information
– using the Platform in a way that does not comply with its intended purpose or with the documentation
– failure of the Client to comply with its obligations under the Contract
– installation of any software package, program or operating system not compatible with the Platform
– breakdown of the Client’s electronic communication networks
– deliberate act of degradation, malice or sabotage
– deterioration due to a case of force majeure pursuant to Article 1218 of the French Civil Code or due to misuse of the Platform.
The performance of usual maintenance to the Platform may make the service temporarily unavailable. It will only be performed outside of French working hours and days.
ARTICLE 7 – PRICES AND PAYMENT
The Service Provider’s pricing terms for the provision of the Services and Licences are based on multiple criteria such as the duration of the obligation. These terms are specified in the quote.
● 7.1 Licences
7.1.1. Licences are costed according to point of sale (POS or POI) and are invoiced annually. If the Client wishes to be invoiced monthly, a 15% surcharge will be applied to the price of the Licences.
Licences for all points of sale will be invoiced annually and payable in advance. Licences purchased during the course of the contractual year will be invoiced on a pro rata basis until the end of the current Period.
7.1.2 In addition to the above, the « Direct Marketing » module includes a usage license subscribed to under the same conditions mentioned above.
However, the consumption of « Direct Marketing » credits will be invoiced according to the following conditions:
Unlimited Credits: Billed via direct debit – The unlimited credits option can be activated upon receipt of the direct debit mandate accompanied by a bank account statement. The client will then be debited according to their consumption at the end of each month.
Limited Credits: Upon receipt of the request for additional credits, the Client will receive an invoice to be paid upon receipt. Credits will be added upon receipt of payment, deviating from the provisions of Article 7.1.4.
Credits can be used throughout the duration of the License. Any credits not used during this period will not be refunded.
7.1.3 Notwithstanding the foregoing, Licences purchased for the « Presence Management » module will be invoiced in advance and in full for an initial period of 12 months. Beyond this period, they will be invoiced on a pro rata basis until the end of the Current Period as described in Article 10.
● 7.2 Installation and Additional Services
The price of the Installation and the Additional Services is fixed and these services are invoiced in advance and in full.
● 7.3 Specific Developments
Specific Developments will be invoiced according to the following schedule: 30% down payment when the quote is accepted and 70% upon the acceptance test of the Specific Developments. The Specific Developments can only begin after the down payment has been made.
● 7.4 Payment Deadline:
All prices are quoted exclusive of tax and are expressed and payable in Euros. The appropriate tax will be applied at the time of invoicing and the Client will be responsible for paying the invoice and all taxes.
Unless otherwise agreed, invoices are payable exactly thirty (30) days from the end of month of the date of issue or by direct debit on the 10th of the following month. In the event of a dispute over part of an invoice, the undisputed part must be paid in accordance with the conditions initially stipulated. No discount can be granted for early payment.
All expenses and any work not carried out at the Client’s request will be invoiced to the Client.
Without prejudice to any damages, failure by the Client to pay an invoice on the due date will automatically incur:
– A late payment penalty to be charged from the due date shown on the invoice until the day of actual payment, at a rate corresponding to the refinancing rate of the European Central Bank (ECB) on the date of the invoice and increased by ten points. These penalties will be rightfully payable from the first day on which the due date is exceeded.
– In accordance with Article D. 441-5 of the French Commercial Code, a fixed administration charge.
– Suspension of the Services and access to the Platform if no response to the prior formal notice is received at the end of a period of fifteen (15) working days.
ARTICLE 8 – INDEX ADJUSTMENTS
The prices of recurring services (licences, maintenance) will be revalued once a year, on each anniversary date of the contract, on the basis of the most recent Syntec index, according to the formula P1 = P0 x Is1/Is0, where:
P1: Revised price of the Services;
P0: Initial price of the Services;
Is1: most recent Syntec index published on the day of the revision;
Is0: Syntec index for the month in which the Contract was signed.
In the event of the unavailability of the index, the calculation will be based on the replacement of the SYNTEC index using the necessary correlation coefficient. In the absence of an index to replace the SYNTEC index, the Parties will use the closest index.
ARTICLE 9 – REFUSAL
The Service Provider reserves the right not to accept an order from the Client if the Service Provider has already encountered payment problems (non-payment or late payment) with the Client regarding one or more previous orders.
ARTICLE 10 – DURATION
● 10.1 The Contract is entered into by the Parties for a period of 12 months (the « Initial Period ») from the date the initial quote and the Licences are accepted by the Client. The Licences will begin on the date the Contract comes into force.
Upon expiry of the Initial Period, the Contract will be automatically renewed on each anniversary date for a further period of 12 months (the « Renewed Period »).
The Initial Period or the Renewed Period will hereinafter be referred to as the « Period ».
● 10.2 In the event that one of the Parties wishes to terminate the Contract, it must notify its intention to terminate by registered letter with acknowledgement of receipt sent to the registered office of the other Party at least three (3) months before the end of the Period, as evidenced by the postmark.
The termination will take full effect at the end of the Period when the Client will no longer be able to access the Services.
Notwithstanding the foregoing, the provisions of the Contract will continue to apply:
– Until the completion of the Additional Services or the Specific Developments
– During the initial term of the Presence Management Licence, which will not be less than twelve (12) months.
In the event of termination of the Contract by the Client pursuant to this Article (10.2), no credit note or reimbursement will be granted by the Service Provider for the Period.
ARTICLE 11 – TERMINATION
In the event of a breach by one of the Parties of its contractual obligations, the Contract may be rightfully terminated by the other Party if no response to the formal notice thereof, sent by registered letter with acknowledgement of receipt, has been received within fifteen (15) days of sending it.
The formal notice must indicate the fault or faults observed and the intention to invoke this clause.
Once the Contract has been terminated, the Client’s access to the Services will cease. The remuneration for the Services already performed at the time of termination will remain due.
The Parties have agreed that Articles 1224 et seq. of the French Civil Code relating to termination will not apply to the Contract. Each Party waives the provisions, and all rights relating thereto, of the aforementioned articles of the French Civil Code, the act of termination being in accordance with the provisions of the Contract.
ARTICLE 12 – REVERSIBILITY
In the event of termination of the contractual relationship, for whatever reason, the Service Provider undertakes to return, free of charge and at the Client’s first request made by registered letter with acknowledgement of receipt and within fifteen (15) days of the date of receipt of such request, all Client Data (as defined in Article 13 « Hosting and Security ») in its possession in a standard format that can be read without difficulty in an equivalent environment.
The Client must make this request no later than the expiry date of the Contract.
The Client must actively cooperate with the Service Provider to facilitate the recovery of the Data.
At the Client’s request, the Service Provider may provide additional technical assistance to the Client and/or to a third party designated by the Client, in accordance with the reversibility. These support services will be invoiced on the basis of an additional quote, at the Service Provider’s rate in force at the time of the request.
ARTICLE 13 – HOSTING AND SECURITY
All Client data created, implemented or modified using the Platform (hereinafter « the Data ») will be hosted in Europe in conditions suitable for their retention. The Service Provider will remain free to choose the technologies, hardware, servers (single or multiple) and the sites (location) used to provide this service. The list of web hosts is provided in the Hyperspread Privacy Policy.
The Service Provider, in accordance with the rules of the art, guarantees the durability of the security policy against any attack on the Data by third parties not authorised by the Client.
The Client is solely responsible for its internal security policy and the authentication, identification and permission policy of its Users whom it appoints under its own authority in accordance with the policy of its choice.
ARTICLE 14 – PROTECTION OF PERSONAL DATA
● 14.1 Processing of Client Data:
The Client, as part of its activities, will automatically process personal data (hereinafter the « Client Data ») as pursuant to Law No. 78-17 of 6 January 1978 on information technology, data files and civil liberties (hereinafter « Law No. 78- 17 ») and the General Data Protection Regulation (hereinafter the « GDPR »).
The Service Provider may have access to Client Data during maintenance work to or the setting up of the Services.
The Service Provider will process Client Data on behalf of the Client in order to provide the services covered by the Contract.
14.1.1 The Client hereby agrees, in the performance of the Contract, to: document in writing any instructions regarding the processing of Client Data by the Service Provider;
comply with the provisions of Law No. 78-17, the GDPR, the LCEN (French Law for Trust in the Digital Economy)and more generally with the regulations applicable in France;
supervise the processing of Client Data, carrying out audits in accordance with the terms and conditions previously decided with the Service Provider.
The Service Provider will not be liable for any failure by the Client to comply with the applicable legislation.
It is the Client’s responsibility to provide all relevant information to the data subjects at the time of data collection.
14.1.2 The Service Provider undertakes to take and maintain all necessary measures, including appropriate technical and organisational measures, to protect the security and confidentiality of all personal data entrusted to it by the Client in the performance of the Contract in order to prevent such data from being misrepresented, altered, damaged, distributed or accessed by unauthorised persons.
The Service Provider hereby undertakes to ensure that all persons authorised to process personal data on its behalf:
agree to respect the confidentiality of the data or are subject to an appropriate legal obligation of confidentiality;
receive the necessary training personal data protection.
In all cases, the Service Provider undertakes to comply with the applicable legal provisions relating to the conditions of processing and/or the destination of the data communicated to it by the Client or to which it will have access under the performance of the Contract.
In particular, the Service Provider undertakes to process personal data on the Client’s documented instruction only.
The Service Provider undertakes to use the personal data collected or to which it may have access solely for the purposes of the Contract.
The Service Provider undertakes to provide reasonable assistance to the Client in fulfilling its obligation to comply with any requests made by the data subjects to exercise their rights of access, rectification, deletion, opposition, limitation and portability of data.
The Service Provider undertakes, in light of the information communicated to it by the Client, to provide reasonable assistance to the Client in complying with its obligation to:
Notify the supervisory authority of any personal data breach;
Communicate any personal data breach to the data subject concerned;
Carry out a data protection impact assessment.
The Service Provider must provide the Client with all documentation necessary to demonstrate compliance with all its obligations and to allow inspections by the competent authorities or audits by the Client, under the conditions agreed with the Service Provider.
The Service Provider reserves the right to entrust the performance of all or part of the services under the Contract to one or more subsequent subcontractors. The list of subcontractors in use is available in the Platform. The Client acknowledges and expressly accepts the use of such subcontractors by the Service Provider.
● 14.2 Processing of data by the Service Provider as Data Controller
In addition, the Service Provider, in its dealings with the Client, may process personal data belonging to the Client’s members or Users on its own behalf.
As part of this, the Client and the Users will have the right to access and, if necessary, to rectify, delete or obtain and reuse their data. They also have the right to issue instructions as to the future use of their personal data in the event of their death.
In addition, Users may oppose for legitimate reasons the processing of their personal data or withdraw or limit their consent.
These rights may be exercised at any time by emailing the Service Provider at data@hyperspread.com
Users have the right to lodge a complaint with a supervisory authority.
The Service Provider may also collect and use anonymised aggregate data processed via the Platform for the purpose of improving the services offered by the Service Provider or for statistical purposes.
ARTICLE 15 – OBLIGATIONS OF THE PARTIES
● 15.1. Obligations of the Client
The Client undertakes not to undermine the Platform in any way whatsoever. The Client is thereby not authorised under any circumstances to decompile or analyse the Platform or its components or modules or to attempt to discover or modify any source code.
The Client undertakes not to publish, develop, or market any IT solutions, software, services or products similar to the Platform or likely to compete with those of the Service Provider.
The Client undertakes to respect all payment terms agreed with the Service Provider.
The Client expressly declares that it has received from the Service Provider all the information and instruction necessary to use the Platform and the Services and waives the right to seek the liability of the Service Provider as a result.
The Client undertakes to use the Platform only for its own needs or those of the service Users (for which it is responsible) and in accordance with the technical specifications contained in the documentation and the recommendations of the Service Provider (link).
The Client undertakes to cooperate closely with the Service Provider and to provide all information, documentation, services and all useful or necessary means for the performance of the Services and the use of the Platform and undertakes to make available to the Service Provider all information and personnel appointed for the performance of the Services so as to allow the Service Provider to meet its obligations.
The Platform offers several Services, applications and functionalities, listed above.
It is the Client’s responsibility to:
– fully understand the Platform’s functionalities in advance
– ensure that the Platform is compatible with its requirements on the basis of the information in the documentation provided
– possess the competence necessary to access and use the Platform
– ensure that all of its hardware and software, including the query software and Internet connection equipment, are compatible with and enable use of the Platform.
As the Platform will not affect any software programs or packages installed on the Client’s IT systems, the Service Provider cannot be held responsible for any malfunctioning of the Client’s software programs following the use of the Platform.
The Client will connect to the Platform from its client workstations using the means of telecommunication that comply with the regulations in force and for which it shall bear the cost.
● 15.2 Obligations of the Service Provider
As part of this Contract and the performance of the Services, the Service Provider undertakes to use all necessary means and to do its utmost to fulfil its duty in accordance with the state of the art. This obligation will not constitute an obligation of result as the Service Provider delivers the Services and the Platform as an obligation of means only.
ARTICLE 16 – GUARANTEES
The Service Provider undertakes to do its utmost to ensure that the Services and the Platform are provided in accordance with the quote.
Unless otherwise provided by law, all other guarantees, whether explicit or implied, are excluded.
The Service Provider will not be liable for any warranty, including when the Client has modified or caused to be modified the Platform and/or the Services or has used other services than those provided by the Service Provider, without the Service Provider’s prior written consent or when the Client or third parties have intervened in the hardware and/or software and systems for which the Services are provided or on which they are performed.
The Service Provider offers no guarantee that the Services or the Platform can be adapted specifically to the Client’s own requirements. Therefore, it is the Client’s responsibility to accurately assess its requirements, to evaluate the suitability of the Platform and the Services, and to ensure that it is in possession of the specific skills to use them and a compatible IT environment. The Client hereby acknowledges that it has received all the information necessary for this purpose.
The Service Provider is further unable to guarantee:
– that there will be no anomalies, errors and bugs that may affect the browsing on the Services and/or the Platform and/or the implementation of any functionality offered by the Services and/or the Platform;
– that there will be no interruptions or breakdowns to the operation of the Services and/or the Platform;
– full compatibility with the Client’s hardware or the system currently in place.
However, the Service Provider undertakes to maintain compatibility with the two latest versions of Google Chrome and Mozilla Firefox web browsers, as well as with the most recent versions of Apple and Android OS.
ARTICLE 17 – LIABILITY
● 17.1 Liability of the Service Provider:
The Service Provider’s liability will be limited to direct damages resulting from a defect in the Services or a breach of these GTCs.
In no event will the Service Provider be liable for indirect, incidental or special damages as defined by the case law of the French courts.
The Service Provider will not be liable for non-performance of the Contract in the event of force majeure as defined by French case law and the French Civil Code. The Service Provider will not be liable for any damage caused by a third party or due to misuse or non-compliant use by the Client of the Services and/or the Platform that is in violation of the instructions provided by the Service Provider or of the state of the art or best practice.
In particular, the Service Provider will not be liable for i) any damage or loss caused by improper use of the Platform and/or the Services by the Client and/or any third party, ii) any malfunction, error, inaccuracy or improper result attributable to improper, unauthorised or incompatible use of the Platform and/or the Services by the Client and/or third parties.
The Client hereby declares that he/she is aware of the characteristics and limits of the Internet network, its technical performance, the response times for consulting, querying or transferring data and the risks associated with communications security. The risks of data being altered or destroyed by viruses within the network will be managed by antivirus software. It is the Client’s responsibility to protect itself against these risks.
The Client acknowledges that in any event the liability of the Service Provider is limited to the amount paid by the Client to the Service Provider during the last 12 months.
17.2 Liability of the Client
The Client will be solely responsible for the Data and Content that will be distributed via the Platform and the Services.
The Client will indemnify the Service Provider against any action that may be brought against it in relation to the use of such Data and content.
The Client is solely responsible for any interactions with Users. In the event of conflict, the Service Provider will not be held liable.
ARTICLE 18 – INTELLECTUAL PROPERTY
18.1 The Platform, the Specific Developments, and all general intellectual property rights that may result from the performance of the services, will remain the exclusive property of the Service Provider, who is the sole owner and holds all the rights necessary to commercialise them and allow the use thereof.
The production files and sources remain the exclusive property of the Service Provider.
Consequently, the Client may not pledge them, transfer them for free or for payment, sub-license them or lend them for free or for payment. Furthermore, the Client undertakes to inform the Service Provider immediately of any infringement of which it becomes aware.
18.2 In consideration of the payment of the price specified in the quote, the Service Provider hereby grants the Client a personal, non-exclusive, non-transferable and non-licensable right to use the Platform, the Specific Developments, the settings and the results of the services provided, for the entire world and for the duration of the Contract.
This right of use is granted to the Client and its employees, but also to the Users whose access rights will be granted, managed and deleted by the Client under its sole responsibility.
18.3 Some elements or modules of the Platform are open source or belong to third parties. Their use is therefore subject to the conditions of use detailed in the licence signed with these third parties. The Client undertakes to respect the scope of this licence.
Should one or more of the licences with these third parties come to an end, for any reason whatsoever, and should the end of such licence(s) restrict the Client’s use of all or part of one or more modules of the Platform or of one or more Specific Developments, the Service Provider will inform the Client as soon as possible.
The Client may then request a renegotiation of the terms and conditions of use of the Platform and/or the Specific Development(s) in order to take into account the new restrictions of use.
18.4 The Client undertakes to use its right of use within the agreed limits. It undertakes not to infringe the intellectual property rights of the Service Provider.
In return, the Service Provider ensures that it owns (or has a licence to use) all such intellectual property rights, including the code for the Platform and the Services. It undertakes to ensure that the Platform and the Services provided do not infringe the rights of third parties. Consequently, it guarantees the Client against any claim by third parties of violations of property rights or of unfair competition due to the use of the Platform and the Services by the Client.
ARTICLE 19 – CONFIDENTIALITY
The Service Provider and the Client undertake to ensure that their employees and other relevant agents (including, for the Client, the service Users) maintain the confidentiality of any information obtained under this Contract. The existence of a business relationship between the Parties does not constitute confidential information.
The obligations stipulated in this article will continue to apply for a period of three (3) years after the end of the Contract.
The obligations stipulated in this article do not apply to information:
– already in the public domain at the time of its disclosure by the other Party or information that would enter the public domain after such disclosure where this would not result a breach of an obligation of confidentiality agreed by the party receiving it;
– that can be shown to have been brought to the knowledge of, or made accessible to, the recipient of the information prior to the other party disclosing it;
– that can be shown to have been lawfully disclosed by a third party not under a duty of confidentiality after being disclosed to the recipient by the other party;
– whose disclosure is required by law, a judicial decision or any other authority vested with the appropriate powers.
ARTICLE 20 – INSURANCE
Each of the Parties undertakes to maintain a valid insurance policy for the entire duration of the Contract, with a solvent insurance company, guaranteeing against damage that may occur to its property and personnel, as well as a policy covering its professional liability and the financial consequences of physical, material and immaterial damage for which it would be responsible, caused by any event or act of its employees and/or possible partner companies during the performance of the Contract.
ARTICLE 21 – STAFF MANAGEMENT
● 21.1 Management and competence
The Service Provider’s personnel assigned to the performance of the Contract will remain under the administrative control and the sole hierarchical and disciplinary authority of the Service Provider throughout the duration of the Contract. The Service Provider will be responsible for the supervision and management of its employees, including the delivery of services on the Client’s premises.
The Service Provider undertakes to provide sufficient staff with the required competence for the performance of the Contract.
● 21.2 Health and safety
The Service Provider undertakes to ensure that all personnel present on the Client’s premises comply with the Client’s internal regulations and the provisions applicable to external companies present on the Client’s premises, including those relating to health and safety. The Client for its part undertakes to bring these provisions to the attention of the Service Provider. The Client and the Service Provider will comply with the provisions of Decree No. 92158 of 20.02.1992 setting out the special health and safety requirements applicable to work carried out by an external company on the Client’s premises.
ARTICLE 22 – NON-SOLICITATION
The Parties waive the right to solicit, hire or have employed directly or through an intermediary, under any status whatsoever, any employee of the other Party assigned to the performance of the Services, regardless of their specialisation, even where the initial solicitation is made by the employee. This waiver is valid for the entire duration of the Contract then for one (1) year from the end of the Contract, for regardless of the reason.
ARTICLE 23 – ANTI-CORRUPTION
The Service Provider guarantees and declares to the Client for the entire duration of the Contract that:
– it is aware of all anti-corruption legislation applicable to this Contract and that it has implemented rules and procedures to comply with said legislation and to adapt to future changes in such legislation;
– neither the Service Provider nor any of the persons under its control (such controlled persons including but not limited to officers, employees and agents) has committed, or will commit any direct or indirect act of bribery for the benefit of a private person or a public official;
– It has put in place appropriate policies, systems, procedures and controls to prevent acts of bribery and to ensure that any evidence or suspicion of bribery is thoroughly investigated, addressed with appropriate diligence and reported to the Client. Evidence of the existence of such rules, systems, procedures and controls will be made available to the Client upon request within a reasonable time;
– the Service Provider is not prohibited (or treated as prohibited) by any governmental or international body from submitting bids to, contacting or working with that body because of actual or suspected bribery;
– records relating to its activities, including accounting records, are kept and retained in tact for the minimum legal period.
ARTICLE 24 – USE OF COMPANY NAME
The Client authorises the Service Provider to use its name and/or logo, to the exclusion of any other indication, as part of a list of clients that it may distribute to potential clients, on its website or the group’s website or in the group annual report. Any other use in any form whatsoever and for any reason whatsoever will require the prior written agreement of the Client.
ARTICLE 25 – SUBCONTRACTING
The Service Provider may subcontract all or part of the performance of the Services to subcontractors. In this case, the Service Provider will remain responsible for the delivery of the Services to the Client.
ARTICLE 26 – APPLICABLE LAW
The Contract is governed exclusively by French law.
ARTICLE 27 – JURISDICTION
In the event of any difficulty in the performance and/or interpretation of the Contract and before referring the matter to the competent courts, the Parties undertake to meet in order to resolve the dispute amicably.
The Parties will meet at the instigation of the most diligent Party within 8 days of the other Party receiving the letter requesting a conciliation. The agenda will be set by the Party instigating the conciliation.
In the event of failure of the amicable procedure after a period of one month, the Parties will regain their freedom of action, and competence is expressly attributed to the Commercial Courts within the jurisdiction of the Paris Court of Appeal, notwithstanding the introduction of third parties or third party proceedings, including urgent or preventive measures whether by application for summary proceedings or by petition.
ARTICLE 28 – GENERAL CLAUSES
28.1 Entire Contract: the Contract set outs all agreements and undertaking of the Parties with respect to its subject matter and supersedes any other prior written or oral agreement or undertaking or any information of any nature whatsoever given prior thereto with the same subject matter, which will be deemed null and void.
In the event that any of the provisions of this Contract is, for any reason whatsoever, deemed null and void, such nullity will not affect any other contractual provision.
The Parties will replace the aforesaid provision with a valid and enforceable provision, in accordance with legal or regulatory provisions, the effect of which will be as close as possible to the financial result or any other result intended by the Parties.
28.2 Language of the Contract: the Contract has been written in the French language. A foreign language translation may be provided for information. In the event of a contradiction, only the French version will prevail between the Parties.
28.3 Article headings: headings have been included in the Contract for practical reasons only. They must in no way be considered an integral part of the Contract or construed as limiting the scope of the articles to which they refer.
28.4 Contract on evidence: the Service Provider and the Client agree that all written documents, including electronic documents, exchanged between them, as well as all data including technical data, will be deemed authentic and will validly prove the content of their exchanges and their commitments. The Parties agree to use electronic signatures.
The dematerialised signature on the Contract is equivalent to the original between the parties.
28.5 No waiver/exercise of rights: the failure of either Party to exercise any of its rights under the Contract, or any delay by either Party in exercising such rights, will not constitute a waiver thereof.
Similarly, the partial exercise of a right or of only one of the legal remedies available to one of the Parties will not prevent the latter from exercising such right in full or from exhausting all legal remedies available to it.