BOOST MY MAIL, a simplified joint stock company with a capital of €100,000.00, with its head office at 10 Boulevard du Zénith, Saint-Herblain (44800), registered in the Nantes Trade and Companies Register under number 835 398 272, represented by A5Groupe (hereinafter referred to as the “Supplier”), is the publisher of an innovative solution for the management of email signature blocks intended exclusively for professionals, named “Boost My Mail” (hereinafter referred to as the “Solution”).
Depending on the offer chosen, the Solution enables the Supplier’s professional customers to implement one or more homogeneous signature blocks for their employees and manage communication banners in email footers.
The Supplier provides the Solution as an online service in SaaS (Software as a Service) mode, enabling its professional customers to use its features remotely, through a web browser and their email system, in exchange for payment of a periodic fee.
The Supplier makes all essential information relating to the Solution and its offers available to professionals interested in the Solution, on its website www.boostmymail.com,. The Supplier is also at their disposal to provide any additional information and answer their questions.
Any professional interested in the Solution is therefore responsible for consulting the available information and, if necessary, obtaining further information from the Supplier, in order to ensure that the Solution is suited to their needs, prior to entering into a contract with the Supplier in accordance with the following terms and conditions.
ARTICLE 1. FORMATION OF THE CONTRACT
These general terms of service (hereinafter the “GTS”) and the Special Conditions relating to the offer chosen, duration of the contract, number of the Solution’s users and amount of the periodic fee are systematically presented and subject to the express acceptance of all professionals when creating their accounts on the Supplier’s website www.boostmymail.com.
Acceptance of the GTS and the Special Conditions forms the contract (hereinafter the “Contract”) between the Supplier and the professional identified by the information provided by the latter on this occasion (hereinafter the “Customer”).
In the event of any inconsistency between the provisions of the GTS and the Special Conditions, the provisions of the GTS shall prevail.
The Contract constitutes the entirety of the commitments existing between the Parties. It replaces and cancels all previous oral or written commitments relating to the Contract’s subject, as well as all previous contractual documents that may apply to this subject, in particular the Customer’s General Purchasing Conditions.
ARTICLE 2. DEFINITIONS
Capitalised terms in the Contract, whether used in the singular or plural, shall have the meanings set forth below.
Administrator means the natural person under the Customer’s responsibility (corporate officer or employee) who is authorised by the Customer to access the Solution’s management interface and use the features available on such interface. By default, the Administrator is the natural person under the Customer’s responsibility who creates the Customer’s account on the Supplier’s website www.boostmymail.com
Anomaly means any malfunction of the Solution, attributable to the Solution, reproducible and documented by the Customer, and preventing the Customer from using the Solution or its essential features.
Contract means the GTS and Special Conditions relating to the selected offer, duration of the Contract, number of Licences and amount of the periodic fee.
Data means the Customer’s digital data replicated in and processed by the Solution.
Licence means the right of use assigned to a User and corresponding to their email account (address).
Services means all the services defined in Article 5, provided to the Customer by the Supplier under the Contract.
Solution means the online software solution named “Boost My Mail”, whose essential features, depending on the chosen offer, are its ability to generate one or more signature blocks and homogeneous communication banners for Users.
Tenant means the special environment, in the Solution’s shared instance, made available to the Customer and isolated from other Customers’ environments.
Users mean the natural persons under the Customer’s responsibility (corporate officers, employees, agents, etc.) who benefit from the Solution’s essential features through their email client. An email account (address) managed by the Solution corresponds to a User.
ARTICLE 3. SUBJECT
The purpose of the Contract is for the Supplier to provide Services to the Customer in return for payment by the Customer of a periodic fee, under the terms and conditions set forth below.
ARTICLE 4. EFFECT, DURATION AND RENEWALS
In the Special Conditions, the Customer may choose a Contract with a duration of one (1) month or one (1) year.
4.1. ONE-MONTH CONTRACT
The Contract shall take effect upon the Customer’s acceptance of the GTS and Special Conditions, for a period of one (1) month, from date to date.
The Contract shall be tacitly renewed at its term for periods of one (1) month, unless terminated by either Party ipso jure and without judicial formality before the end of the contractual period underway.
4.2. ONE-YEAR CONTRACT
The Contract shall take effect upon the Customer’s acceptance of the GTS and Special Conditions, for a period of one (1) year.
The Contract shall be tacitly renewed at its term for periods of one (1) year, unless terminated by either Party ipso jure and without judicial formality before the end of the contractual period underway.
4.3. TERMS AND CONDITIONS OF TERMINATION
The Customer may terminate the Contract by simply closing their account on the Supplier’s website. Termination will take effect at the end of the contract period underway.
The Supplier may terminate the Contract by simple written notification to the Customer, giving at least eight (8) days’ notice before the end of the contractual period underway when the Contract is for a period of one (1) month, and at least one (1) month before the end of the contractual period underway when the Contract is for a period of one (1) year.
ARTICLE 5. DESCRIPTION OF SERVICES
5.1. SUPPLY OF THE SOLUTION
The Supplier shall provide the Solution to the Customer remotely, via the Internet, as an essential obligation under the Contract, within the limits of the right of use referred to in Article 10.2.
The Administrator accesses the Solution’s management interface via the address communicated by the Supplier and using the email address, which constitutes their username, and the password they provided when creating the Customer’s account.
The Administrator is free to use the Solution’s management interface, in particular in order to manage the Customer’s email signature block(s) and the banners to be inserted in email footers.
Under the Customer’s sole responsibility, the Administrator may also create other Administrator accounts authorised to access the Solution’s management interface, using the email address and password provided by the Customer when the account was first accessed.
Users benefit from the Solution’s essential features by using their email clients. In the event that Users are equipped with the Microsoft Outlook email client, the Customer is responsible for installation of the software module provided by the Supplier on these clients.
The Customer is informed and acknowledges that the Solution is accessible remotely via a network open to the public, the Internet, over which the Supplier has no control. The Customer is also aware of the technical hazards inherent in the Internet and the interruptions to access that may result. Consequently, the Supplier shall not be held responsible for any unavailability or slowdown of the Solution due to the Internet. The Supplier does not guarantee the Solution’s continuous availability.
5.2. PROVISION OF SUPPORT
The Supplier provides the Customer with a support service reserved for Administrators, the purpose of which is to answer their questions and assist them in using the Solution’s management interface.
The support service is available to Administrators on working days, Monday to Friday from 9:00 a.m. to 12 noon and from 2:00 p.m. to 6:00 p.m. Paris time, either by telephone on 02.52.32.11.11 or by email at email@example.com.
5.3. DATA STORAGE AND BACKUP
The Supplier stores and backs up the Customer’s Data processed using the Solution.
Such Data include:
- the graphic components that make up the signature blocks and, if applicable, the banners, which are stored in the Solution’s Content Delivery Network (CDN)
- Users’ personal data extracted from the digital directory of employees, natural persons under the Customer’s responsibility, which are stored in the Solution’s database.
The Data stored in the Solution is encrypted. In addition, the Solution (in its entirety) is itself backed up once (1) a day.
However, the Supplier draws the Customer’s attention to the fact that the Solution is not a dedicated data storage and backup solution and should not be used as such. Consequently, the Customer must keep, on its computer system, the Data stored in the Solution for the purposes of their processing, and ensure their backup.
Furthermore, the Customer is informed and acknowledges that the Supplier has no control over the Internet network through which the Solution is accessible, and consequently cannot be held liable for any damage caused by such network. The Customer is also informed that, given the current state of technology, no security measure can exclude all risks of loss, alteration, misuser or interception of data circulating on such a network, or all risks of intrusion on any infrastructure connected to such a network, or of a breach of the integrity, privacy and, more generally, security of the data hosted on it. Under these conditions, the Supplier does not guarantee the absence of any breach of integrity, privacy or, more generally, security of the Customer’s Data.
ARTICLE 6. HOSTING AND MAINTENANCE OF THE SOLUTION
The Supplier shall be responsible for hosting, uploading and maintaining the Solution. These are operations carried out freely by the Supplier for the purposes of providing the Customer with the Services referred to in Article 5. As a result, the Supplier shall have no obligation to the Customer with respect to such operations, the Supplier’s only obligations to the Customer being the provision of the Services defined in Article 5.
However, the Supplier informs the Customer that the Solution is hosted on the Microsoft Azure platform, which also ensures the Solution’s availability online. The Solution is only accessible to the Supplier’s authorised employees, who ensure its supervision, administration and maintenance.
The Solution provided to the Customer under the Contract has a dedicated Tenant on the Microsoft Azure platform.
The Supplier is responsible for preventive, corrective and evolutionary maintenance of the Solution. In this regard, the Supplier shall be free to perform any maintenance to prevent potential malfunctions, develop and install patches to correct identified malfunctions, and develop and install updates and new versions of the Solution.
The Customer may inform the Supplier of any Anomaly in the Solution. In such case, the Supplier shall be responsible for the corrective maintenance operations required to resolve the Anomaly.
Access to the Solution may be suspended for the purposes of administration or maintenance of the Solution. In cases of planned interventions, the Supplier shall inform the Customer at least forty-eight (48) hours before the intervention and, as far as possible, the intervention shall be carried out at times likely to minimise the inconvenience caused, taking account of France’s time zone. In cases of unscheduled emergency interventions, the Supplier shall endeavour to inform the Customer as soon as possible.
ARTICLE 7. FINANCIAL CONDITIONS
The Customer undertakes to pay the Supplier the monthly or annual fee referred to in the Contract’s Special Conditions, in return for being able to benefit from the Services referred to in Article 5.
For annual Contracts, the annual fee is due in advance. For monthly Contracts, the monthly fee is due in arrears. Any contract period started is due in full.
The amount of the fee is determined in accordance with the Supplier’s current rates, which are based on the offer chosen, duration of the Contract, and number of Licences subscribed.
In the event of an increase in the number of Users during the term of the Contract, the Customer undertakes to subscribe to the corresponding number of additional Licences and pay the Supplier the related fee.
For annual Contracts, an additional fee is payable in advance. Its amount is determined in accordance with the Supplier’s current rates, the number of additional Licences and the time remaining on the annual period underway. For monthly Contracts, the amount of the monthly fee due in arrears takes account of the number of additional Licences.
If the Customer increases the number of Users during the term of the Contract without subscribing to the corresponding number of additional Licences, the Customer undertakes to pay the Supplier the relevant fee. Regardless of the duration of the Contract, a monthly fee is payable in arrears. Its amount is determined in accordance with the monthly rate for the offer chosen by the Customer and the number of additional Users. When the Contract is monthly, the monthly fee includes the amount due for additional Users.
In the event of a change in its current rates, the Supplier shall notify the Customer at least one (1) month before the end of the contractual period underway. In the event of renewal of the Contract, the new rates shall apply in order to determine the amount of the fee for the upcoming contractual period.
Any increase in the number of Licences during the contractual period underway or at an end shall give rise to new Special Conditions which shall be incorporated into the Contract for the next contractual period.
The Supplier shall invoice the fee when it is due.
Fees are invoiced in euros excluding taxes and are increased by the applicable taxes at the rate in force on the invoicing date. The invoicing address is the address of the Customer’s head office.
The Supplier’s invoices are payable upon receipt.
In the event of non-payment of an invoice on the due date, the Customer shall be liable, ipso jure and without notice, to late payment penalties of an amount equivalent to application to the unpaid amount of an interest rate equal to three (3) times the legal interest rate.
Furthermore, the Supplier may suspend performance of Services until the Customer has paid the amount due.
The Customer shall also be liable to a lump sum payment of forty (40) euros as well as all expenses reasonably incurred by the Supplier in order to collect the amount due. Such expenses include legal and court costs as well as collection costs.
Any dispute concerning an invoice from the Supplier must be justified and notified in writing within fifteen (15) calendar days from its date of receipt. After this period, the Customer shall be deemed to have agreed to the invoice sent to it, and no further dispute shall be accepted by the Supplier.
Any service requested by the Customer that is not included in the scope of the Services defined in Article 5 shall be invoiced separately and, where applicable, shall be subject to a prior proposal from the Supplier.
ARTICLE 8. THE PARTIES’ OBLIGATIONS
8.1. THE SUPPLIER’S OBLIGATIONS
The Supplier undertakes to provide the Services defined in Article 5 with the utmost care and in compliance with the rules of the art in the computer field.
8.2. THE CUSTOMER’S OBLIGATIONS
The Customer undertakes to pay the price referred to in Article 7 as an essential obligation.
The proper use of the Solution, and more generally the performance of the Services, requires the Customer’s collaboration. Consequently, the Customer undertakes to communicate to the Supplier, spontaneously or at its request and as soon as possible, all information and documents that may be useful for the proper performance of the Services, support service in particular. Likewise, the Customer undertakes to inform the Supplier, spontaneously and as soon as possible, of any event that might interfere with proper performance of the Services.
The Customer also agrees to collaborate with the Supplier to interface the Solution with Customer’s directory of Users. Failing this, the Customer undertakes to send the Supplier an export file of the Data relating to the said Users as soon as possible, in the format indicated by the Supplier, so that the latter can integrate such Data into the Solution’s database.
The Customer is responsible for setting up all the means required for remote access to and use of the Solution, as well as for installing the software module communicated by the Supplier in email clients.
The Customer undertakes to use the Solution in accordance with its intended purpose, in compliance with the terms of the Contract, applicable laws and regulations, and the rights of Users and third parties, in particular the rights relating to the processing of Users’ Personal Data.
The Customer is solely responsible for the security, confidentiality and use of Administrator usernames and passwords. To this end, the Customer is invited to implement the French National Agency for the Security of Information Systems’ security recommendations relating to passwords. The Customer also agrees to make certain that only Administrators have access to their usernames and passwords, and that they ensure their security and confidentiality.
Furthermore, any access to the Solution using an Administrator’s username and password shall be deemed to have been made by them. In such case, the Customer shall also be solely responsible for any actions carried out on or via the Solution, and for any harmful consequences resulting therefrom, and shall hold the Supplier harmless in this respect.
The Customer undertakes to notify the Supplier immediately of any unauthorised access to a username, password or the Solution itself, so that the Supplier can take any appropriate protective measures in agreement with the Customer.
The Customer guarantees that Administrators and Users will comply with all of the Contract’s provisions. In this regard, the Customer shall be liable for any damage caused to the Supplier or a third party by a breach of a Customer’s obligation under the Contract by an Administrator or User.
ARTICLE 9. PERSONAL DATA
9.1. Personal data processed by the Supplier on its behalf
The Supplier stores the personal data (first name, family name, company and business contact details) of the Administrator who creates the Customer’s account, and of any other Administrator or contact person on the Customer’s premises.
The Supplier processes such personal data for the purposes of providing the Services, managing the Contract, managing invoicing, collection of sums due and, more generally, for the needs of its relationship with the Customer. Hence, such processing is based on execution of the Contract.
The above personal data are intended solely for use by the Supplier’s corporate officers and employees responsible for such tasks. They may be passed on to the Supplier’s co-contractors involved in such tasks.
The Supplier shall retain such personal data for a period of three (3) years as from the end of the Contract. The Supplier shall then retain in intermediate archives the personal data necessary to the exercise of a right and proof of such right, for the duration of the applicable limitation periods or pursuant to the legal obligations to which it is subject.
The Supplier stores such personal data on the Microsoft Azure platform’s servers located in the European Union, so that they benefit from the level of protection existing on this territory.
In compliance with the legislation applicable in France to protection of personal data, namely the Act of 6 January 1978 relating to information technology, data files and civil liberties, as amended by subsequent laws, and the Regulation of 27 April 2016 on protection of individuals with regard to the processing of personal data and on free movement of such data (hereinafter the “Applicable Legislation”), the Administrator(s) and any other natural person concerned by such processing of personal data may, within the limits and conditions of the Applicable Legislation:
- obtain communication and, if necessary, rectification or erasure of personal data concerning them;
- obtain limitation of the processing of their personal data;
- object to the processing of their personal data for legitimate reasons;
- obtain a copy of their personal data in a common structured format for transmission by them to another data controller;
- inform the Supplier of their specific instructions on the fate of their personal data in the event of their death; failing this, their heirs will be able to assert their rights under the Applicable Legislation, as described below.
The Administrator or natural person concerned may exercise either of these rights by contacting the Supplier at Boost My Mail, 10 boulevard du Zénith, 44800 Saint-Herblain FRANCE, and providing proof of identity. The costs associated with exercising these rights, including the cost of retrieving or copying personal data, will be charged by the Supplier in the event of an unjustified or excessive request.
Furthermore, the Supplier may interrupt provision of Services or terminate the Contract ipso jure and without judicial formality, by registered letter with acknowledgement of receipt, in the event that it no longer has the personal data necessary for its execution as a result of the exercise of any of the above rights.
The Administrator or natural person concerned also has the right to lodge a complaint with the CNIL or any other competent supervisory authority in the event of a dispute concerning the above processing of their personal data.
The present processing of personal data has been declared to the CNIL in application of simplified standard no. 48 and under number 2154839.
The Boost My Mail application has also been tested by Digitemis, a company specialising in cybersecurity. No security vulnerabilities have been identified, and separation of User accounts on the SaaS platform is complete and absolute.
9.2. Personal data processed on behalf of the Customer
The Customer processes the personal data of the natural persons under its responsibility, for the purposes of implementing its electronic messaging system. The Customer acknowledges that, as data controller, it alone determines the purpose and means of such processing of its employees’ personal data.
Under the Contract, the Customer instructs the Supplier to use the Solution to process Users’ Personal Data on its behalf, so that Users can benefit from its essential features for the duration of the Contract.
The Customer hereby acknowledges that the Supplier is a data processor.
At minimum, the Personal Data processed by the Solution are Users’ first names, family names and email addresses.
9.2.1. The Customer’s obligations
The Customer undertakes to comply with the obligations imposed on personal data controllers by the Applicable Legislation.
In this respect, the Customer undertakes to provide the Users concerned by the outsourced processing, when their Personal Data are collected, with the information provided for by the Applicable Legislation, in particular the fact that the Supplier is their Personal Data’s recipient, and, if necessary, to obtain the consent of data subject Users as defined by the Applicable Legislation.
The Customer also undertakes to provide the Supplier with access to or communicate Users’ Personal Data, as the case may be, to document in writing any instructions regarding the outsourced processing, and to supervise such processing.
9.2.2. The Supplier’s obligations
The Supplier undertakes to only carry out the outsourced processing on the Customer’s documented instruction. The Supplier undertakes to inform the Customer as soon as possible in the event that it considers that an instruction from the Customer contravenes the Applicable Legislation.
The Supplier undertakes to enter the outsourced processing operation in the register it keeps for this purpose.
The Supplier declares that the corporate officers and employees authorised to participate in the outsourced processing operation undertake to respect the privacy of Personal Data under the privacy obligations referred to in Article 12.
The Supplier undertakes to implement the technical and organisational measures defined below to ensure the security and privacy of Users’ Personal Data, given the low level of risk incurred by the outsourced processing.
- Users’ Personal Data is protected by the security measures inherent in the Microsoft Azure platform that hosts the Solution and the Customer’s Tenant.
- The User’s Personal Data stored in the Solution’s database are partitioned from third parties’ data due to the existence of a Tenant specific to the Customer on the Microsoft Azure platform.
- Access to the database containing Users’ Personal Data is reserved to the Administrators and to the Supplier’s corporate officers and employees responsible for providing the Services.
- Access to the database containing the Users’ Personal Data is protected by a username and a password specific to each of the above individuals.
- Users’ Personal Data is encrypted and protected against loss by backing up the database containing such Data once (1) a day.
In the event that, prior to the implementation of the outsourced processing, the Customer wishes to carry out an analysis of its impact on protection of Users’ Personal Data and, in the event of high risk, consult the supervisory authority to which the Customer is subject, the Supplier undertakes to assist the Customer by communicating to it any information in its possession that the Customer may require for such purposes.
Furthermore, should the Customer wish to implement additional measures to ensure the security and privacy of Users’ Personal Data on its computer system and the electronic communication network connecting it to the Solution, the Supplier undertakes to assist it by providing any information in its possession that the Customer may require for such purpose.
The Supplier undertakes to make available to the Customer the documentation that it has compiled to demonstrate compliance with its obligations under this Article. In addition, the Customer may conduct audits of the technical and organisational measures implemented by the Supplier in order to ensure compliance with these obligations. The Customer may not perform more than one (1) audit per calendar year. The Customer shall give the Supplier at least fifteen (15) days’ notice of any audit. All audits shall be performed by an auditor independent of the Customer and chosen by mutual agreement of the Parties, unless the Supplier expressly agrees to the audit being performed by the Customer. The selected auditor will only be able to start their mission after signing a confidentiality agreement with the Supplier and the Customer, defining the exact scope of their mission and placing appropriate confidentiality obligations on themselves and on the Customer. In the event that the auditor’s report reveals a failure by the Supplier to comply with the above obligations, the Supplier undertakes to remedy the situation as soon as possible. The costs of the audit will be borne by the Customer.
The Supplier undertakes to assist the Customer, as far as possible, in fulfilling its obligation to comply with requests to exercise the rights that data subject Users hold under the Applicable Legislation (right of access, right of rectification, right to limitation, right to erasure, right to withdraw consent, right to objection, right to portability of their data, and right to give instructions on the fate of personal data upon their death).
Under this obligation, the Supplier undertakes to pass on to the Customer, as soon as possible, any request that a data subject User may make directly to the Supplier to exercise a right that they hold under the Applicable Legislation, so that the Customer can comply with such request. The Supplier also undertakes to carry out, as soon as possible, any action on the Personal Data in its possession that the Customer may instruct it to take in order to comply with any request from a data subject User to exercise a right that they hold under the Applicable Legislation. In such case, the Supplier may charge the Customer for the costs resulting from the processing of such request to the extent permitted by the Applicable Legislation.
The Supplier undertakes to assist the Customer in the performance of its obligations to notify the Customer of any breach of Users’ Personal Data by notifying the Customer of any breach of Personal Data with all due speed and, if possible, within 48 hours of becoming aware of such breach, and by providing the Customer with any information in its possession that the Customer may require in order to comply with its notification obligations.
The Supplier shall be entitled to use another data processor (hereinafter the “Subsequent Data Processor”) to carry out a specific part of the outsourced processing on behalf of the Customer. In such case, the Supplier undertakes to inform the Customer in advance in writing of the use of a Subsequent Data Processor or change of an existing Subsequent Data Processor. As part of such information, the Supplier shall indicate the part of the outsourced processing entrusted to the Subsequent Data Processor, the identity and contact details of the Subsequent Data Processor and the dates of the data-processing contract. The Customer shall have a period of fifteen (15) calendar days from receipt of such information to object in writing to the use or change of a Subsequent Data Processor. If no written objection is received within this period, the use or change of a Subsequent Data Processor shall be deemed to have been accepted by the Customer.
The Supplier undertakes to use its best efforts to subject any Subsequent Data Processor to the same obligations as it has under the Contract. The Supplier shall be liable to the Customer for the failure of any Subsequent Data Processor to comply with such obligations.
As of the effective date of the Contract, the Supplier outsources the hosting of User Personal Data contained in the Solution’s database to Microsoft, which operates the Microsoft Azure platform, to which Customer agrees.
ARTICLE 10. INTELLECTUAL PROPERTY
10.1. Supplier’s Intellectual Property Rights
The Supplier is and remains the owner of all intellectual property rights on the Solution and all its components, including programs, texts, illustrations, logos and trademarks, as well as on all creations produced during the performance of the Services.
The Contract does not entail any transfer of rights to these components to the Customer, with the exception of the right of use granted to the Customer under Article 10.2.
The Customer undertakes not to do anything or enable anything to be done that might infringe the Supplier’s aforementioned rights.
10.2. Rights of use granted to the Customer
The Supplier grants the Customer, on a non-exclusive and non-transferable basis, the right to use the Solution, in SaaS mode, via an electronic communication network, by Administrators and Users and for the duration of the Contract.
The right to use the Solution is limited to the number of subscribed Licences, which must correspond to the number of Users counted per email account (address) managed by the Solution. In the event that the Customer has the Solution used by a number of Users greater than the number of Licences subscribed to, the Customer shall be considered as an unauthorised user of the Solution, unless the amount of the fee corresponding to the number of excess Users is paid.
The Customer shall refrain from performing any actions on the Solution other than the above right of use, under penalty of infringement. In this respect, the Customer agrees not to:
- use the Solution in a manner that does not comply with its intended purpose or the terms of the Contract;
- assign or transfer its right to use the Solution or enable any third party to use the Solution.
10.3. Customer’s intellectual property rights
The Customer is and remains the owner of all intellectual property rights to its Data, including its graphic elements, corporate name, brand and logo, which are processed by the Solution.
The Supplier is authorised to use the Customer’s corporate name, brand and logo as a commercial reference in its communication media, unless the Customer objects.
ARTICLE 11. GUARANTEE OF QUIET ENJOYMENT
The Supplier guarantees that it has not introduced into the Solution any component over which a third party has intellectual property rights, without authorisation from such third party enabling the Customer to exercise the right granted in Article 10.2.
Hence, in the event of a request or action by a third party against the Customer on the grounds that the Solution infringes its intellectual property rights, the Customer shall inform the Supplier in writing as soon as possible of the existence of such request or action and provide the Supplier with all information relating to such request or action.
In such case, the Supplier may, at its option and at its expense:
- obtain the right for the Customer to continue using the Solution;
- or modify the Solution so that it ceases to be infringing;
- or terminate the Contract ipso jure and without judicial formality, by written notice to the Customer, subject to reimbursement of the sums paid by the latter in respect of the twelve (12) months elapsed prior to the third party’s request or action, by way of compensation in discharge of all damages.
In the event that the Supplier does not implement any of the above solutions, the Supplier shall bear the cost of any damages that may be charged to the Customer pursuant to a final court decision or settlement, subject to the following conditions:
- the Customer shall have informed the Supplier as indicated above;
- the Customer shall actively cooperate with the Supplier in all matters relating to the settlement of the claim or action;
- the Customer shall not take a position contrary to that of Supplier in the conduct of the defence or any settlement negotiations.
This Guarantee of Quiet Enjoyment of the Solution shall only apply if:
- the Solution has not been modified by anyone other than the Supplier;
- the third party’s request or action does not relate to an item provided by the Customer;
- the Customer has used the Solution in accordance with the provisions of the Contract.
This clause shall constitute the Customer’s sole remedy against the Supplier under the Guarantee of Quiet Enjoyment.
The Supplier expressly excludes any other legal guarantees that may apply to provision of the Solution.
ARTICLE 12. PRIVACY
Both Parties undertakes to keep strictly private, not to disclose to third parties and not to use for any purpose other than the execution of the Contract, the other Party’s information expressly identified as private which it has received, which it will receive or of which it will become aware in the context of the Contract, whether materialised on a medium or dematerialised, except with the prior written authorisation of the other Party.
All components of the Solution that are not public are expressly considered to be the Supplier’s confidential information.
Not subject to this obligation of confidentiality and limited use is information:
§ that was already lawfully in the Receiving Party’s possession prior to its disclosure by the Sending Party;
§ that would have been provided to the Receiving Party in a non-culpable and lawful manner by a third party;
§ that has fallen or would fall into the public domain in a non-culpable and lawful manner;
§ that the Receiving Party would be required to disclose by a legal obligation or enforceable court order, but only to the extent necessary to comply with such legal obligation or court order and provided that the Receiving Party has notified the Sending Party promptly in writing upon learning of such disclosure obligation.
Each Party shall be responsible to the other Party for compliance with this obligation of confidentiality and limited use by its corporate officers, employees and third parties to whom it has been authorised to disclose confidential information.
This obligation of confidentiality and limited use shall apply throughout the term of the Contract and for ten (10) years after its expiration or termination.
ARTICLE 13. RESPONSIBILITIES
13.1. The Customer’s responsibilities
The Customer is solely responsible for the use of the Solution, the Data it processes with the help of the Solution and any damage that may result to itself or to third parties. The Customer shall indemnify the Supplier against all liability, costs and damages relating to any action or claim that may be brought by a third party against the Supplier as a result of the Customer’s use of the Solution, as a result of the Customer’s Data or the signature blocks or banners generated from such Data, in particular on the grounds that such use, Data or elements derived therefrom infringe the Customer’s rights in respect of the attributes of the Customer’s personality, the Customer’s intellectual property rights, the Applicable Legislation in France on protection of personal data, and any other applicable law or regulation.
13.2. The Supplier’s responsibilities
The Supplier shall not be liable for any damage suffered by the Customer or third parties in connection with the use of the Solution when such damage has been caused:
- by the Customer, in particular in the event of use of the Solution that does not comply with its intended purpose or with the provisions of the Contract or with applicable laws and regulations;
- by a third party, in particular in the event of unauthorised use of or intervention in the Solution or in the event of the commission of an offence against the Solution;
- or by any event beyond the Supplier’s reasonable expectation and control, including but not limited to a failure of the Microsoft Azure platform, electronic communication networks or power supply.
The Supplier shall only be liable for foreseeable damage caused directly to the Customer by a breach of the Supplier’s obligations under the Contract.
Therefore, the Supplier shall not be liable for any indirect or unforeseeable damage, given the nature of the Solution. By express agreement, the following are considered as such within the meaning of this clause: loss of markets, loss of customers, loss of turnover or profits, loss of earnings, increases in costs or expenses, and the financial consequences of any actions brought by third parties against the Customer.
The Supplier’s liability, including under a guarantee and for all types of damage, shall be limited to the amount of the fee paid by the Customer for the possibility of using the Solution for the twelve (12) months preceding the damage, taking the Solution’s non-critical nature into account.
In any event, the Supplier shall not be liable beyond the expiration of a period of one (1) year following the event giving rise to the damage or following termination of the Contract for any reason whatsoever.
ARTICLE 14. INSURANCE
The Supplier declares that it is insured for its professional civil liability with a company that is known to be solvent.
The Customer acknowledges that it alone is able to foresee and quantify any prejudice likely to be suffered by it in the event of difficulties arising in provision of the Services and more generally in the performance of the Contract, the terms and conditions of which have been agreed upon with regard to the aforementioned apportionment of liability. Consequently, the Customer shall be responsible for insuring itself against all risks that it anticipates and that are not the Supplier’s responsibility under the terms of the Contract.
ARTICLE 15. TRANSFER
The Customer shall not transfer the Contract or all or part of its rights and obligations under the Contract to a third party, in any way whatsoever, directly or indirectly, and in particular, without limitation, by way of assignment of contract, assignment of rights and obligations, lease management, assignment of business, assignment of branch of activity, partial contribution of assets, merger or absorption, without the Supplier’s prior written consent. In the event of a transfer made in violation of this provision, the Supplier may terminate the Contract ipso jure and without judicial formality, by registered letter with acknowledgement of receipt.
The Supplier may freely transfer all or part of its rights and obligations under the Contract to a third party, by any of the above means.
ARTICLE 16. TERMINATION FOR BREACH
In the event that a Party fails to comply with its obligations under Articles 5, 7, 8, 9, 10, 11 and 12 of the Contract, the non-defaulting Party may terminate the Contract, ipso jure and without judicial formality, by sending a registered letter with acknowledgement of receipt to the defaulting Party at the end of a period of fifteen (15) calendar days from receipt by the defaulting Party of a formal notice to perform sent by registered letter with acknowledgement of receipt and which has remained wholly or partially unsuccessful, without prejudice to any damages to which the non-defaulting Party may be entitled as a result of such failure.
ARTICLE 17. CONSEQUENCES OF TRANSFER OF THE CONTRACT
In the event of transfer of the Contract for any reason whatsoever, the Customer shall cease all use of the Solution.
To this end, the Supplier shall close the Customer’s account on the effective date of transfer of the Contract. Furthermore, the Supplier undertakes, at the Customer’s option notified to the Supplier in writing within thirty (30) days of transfer of the Contract, to destroy or deliver to the Customer a copy of the last backup made of its Data stored in the Solution. In the absence of a choice by the Customer notified within this period, the Supplier shall be released from any obligation of retention and return, and shall destroy the Data.
The Contract’s provisions, which by their nature are intended to survive its termination, including, without limitation, the provisions of Articles 7, 10, 12 and 13, shall remain in effect, as the case may be, for the period indicated therein.
ARTICLE 18. AGREEMENT ON PROOF
All data and computer and digital files recorded in the Solution and their operating environment during execution of the Contract shall be deemed authentic between the Parties as proof of the facts to which they relate.
ARTICLE 19. GENERAL PROVISIONS
The Contract may only be amended by a written amendment duly signed by the Parties’ authorised representatives.
The Contract is devoid of any affectio societatis and shall have no effect on the independence of each Party with respect to the conduct of its business and pursuit of its corporate purpose, each Party continuing to exercise its management, rights and obligations and assume its responsibilities independently.
Any tolerance or waiver by a Party in application of all or part of the provisions of the Contract, regardless of the frequency and duration thereof, shall not be deemed to constitute an amendment to the Contract, nor shall it create any right whatsoever, and shall not be construed as a waiver on its part to invoke the provisions concerned at a later date.
In the event that any provision of the Contract is deemed null, invalid or unenforceable by any law, regulation or final court decision, it shall be deemed unwritten and the other provisions of the Contract shall remain in full force and effect. Within one (1) month of the event that rendered the clause null and void, invalid or unenforceable, the Parties shall endeavour to agree on the terms of a fair replacement clause while respecting the spirit and current tenor of the Contract.
ARTICLE 20. APPLICABLE LAW – DISPUTES
The Contract is subject to French law.
IN THE EVENT OF A DISPUTE CONCERNING THE FORMATION, VALIDITY, INTERPRETATION, EXECUTION OR TERMINATION OF THE CONTRACT, THE PARTIES SHALL ENDEAVOUR TO RESOLVE SUCH DISPUTE AMICABLY, EXCEPT IN THE EVENT OF AN EMERGENCY OR THE NEED TO TAKE PRECAUTIONARY MEASURES.
IN THE ABSENCE OF AN AMICABLE SETTLEMENT WITHIN ONE (1) MONTH OF A REQUEST FOR AMICABLE RESOLUTION FROM ONE PARTY TO THE OTHER, ANY DISPUTE CONCERNING THE FORMATION, VALIDITY, INTERPRETATION, EXECUTION OR TERMINATION OF THE CONTRACT SHALL BE SUBMITTED TO THE COMPETENT COURTS OF THE JURISDICTION OF THE COURT OF APPEAL OF NANTES, SUBJECT TO LEGAL PROVISIONS ASSIGNING TERRITORIAL JURISDICTION TO OTHER COURTS, NOTWITHSTANDING PLURALITY OF DEFENDANTS OR THE INTERVENTION OF THIRD PARTIES
THIS ATTRIBUTION OF COMPETENCE IS ALSO APPLICABLE IN CASE OF EMERGENCY PROCEDURES.