These General Terms and Conditions shall apply between POOOL, a simplified joint stock company registered in the Bordeaux Trade and Companies Register under the number 819 554 890 (hereinafter the "Company"), and any natural or legal person using the Company's services within the frame of her/its professional activity (hereinafter the "Client"). The purpose of these General Terms and Conditions of Sale (hereinafter "GTCs") is to define the rights and obligations of the parties regarding the services provided by the Company on behalf of the Client. These GTCs, together with any special conditions, constitute the entire agreement between the Company and the Client. In the event of any inconsistency between these GTCs and the Special Conditions, the latter shall prevail. The order of services shall be definitively validated only after the Client has accepted these GTCs, without restriction or reservation.
2.1. These GTCs are applicable to all provisions of services performed by the Company on behalf of the Client. The signature of the Special Conditions (as defined hereunder) by the Client implies the pure and simple acceptance of these GTCs which are available at any time on the Company's website at the following URL address: https://poool.fr/terms.
2.2. The Company is a software company and has developed a Software as a Service (SaaS) software solution that allows website publishers to manage their paywalls dynamically, based on the profile and behaviours of readers (i.e. final users). The objective of the software solution offered by the Company is to enable Clients, generally media, to progressively monetize, engage and transform readers with premium content. Thus, the Client's use of the software solution shall allow the latter to manage his paywall, customize and test scenarios and messages to be sent to Internet users, and therefore obtain statistics based on visitors of the Client's website (hereinafter "the Service"). The terms and conditions regarding the provision of Service are detailed below in Article 5. Before providing the software solution and the Service, the Company may also, at the Client's express request, carry out a preliminary study and provide consulting services. The preliminary study generally involves collecting personal data, in accordance with the applicable legal provisions, as detailed in Article 10 below. The terms and conditions of a potential study and of advisory activities are to be specified in an order form signed by the Client (duration, cost, intervention, etc.). It is understood by the Client that the mere fact of ordering a preliminary study or consulting services from the Company does not in any way oblige him to subscribe to the Service. These services are indeed completely separate. If the Client wishes to subscribe to the Service at the end of the study, a separate order form shall be completed.
2.3. The Company shall create an account for the Client on the Company's website accessible at www.poool.fr after the Client has given the necessary administrative information. The account, which will be a subdomain of the website www.poool.fr (hereinafter “the Dashboard”), will allow the Client to access his Dashboard and monitor the implementation of the GTCs. The Dashboard only contains the information required to manage the commercial relationship between the parties, said Dashboard allowing the Client to use the services in accordance with the provisions of the GTCs and the Special Conditions. In case of any modification, the Client shall update his information. The Client can access the Dashboard using his login and password generated during its creation. The Dashboard allows the Client to consult, at any time during the execution of this agreement, to monitor and record statistics regarding the performance and use of his paywall by his Internet users. The Client shall use the Service only for its own account, and refrains from allowing any third party to use the Dashboard. The Client shall keep his login and password secret and inform the Company without delay in the event of use of the Dashboard without his authorization. Any use of the Service with the Client’s ID and password will be deemed to have been carried out by the Client. The Client is informed that the Company may access the Dashboard during the execution of the GTCs and Special Conditions, but may under no circumstances modify the configuration of the Service as carried out by the Client, without prior written agreement (email). However, in the event of a manifest breach by the Client of any of the provisions of the GTCs or the Special Conditions, and exclusively in this case, the Company may intervene on the Client's Dashboard in order to put an end to the breach; the Client expressly acknowledges and accepts it. It is understood that the Client has one Dashboard per website on which he integrates the software solution and uses the Service. In case of subscription to the Service for several websites, the Client shall have several Dashboards.
3.1. These GTCs came into force on March 1st, 2017 and were updated on May 14, 2018. The Company reserves the right to adapt or modify these GTCs at any time and without prior notice. Said adaptations or modifications shall apply to subsequent provisions of services. The Company shall inform the Client by any means it deems appropriate, and in particular by email, by sending him the new General Terms and Conditions of Sale, with reasonable notice before their date of entry into force.
3.2. The GTCs are concluded for an initial period which duration and terms are set out in the Special Conditions, as defined below. This period starts from the signature of the Special Conditions as specified below. This initial period is free of commitment. Following this initial period and unless the Client terminates the GTCs under the conditions provided for herein or in the Special Conditions, new Special Conditions shall be signed by the Client, by which the Client subscribes to the Service for the duration specified in the Special Conditions. Said duration shall then be tacitly renewed for successive periods of the same duration. In this case, the Client undertakes to pay the amounts due for the subscription to the Service which are specified in the Special Conditions.
The Company and the Client shall jointly agree on the duration of the subscription to the Service and on the scope of any ancillary services. In the event of the Client's acceptance of the services and rates offered by the Company, the latter shall send to the Client an order form. This order form shall be drawn up in two (2) copies, signed by the Client and returned by him to the Company. The signature of the order form shall be understood as a registration by the Client to the Service for the initial period. A new purchase order shall then be signed between the parties once the initial period has expired. The order form defines the special conditions (hereinafter the "Special Conditions"), a contractual document specifying in particular the nature of the services, the price of the services (global price, per day, etc.), the amount of any discounts and rebates, the payment terms and delivery deadlines, and the Client's full and complete acceptance of the GTCs. The Special Conditions may derogate from these GTCs. In the event of any inconsistency between these documents, the provisions of the Special Conditions shall prevail.
5.1. The Company shall perform the services or have them performed by a subcontractor as agreed with the Client and in accordance with the provisions of the Special Conditions and these GTCs.
5.2. The Service shall only be delivered by the Company after the installation and integration of the Company's software solution on the Client's website. The Client shall be in charge of this integration after the Company has provided him with the necessary indications and information. The related documentation is available at the following address: https://dev.poool.fr/. The Company shall provide the Client with assistance and technical support to integrate and install the software solution on the Client’s website, without additional cost.
5.3. For the purposes of statistics, research and development analysis, improvement of the Service and its software solution, the Company shall have access during the term of the present agreement to all data generated, created or received in connection with the use of the Service, and may use them in accordance with the provisions set out below.
5.4. The data contained in the Dashboard to which the Client has access to shall be updated as the Service is used. The Client shall thus have access to updated statistics and data relating to the use of the Service, in accordance with the settings he has implemented. It is understood that these parameters may be modified at any time, at the Client’s discretion. The Client shall be held solely liable for the parameters set up on the Dashboard and for the consequences that could result from said parameters. Broadly speaking, the Client shall perform all action from the Dashboard and use the Service and the associated software solution under his sole and entire liability (messages, advertisements, etc.). It is understood that the data contained on the Dashboard can be partly downloaded or extracted by the Client, but only during the execution of the GTCs. The Client expressly acknowledges that only certain data may be downloaded or extracted from the Dashboard. Said data are specified on the Dashboard and may not be modified by the Client. The Client can only select the period of time during which the extraction or download is to be performed. The Client may carry out these actions at its discretion, it being understood that the Company is under no circumstances liable for the use made of the data by the Client. At all events, the Client may access the data according to their availability and accessibility, in case of a free version of the Company's software solution and Service.
5.5. The Client shall appoint a single contact person among its members, dedicated to managing the relationship with the Company for the proper execution of the present agreement. The Company shall do the same.
6.1.1. Notwithstanding any other obligations hereunder, the Client undertakes, regarding the use of the Service, to comply with all applicable laws and regulations and not to violate public policies or the rights of third parties. The Client is solely liable for compliance with the necessary administrative, tax and/or social formalities relating to his use of the Service. The Company shall in no event be liable in this respect.
6.1.2. The Client acknowledges that he has read on the Company's website the documentation relating to the Service, accessible at the following address https://dev.poool.fr/, and that he understood the characteristics and limitations of the Service, and in particular its scope. The Client agrees to set up his website in accordance with the Company's requirements, such settings being necessary for the provision of the Service in accordance with these GTCs. The Client shall solely be held liable for his use of the Service. The Client undertakes to use the Service only for his own account. He may not transfer, sub-license, delegate or assign all or part of his rights referred to herein to a third party. The Client undertakes to use the Service and, more generally, the Company's software solution in accordance with the provisions set out herein, solely for lawful purposes and in accordance with the documentation available on the Company's website.
6.1.3. The Client undertakes to provide the Company, in due course, with the data and information whose communication is deemed useful by the Company and/or necessary for the provision of the Service, in particular for the creation of the Dashboard. In the event of late provision of said data and information, the date of provision of Service shall be postponed, the Client being unable to object. The parties shall mutually agree on a new date to start the use of the Service. The Client undertakes to progressively and without delay provide the Company with evidence of the collection or lack of consent of readers whenever such consent is required considering the services offered by the Company. The Client acknowledges that he is fully aware that this obligation is necessary to enable the Company to comply with its own obligations.
6.1.4. In the event of any difficulty identified by the Client regarding the operation of the Service, the Client shall notify the Company in writing. The Company undertakes to make its best efforts to remedy the difficulty as soon as possible, and in any event within 48 hours, working days.
6.1.5.The Client undertakes not to make a use of the Service with the purpose of or that could result in (i) violating applicable regulations, (ii) leading to the fraudulent use of techniques / softwares of referencing optimization, (iii) using data, in particular personal data, of Internet users through the Service without first obtaining the necessary authorizations to do so, (iv) hindering or disrupting the Service, the servers or networks connected to the Service, (v) circumventing the limits of use or access of the Service, (vi) carrying out illegal campaigns, aggressive marketing messages, using robots or mechanisms prohibited by the editors' platforms (such as Apple or Google), as well as damaging the Company's servers, (vii) selling or granting all or part of the access to the Service or information hosted on the Dashboard, (viii) designing, building and/or having built a system, application, software or combination competing with the Service or the software solution, (ix) interfering, attempting to interfere, compromising the integrity or security of the software solution or the Service or decrypting transmissions to or from the Service servers, (x) imposing a disproportionate or unreasonable burden on the Company's server infrastructure.
6.1.6. The Client shall protect himself by any means at its disposable, against any risk of loss, destruction or alteration of its programs, files and source data that may occur during the execution of these GTCs.
6.2.1. The Company undertakes to make its best efforts to ensure that the Service is accessible at all times, 24 hours a day, 7 days a week, and that it can be used for the execution of the GTCs and the Special Conditions. Notwithstanding the foregoing, the Client is informed that the Company may update or upgrade the Service and the associated software solution, which may lead to occasional malfunctions. The sole purpose of these updates and evolutions shall be to improve the Service offered by the Company. In addition, the Company may not be held liable for malfunctions of the Internet network, over which it has no control, or those that may be related to the Client's equipment or IT structure. It is understood that the Company cannot be held liable on this basis.
6.2.2. The Client may access the Dashboard and use the Service at any time during the period specified in the Special Conditions, subject to the unavailability and malfunctions contemplated herein. The Client shall access the Dashboard from any computer by using his required login and password. In the event of any difficulty in the operation of the Service, the Company shall intervene, remotely and as soon as possible, and shall make its best efforts to resolve the problems that have occurred, within 48 hours, working days. In such a case, the Company provides the Client with a technical team whose intervention hours are from 9 am to 6 pm from Monday to Friday.
6.2.3. The Company undertakes to carry out the services in accordance with the best practices, the contractual provisions agreed with the Client and the applicable legal and regulatory provisions. All obligations imposed on the Company regarding the performance of the services are strictly and solely of a best-efforts nature (“obligation de moyens”), which is expressly acknowledged by the Client. The Company undertakes to subscribe to all liability insurance required for the performance of its activity, in particular in order to cover the risks related to the performance of the services. The Company shall maintain this guarantee throughout the duration of its contractual relationship with the Client.
6.2.4. The Company makes its best efforts to ensure the monitoring of the server on which the data is collected, as well as to store and save the data contained on the Client's Dashboard under conditions that comply with the sector practices, particularly in terms of security and accessibility. Nevertheless, it is specified that the hosting of the server and of the software solution is not provided by the Company, but by a service provider of the Company, for which the Company is not liable.
6.2.5. The Company shall inform the Client of any new version, evolution or update of the Service to which the Client shall automatically have access to, as soon as they can be implemented. The Client shall have access to these new versions, evolutions or updates under the same conditions and terms as the ones provided herein. The Company also reserves the right to modify, add, discontinue or remove any functionality of the Service at any time. The Company is not required to inform the Client, unless such changes are likely to impact the Client's use of the Service. The Client is informed that the Company may carry out preventive, corrective or evolutionary maintenance operations at any time during the execution of the present agreement. These operations shall be carried out under conditions that disrupt the least possible the proper use of the Service by the Client, it being specified that the Company cannot guarantee a Service interruption. In such circumstances, the Company shall make its best efforts to ensure that the interruption is as short as possible. Corrective and evolutive maintenance are in no way an obligation imposed on the Company, which is not required to regularly upgrade or correct the software solution allowing the use of the Service, unless otherwise specified.
6.2.6. It is understood that the Client must have an appropriate IT and software structure to support the installation and use of the related software solution and Service. The Company shall under no circumstances be held liable for any malfunction or inability to use the Service if the cause is the Client's IT equipment. This provision applies not only to the software solution and Service available on the date of signature of this agreement, but also in the event of any corrective or evolutionary modification of said elements. In such a case, the Client may terminate these GTCs in accordance with the provisions defined herein, or request the Company's intervention to remedy the situation, with the understanding that said intervention shall require a purchase order and a separate invoicing.
7.1. Upon signature of the Special Conditions, the Company shall provide the Client with its bank details and the Client shall be informed of the amount of the Service subscription. Said payment is due by bank transfer to the Company's account, or by any other means of payment, in accordance with the terms and conditions specified in the Special Conditions. The Client thus undertakes to make payments on the due dates agreed with the Company. A service provider selected by the Company, in accordance with security standards, ensures payment security. The parties may provide for different payment terms in the Special Conditions, for example payment by the Client within 30 (thirty) days following the presentation of an invoice by the Company. When the Client benefits from a promotional offer from the Company for a fixed period of time defined in the Special Conditions, the Client undertakes to sign new Special Conditions within ten (10) working days following the end of the previous period, at the rates indicated by the Company, of which the Client would have been fully informed in advance. If the Client fails to sign within the aforementioned period, he is fully informed that he shall no longer have access to the Company's services, pursuant to the provisions set out herein.
7.2. The rates of the services and their payment schedule as well as any discounts or rebates are specified in the Special Conditions. Prices vary in particular according to: the number of websites on which the Client wishes to integrate the software solution and benefit from the Service, the commitment period, as well as the size of the media and the number of pages views it generates. The amounts due for the subscription to the Service after the end of the free trial period are set out in the Special Conditions. They are specified in euros (excluding tax), plus the VAT rate in force on the date of invoicing. These amounts do not include any fees, taxes or other amounts to be paid to the tax authorities for which the Client remains the sole debtor. The Company may change the price of the subscription to the Service at any time, without incurring any liability in this respect. It is specified that the Client will be informed by email at least thirty (30) days before the change becomes effective. The rate change shall only be applicable for the Client's invoices once the aforementioned notice period has expired.
7.3. Any payment delay shall be subject to a penalty amounting to three times the legal interest rate, as of the date on which the Company sends a letter of formal notice with acknowledgement of receipt. In addition, a fixed recovery indemnity of €40 will be due by the Client. The amount of this indemnity may be higher, upon presentation of the receipts of the payments incurred by the Company to recover its claim. In addition, if an invoice fails to be paid within thirty (30) days following the end of the month, if payment is not made by direct debit, the Company may suspend its performance of the services until full payment of the said invoice, without such suspension being considered as a termination. A partial payment shall not prevent from this suspension of performance.
The Company shall make the software solution and the Service available as of the signature of the present agreement. This provision shall be made available as is. The Company shall thus provide the Client with all information and requirements necessary for the integration of the software solution and the implementation of the Service on the Client's websites.
9.1 The software solution and the Service provided to the Client by the Company are the latter’s exclusive property. The Company declares that it has all rights and authorizations necessary to provide the Client with the software solution and the Service in accordance herewith. The Client shall only benefit from a personal, non-transferable and non-exclusive license to use the software solution and the Service, to integrate them into its website(s) by reproducing, adapting, modifying or translating them, in order to exploit them within the limits and conditions as defined herein, for its Internet use and for the sole duration hereof, for worldwide use. The Client shall have no distribution or marketing rights. All other rights relating to the software solution and the Service are reserved to the Company. The Company expressly reserves the right to correct the software solution and the Service in the event of an error or a bug, under the conditions provided for herein. The Company guarantees to the Client that the latter shall be able to enjoy the software solution and the Service peacefully during the term hereof, subject to compliance by the Client with these GTCs and the law. If a Client or a third party considers that an intellectual property right of an element has been infringed, it shall contact the Company at the following address: [email protected] The Company guarantees the Client against any claim by third parties, any legal action, in particular on the grounds of counterfeiting, unfair competition or parasitism, and more generally against any disturbance affecting the enjoyment of the licensed rights, the software solution and the Service provided hereunder.
9.2. The Company authorizes the Client to integrate its software solution on the websites designated in the Special Conditions, solely for the purpose of providing the Service, and in accordance with the indications and requirements mentioned by the Company as at the date hereof. Before integrating the Company's software solution and integrating it into its websites, the Client undertakes to read the documentation available on the Company's website and to observe it, in particular regarding the launch and configuration of the software solution offering the Service. On its part, the Client expressly agrees that the software solution and the related Service may be implemented on its website, throughout the entire duration of the present agreement, for their proper execution.
9.3. All data, information, documents, trademarks, etc., which are subject to intellectual property rights, transmitted by the Company to the Client or of which the Client has become aware in the context of this agreement, remain the exclusive property of the Company. The Client shall have no rights over said data, information, documents, trademarks, etc., either during the execution of the present contract or upon its termination, for any reason whatsoever.
9.4. The Company reserves all rights relating to the databases created in accordance with these GTCs, subject to compliance with any pre-existing rights relating to the data, information and elements contained in said databases, in particular in terms of personal data, copyright, etc. The Company undertakes to use the said databases solely for its own internal purposes, in compliance with the provisions set out herein, in particular in terms of confidentiality. Thus, if these databases contain data provided by the Client, they must not be transmitted to third parties without the Client’s prior written consent.
9.5. Pursuant to the above, the Client shall refrain from and forbid all persons visiting its website or with whom it has entered into a contract from (i) adapting, modifying, decompiling, translating, developing a similar software solution or service, (ii) decomposing, decompiling or modifying the source code the Company's software solution, unless otherwise provided by law, (iii) copying or duplicating the Company's software solution, except when strictly required by the use of the Service (e.g. for the integration of the Company's software solution on the Client's website), (iv) assigning, transferring, sublicensing, loaning, selling, or leasing of the Company's software solution or its Service, unless prior written consent of the Company, (v) using the Service and the associated software solution in violation of applicable regulations.
The Company has published on its website the compliance measures it has implemented in view with the entry into force, on 25 May 2018, of the European General Data Protection Regulation. This document is available on the following link: https://poool.fr/rgpd.
10.1. The Client and the Company may, in the course of carrying out this agreement, directly or indirectly collect personal data regarding the Client, members of its staff, or Internet users visiting the Client's websites. The personal information collected directly is subject to an automated processing for the following purposes. These personal data are processed either by the Client or by the Company or its authorised service providers, in accordance with the rules of confidentiality and security set out in the applicable legal provisions. The personal data collected directly will be processed in accordance with the French Data Protection Act N°78-17 dated 6 January 1978 as amended and any other applicable legal or regulatory provisions, including in particular the European General Data Protection Regulation, which came into force on 25 May 2018. It is understood that all persons whose personal data are collected pursuant to this agreement have all the rights referred to in the French Data Protection Act N°78-17 dated 6 January 1978 as amended, and in particular a right of access, rectification, deletion or opposition on legitimate grounds. The concerned persons may thus request that inaccurate, incomplete, ambiguous or outdated personal data regarding them be rectified, completed, clarified, updated or deleted. The concerned persons may also - as part of their right to the portability of their personal data - recover data concerning them for their personal use, or request that the said data be transferred to a third party, if this is technically feasible. The concerned persons may also object for legitimate reasons to the processing of their personal data, inform the Company of the fate to be reserved to their personal data in the event of their death (deletion or transmission to designated heirs), file a complaint with the supervisory authorities, and have, under certain conditions, a right to limit the processing. Any request made in this regard shall be addressed to [email protected] These rights which the concerned persons benefit from are exercised vis-à-vis the Company only when it is the data controller. In addition, the data controller, whether it is the Client or the Company, undertakes to provide instructions to the party having the status of processor and to determine the general purposes and means of the concerned personal data processing. The Company may use third party subcontractors to delegate all or part of the processing activities, after prior written authorization of the Client. When a party acts as a data controller, it shall reasonably cooperate with the other party, so as to give rise to the data protection rights as defined in the General Data Protection Regulations. It is understood that the data controller undertakes to fulfil its obligations regarding the protection, security and any other obligation relating to the personal data collected and processed (procedure set up for the exercise of the rights of the concerned persons; processing of data in a lawful and valid manner; the personal data collected are only those which are relevant and proportional to the processing envisaged). The data controller also undertakes that its staff complies with the commitments made regarding the collection and processing of personal data and shall take reasonable measures for this purpose. Personal data are processed solely for the purpose of proper performance and improvement of the services offered by the Company to the Client under these GTCs and in accordance with the instructions provided by the Client when the latter is the data controller. Personal data are kept only for the duration of the processing necessary to carry out the present agreement, which is expressly acknowledged and accepted by the Client and the Company. Upon termination of the personal data processing services, the personal data shall be either destroyed or returned, as required by the concerned person, unless legal requirements prevent the Company from doing so. The persons whose data are collected have the right to file a complaint with the supervisory authority or the competent courts.
10.3. Notwithstanding the foregoing, the Client acknowledges and accepts that the Company may place cookies on the Client's websites on which the Service and the Company's software solution have been integrated, which the Client expressly accepts. This does not result in any additional purchase orders. The Company also collects information relating to the Internet Protocol (IP) address of the Internet user, his browser (type, browser header, etc.), as well as his navigation on the Client's website. E-mails from Internet users may also be collected. Thus, the Company is also required to collect and process the personal data of final Internet users browsing the Client's websites, subject to their express consent collected by the Client, on its own behalf. In this case, the obligations relating to the Data Protection Act of 6 January 1978 as amended and the General Data Protection Regulation shall be the responsibility of the Company, as the controller of the processing of personal data resulting from the use of said cookies. Notwithstanding the foregoing, it is understood that it is solely the Client's responsibility to obtain the consent of the final users for the Company's data collection and processing, with cookies being integrated into its website. This consent must be obtained in accordance with the provisions of the Data Protection Act as amended and the relevant deliberations and the provisions of the General Data Protection Regulation coming into force on 25 May 2018. The purpose of the Company's use of these cookies is to improve the Service, to establish connection statistics and to compile browsing histories. If the Client does not agree to their installation on the above-mentioned websites, he acknowledges that the use of the Service may not be optimal or may even be affected. The Company may under no circumstances be held liable on this basis. The Company may also use fingerprinting, a tracking system subject to the same legislation as cookies. The purpose of data relating to Internet users' browsing is to provide the Client with real-time analyses and monitoring of Internet users' behaviour on the Client's website and paywall. In general, this personal data is used by the Company for the purposes of administering the Service, preventing abuse, as well as monitoring the behaviour of Internet users, and will be the subject of prior information and consent from the Internet users concerned. It is again specified for all intents and purposes that this consent is obtained by the Client. The Company made the declarations to the Commission Nationale Informatique et Libertés on 31 May 2016, under number 1964455 v 0.
10.4. The obligations are the Company’s or the Client’s responsibility, depending on who effectively collects and processes personal data. The Client thus undertakes to obtain the consent of Internet users visiting his websites regarding the installation of cookies. In addition, the party concerned must obtain the agreement of Internet users regarding the installation of cookies on their browser's terminal, for the duration provided for in the legislation and for the use of which the user was informed at the time of obtaining his consent. More generally, the Client and the Company undertake to comply with all applicable legislation regarding the collection and processing of personal data.
10.5. In addition, the Client acknowledges that the Company may aggregate, anonymize and reuse data created, received, derived from the use of the Service or provided by the Company for the performance of the Service and aggregated in the Dashboard, in order to improve its software solution and the Service, as well as for the preparation of statistical and analytical reports for research and development purposes. The Client expressly agrees that the Company may have access to and use the aforementioned data in a completely anonymous manner, solely in connection with the provision of the Service, and during the term hereof. In this case, the Client’s data is used by the Company only for the duration of this agreement, in an anonymous manner, separately or in combination with the data of other customers also being processed in an anonymous manner. It is understood that the Company shall not communicate the above-mentioned data to any third party, except with the Client's express prior consent. In accordance with the provisions of the foregoing, the Company may have access to all the aforementioned data - via the Dashboard - during the execution of the present agreement, which the Client expressly accepts. Upon termination of this agreement, for any reason whatsoever, the Company shall cease to use the data subject to this clause.
10.6. In addition, the Company collects and processes personal data relating to the Client’s staff, namely the surname, first name, email address, telephone number, the company employing him or her, position within this company, IP (Internet Protocol) address, type of browser, login and password (this data being kept in encrypted form) of the Client's staff. The purpose of this collection and processing is to manage the commercial relationship with the Client. The Company uses this personal data to improve and update the Service, to facilitate connection to the Service and to simplify its use. If the Client's concerned staff expressly authorizes it, the Company may also send him or her business prospecting emails unrelated to his profession to the address provided. For any commercial prospecting related to the function of the Client's staff member concerned, express authorization shall not be required. The staff member concerned shall only be informed that his or her address may be used for commercial prospecting purposes and of the opportunity to object to such use. It is specified that even if the Company is not authorised to send commercial prospecting emails to such persons, it may still send them emails relating to the management of the commercial relationship of the present agreement and its execution, which the Client expressly acknowledges and accepts. The collection and processing of this personal data shall be subject to prior consent requested at the time of the data collection, the Client’s relevant staff being informed of the personal data collected, the purpose of the processing and the duration of storage of the said data. It is the Client's responsibility to inform its staff members of the content of this agreement, as well as of the rights they have under the Data Protection Act dated 6 January 1978 as amended and the General Data Protection Regulation. The Client undertakes to give such information for which he is solely responsible.
10.7. The Company does not transfer, sell or rent the personal data collected hereunder without the express prior consent of the persons concerned. Notwithstanding the foregoing, it is understood that in the event of the sale of all or part of the Company, the personal data collected and processed hereunder shall constitute one of the Company’s assets which may be transferred, without such transfer exceeding the rights and obligations provided for herein. Thus, the new purchaser of the personal data may not use the said data beyond the scope of use authorized herein. The Client is also informed that the Company may be required to provide the personal data collected under this agreement at the request or legitimate demand of any public authorities.
10.8. The Company implements technical and organisational security standards to protect the personal data of final users of the Client's and the Client’s own websites. The methods that may be used by the Company, at its discretion, are firewalls, password protection systems and encrypted storage. In the event of a security breach or loss of personal data relating to Clients, members of the Client's staff or final Internet users, the Company shall inform them by e-mail as per applicable legal conditions, as soon as possible after the breach of personal data has been discovered. The Company shall take all necessary measures to remedy the breach and ensure data security. The Client is informed that personal data is collected and processed hereunder in data silos, i.e. not unified with personal data arising from the conclusion and execution of other clients contracts. This use of silo is only valid for commercial use whatsoever, by the Company exclusively. On the other hand, any use of personal data for statistical, experimental and general non-commercial purposes may be made using aggregated data, as defined in the present article. However, it is understood that the Company's authorized staff and subcontractors may access and use the data, under the conditions and limits set out herein.
10.9. The personal data collected and processed hereunder, whether by the Client or the Company, are collected and processed within the European Union. When the Client is established outside the European Union, the Company ensures that the collection, processing and transfer of data is carried out in accordance with applicable regulations, and guarantees an adequate level of protection of privacy and the rights of individuals.
10.10. The Company may change its personal data processing policy at its discretion. If these changes or modifications require the consent of Internet users using the Client's websites or the Client's staff members, such consent shall be obtained according to the same procedures as those provided for in this article.
10.11. If a supervisory authority requires an audit of the processing facilities from which the Company processes the personal data of the Client, his staff or final Internet users, the Company shall cooperate in carrying out such an audit. The Client shall be responsible for the costs and expenses incurred by the Company for this audit.
11.1. The Company shall not be bound by any exclusivity clause hereunder. The Company may therefore make the software solution and the Service available to third parties without restriction or reservation. Similarly, the Client may integrate software solutions on its websites that are complementary to the Company's, it being specified that the Company does not guarantee the availability or optimal use of the Service, given the implementation of a competing solution on the same website. The Client may in no way seek the Company's liability on this basis.
11.2. The Client shall refrain from hiring any member of the Company's staff, regardless of their position, for the entire duration of this agreement and for 24 (twenty-four) months following the termination of this agreement for whatever reason. In the event of a breach of this obligation, the Client undertakes to pay the Company as damages an amount equivalent to one (1) year's gross remuneration of the employee concerned by the enticement.
12.1. The Company undertakes to provide all its care in the performance of its services. The Company may only be held liable in the event of its fault. Insofar as the Client demonstrates that he has suffered damage as a result of the Company's fault, the Company may only be required to compensate for the direct damage and only up to an amount not exceeding the sums received by the Company for the performance of the services during the six (6) months preceding the occurrence of the event giving rise to its liability. At all events, regardless of the origin of any damage that may be caused, the Company shall not be liable for any indirect, unforeseeable, special, incidental, consequential or punitive damages arising from the use of the Company's software solution or the Service. This includes, but is not limited to, damage resulting from lost data stored on the Dashboard, material damage of any kind, unauthorized access to the Company's servers, unavailability of the server through which the Service is accessible, errors or omissions by the Service, etc. The Company's liability for direct damages, only types of damages for which the Company could be held liable, shall not exceed the total amount of sums paid for the use of the Service during the six (6) months preceding the occurrence of the event giving rise to the liability.
12.2. Under no circumstances shall the Company's liability be sought in the event of fault, failure, omission or negligence of the Client, force majeure, events or incidents beyond the Company's control such as strikes, social unrest, natural disasters, fires, etc., as well as in the event of fault, negligence or omission of a third party over whom the Company has no control or monitoring powers. The Client is responsible for all documents and/or information provided to the Company for the performance of the services. In this respect, the Client undertakes to guarantee and compensate the Company for any damage it may suffer on this basis, including any capital, interest and accessory penalties, as well as any legal fees and expenses incurred to defend the Company's rights before Courts or at the stage of pre-litigation. The Client shall bear all sums, costs, attorneys' fees and expenses that may be charged to the Company in connection with, among other things, a breach of this agreement, unauthorized use of the software solution or the Service by the Client, or any other fault relating to this agreement for which the Client may be held liable.
12.3. The Company provides the Service in accordance with the market practices and standards as part of a best-efforts obligation (“obligation de moyens”), which the Client acknowledges and accepts. The Company does not guarantee any results related to the use of the Service, any threshold, objective or engagement rate of Internet users. The Company shall perform the services provided for in the GTCs in accordance with the proper rules. Similarly, the Company does not guarantee that the software solution and the Service are error-free, bug-free, that the use of the Service will (i) not be interrupted, (ii) be without incident, (iii) offering a flawless level of security, or that the operation of the Service will not affect other software used by the Client.
12.4. The Company only provides the Service referred to in Article 2 of the GTCs and has no control or ownership over the content hosted and indexed by the Client as part of the Service. Thus, the Company cannot be held responsible for any content insofar as the Company acts solely as a host. The Client acknowledges and accepts that the Company may remove from the Service any unlawful / illegal contents that the Company may be aware of, in particular if a complaint is filed by a third party or in case of a court decision, if and only if the Client has not taken the necessary steps after having been informed in writing by the Company of the existence of such content. The Company cannot be held liable on this basis unless it has itself been informed of the illegal nature of the content concerned.
12.5. The Client is solely and exclusively responsible for the use he makes of the Company's software solution and the Service, whatever this use may be, and for the consequences resulting therefrom, including in particular, without this list being exhaustive, any damage caused by viruses or improper handling.
12.6. The Client guarantees that he has all the necessary rights and authorisations enabling the Company to use and possibly reproduce the elements transmitted to the latter for the proper performance of the services, whatever these elements may be. The Client guarantees that he has subscribed the necessary insurance contracts (property damage and personal injuries) to cover events that may occur during the performance of the services.
12.7. The Client acknowledges that he has been fully informed of the capabilities and objectives that can be reached through the Service and the software solution. Consequently, the Client shall himself define whether or not the Service and its consequences of use are appropriate for him and meet his needs. The Company shall not be held liable for any loss, damage or prejudice caused to the Client as a result of his choice to use the Service.
The Company cannot be held liable in the event of force majeure. Any impediment beyond the Company's control that prevents it from normally performing its obligations and/or that the Company cannot avoid or overcome without incurring costs and expenses that substantially modify the economy of the GTCs shall be contractually considered as a case of force majeure. The parties undertake to keep each other informed in due course of the occurrence of a case of force majeure and its foreseeable consequences. If the force majeure lasts for a consecutive period of at least fifteen (15) days, the party not concerned by the force majeure shall be entitled to terminate this agreement by giving the prevented party a fifteen (15) days' notice by email, at the attention of the dedicated contact within the party concerned.
14.1. The Client may terminate the GTCs and the Special Conditions during the term of the first purchase order signed by the Client at a preferential rate, at any time and up to the day before the end of the said period. To do so, the Client shall send an email to the Company indicating that he does not wish to subscribe to the Service, at the following address: [email protected] The termination will be taken into account immediately, as from the receipt of the email, without retroactive effect.
14.2. After the aforementioned period, the Client is hereby bound by successive periods. The duration of each period considered is indicated in the Special Conditions. The Client may terminate the subscription to the Service at the latest ten (10) days before the end of the current subscription period. This termination must be notified by email to the dedicated contact person within the party concerned. These GTCs and the Special Conditions shall expire at the end of the relevant subscription period.
14.3. Failure by the Client to comply with his payment obligations shall in addition to an immediate suspension of services result in the application of a termination clause, after a formal notice sent by email to the attention of the dedicated contact person within the party concerned, remained without effect eight (8) days after its receipt. Partial payment shall not interrupt the effects of this clause. The application of this clause makes all sums due immediately payable. The sums already paid shall remain irrevocably vested in the Company, unless the latter fails to meet its obligations. Each party reserves the right to terminate the contractual relationship at any time in the event of non-compliance by the other party with any of its obligations under the Special Conditions or the GTCs, without prejudice to any damages that may be claimed from the defaulting party. If the alleged breach is not remedied, the contractual relations between the parties shall end eight (8) days after sending an email to the attention of the dedicated contact person within the defaulting party, if the non-defaulting party sees fit to do so.
14.4. The Company may in any event terminate this agreement in case the Clients fails to comply with one of his obligations hereunder, subject to prior formal notice sent by email by the Company to the Client to the dedicated contact person and remained unheeded for eight (8) days following its receipt.
14.5. The effective termination of this agreement, for any reason whatsoever, leads to the immediate withdrawal by the Client of the software solution he has integrated into his website, as well as any script he may have used to do so. In addition, the Client shall refrain from using the Service, and his access to the Dashboard shall be disabled. Consequently, the Client shall no longer access the data stored therein, unless he has previously requested from the Company reversibility or extraction. Such request shall be specifically invoiced by the Company, unless otherwise agreed by the parties in advance. Notwithstanding the foregoing, the Client may also access the data according to their availability and accessibility, in the event of a free version of the Company's software solution and Service. The Company does not guarantee the security or confidentiality of the personal data accessible on the frontal part of the Company's software solution. In the event of extraction or reversibility, the Client may only use the extracted data for his Internet use, any commercial or advertising use being strictly prohibited. At all events, all or part of the data contained in the Client's Dashboard may be retained or destroyed by the Company at its discretion upon termination of this agreement. In case the Company decides to retain the said data, it shall use them solely for its own account, shall not transmit them to any third party, and shall use them exclusively for statistical purposes, performance comparison, storage in case the Client wishes to subscribe to the Service in the future, and for any other experimental purposes. At all events, these data may under no circumstances be used for commercial purposes. The Client also undertakes to spontaneously return to the Company any document or information to which he had access to during the execution of this agreement, regardless of the medium and the type of information or document concerned.
The Company and the Client undertake throughout the term hereof and for two (2) years following termination of their contractual relationship, for any reason whatsoever, (i) to consider as confidential and treat as such all general information (commercial, financial, strategic, etc.) and specific information provided by the other party in the context of the GTCs, (ii) not to communicate to third parties all or part of said information, (iii) to keep said information strictly confidential and to treat it with the same degree of confidentiality as the one granted by the other party to its own confidential information, (iv) to use said data only for the execution of the GTCs. Same confidentiality obligations must be observed by all persons who have access to this confidential information in the context of the execution of the GTCs. The obligation of confidentiality does not apply to information and data brought to the attention of the parties which have fallen into the public domain or which are on the verge of falling into it without this resulting from any of the parties. Any other communication or use of confidential information requires the prior written consent of the party who owns it. Upon termination of the GTCs, the parties undertake to return to each other all documents, information and/or confidential data of which they have become aware during the execution of the GTCs, not to use them for their own purpose and not to keep any copies.
The Company may freely and without time limit, include the Client's name, logo and/or trademark in a reference list, in any advertising, promotional or communication document relating to its activity, on its presentation brochure, on its website and in the press. The Client may do the same with the Company's name and/or trademark, it being specified that the Company may terminate this authorization at any time by notifying the Client its decision in writing.
17.1. These GTCs and the Special Conditions express all the obligations of the Company and the Client, to the exclusion of any other document or contract.
17.2. If one or more provisions of the GTCs are held invalid by any law or regulation or declared as such by the final ruling of a competent jurisdiction, they shall be deemed unwritten, it being specified that the other provisions of these GTCs shall retain their force and scope.
17.3. No delay or abstention by the Client or the Company in the exercise of their rights shall be considered as a waiver of all or part of the rights they hold under the GTCs.
These GTCs are subject to French law. Any dispute arising from the interpretation and/or execution of these GTCs shall be submitted to the competent courts within the jurisdiction of the Bordeaux Court of Appeal.