Article 1. Definitions
In the rest of these general conditions, each of the following expressions will take the meaning of its definition, namely:
- Corrupting means the wilful act, committed directly or indirectly through any person such as a third party intermediary, of (a) giving, offering, promising to, or (b) soliciting or accepting from, anyone (including any Public Official), on his own behalf or on behalf of a third party, any gift, gift, invitation, reward, or thing of value, which would be or could be perceived as an inducement to corrupt, or as a deliberate act of corruption, in any case with a view to inducing a person (including any public official) to perform his or her duties in an abusive or dishonest manner and/or to obtain an undue advantage.
- Anomaly means:
- either a malfunction of the Software Package, reproducible by MADIASOFT preventing its use in accordance with the documentation or, failing that, the validation of the results obtained during the tests of the Service by the Customer, prior to subscription.
- or, if provided for in the special conditions, a malfunction of the adaptations, reproducible by MADIASOFT preventing its use in accordance with the specifications of the said adaptations.
- Affiliate means any entity controlled by the Customer (the term “control” being understood as defined by Article L 233-3 of the French Commercial Code).
- Customer or subscriber: the natural or legal person who has subscribed to a MADIASOFT service
- Special conditions: means the quote worth purchase order or the online order form both objects of these General Conditions.
- General Conditions: means this document.
- Contract : refers to these General Conditions, the Special Conditions and any annexes thereto.
- Effective Date: Means the effective date of the Contract as indicated on the signature page of the purchase order or, failing that, the date of signature of the purchase order.
- Documentation: refers to the description of the functionalities and the instructions for use of the Software Package. It is provided in electronic form in French. All other documentation is excluded from the scope of the Agreement, including commercial documentation and training documentation
- Syntec Index: Index is used to measure the evolution of the cost of labor, mainly of an intellectual nature, for services provided.
- Additional services: Refers to services additional to the Service, which do not require specific developments. These services include analysis, configuration and training offered by MADIASOFT.
- Software package: set of functionalities of one or more programs and their Documentation, designed to be provided to several users for the same use. As part of the Contract, the Software Package also includes all updates from the publisher and, unless otherwise specified, all specific developments ordered by the customer.
- Services: Refers to standard application features delivered online as well as Updates and Support, billed in the form of subscription subscription or consumption statements.
- Trading in influence means the voluntary act of (i) giving, offering or promising to anyone (including any Public Official), or (ii) accepting from any person (including a Public Official), directly or indirectly, any gift, gift, invitation, retribution, or thing of value, on his own behalf or that of a third party, in any case with a view to abusing or having abused his real or supposed influence and to obtain a favorable decision or undue advantage of the share of a Public Official.
Article 2. SCOPE
These General Terms and Conditions of Use (GCU) constitute, in accordance with Article L 441-6 of the French Commercial Code, the sole basis of the commercial relationship between the parties (“the General Terms and Conditions”).
They apply, without restriction or reservation, to all services provided by MADIASOFT.
Their purpose is to define the conditions under which MADIASOFT provides services to professional Customers (“Customers” or “Customer”) who request it, by direct contact, electronically or via paper.
These General Terms and Conditions apply, without restriction or reservation, to all services rendered by MADIASOFT to Clients, and shall prevail, where applicable, over any other version and over the Client’s general conditions of purchase or others, regardless of the clauses that may appear on the Client’s documents.
These General Terms and Conditions supplemented by any special conditions and annexes constitute the Contract.
These General Terms and Conditions are accessible at any time online, on the www.madiasoft.com website. They enter into force as soon as they are put online and cannot apply to contracts signed prior to the posting online. The version of the General Terms and Conditions applicable to the Customer is the one in force on the website on the date of signature of the Contract.
MADIASOFT reserves the right to modify the General Terms and Conditions from time to time. He will inform the Customer by e-mail within ten (10) days. Upon receipt of notification of the change to the General Conditions, and if the new version of the General Conditions does not suit him, the Customer will have a period of thirty (30) days to terminate the contract, failing which the new General Conditions apply and cancel the previous ones.
Article 3. CUSTOMER INFORMATION
It is the Client’s responsibility to ensure:
- The suitability of the Service for its own needs, in particular on the basis of the information provided during the demonstrations and own testing period of the Service;
- That he has the necessary competence for access to and use of the Service. It is the Client’s responsibility to verify, in accordance with the practices of his profession, the results obtained, in particular with the help of the Documentation and the tests of the Service.
In accordance with the regulations in force, these General Terms and Conditions are systematically communicated to any Customer who requests them, to enable him to place an order with MADIASOFT.
Any order for the MADIASOFT Service implies full acceptance of the Contract on the part of the Customer.
Article 4.CONTRACTUAL DOCUMENTS
The Contract consists of the following contractual documents:
- These Terms and Conditions;
- special conditions;
- Possible annexes: List of correspondents, Business continuity plan
Article 5. ADDITIONAL SERVICES
The Contract does not cover additional Services recommended by MADIASOFT or requested by the Client to meet its specific needs. Thus, for example, consulting, training and consulting services will be the subject of a separate contract between the Client and MADIASOFT.
Article 6. DURATION, RENEWAL
This Contract is concluded for an initial period of one year renewable by tacit agreement
This Agreement is effective on the effective date as determined on the signature page and will remain in effect for the duration of the Service.
Article 7. TERMINATION OF THE CONTRACT
In the event of termination, regardless of the cause, the Customer will cease to use the Service from the day of termination of the Agreement. In addition, the latter will be liable to MADIASOFT for invoices not paid on the date of termination.
The termination, or the termination for any reason whatsoever, of this Contract does not give rise to the refund of the sums collected by MADIASOFT
The Customer is informed that a termination of contract means the initiation of the procedure for erasing this data as defined in the article DATA RETURN.
- Termination for default
In the event of a breach by one of the Parties of any of the obligations incumbent on it under the Contract, the other Party may give it formal notice to remedy this breach within a maximum period of thirty (30) days, by email.
If at the end of this period of thirty (30) calendar days, the breach has not been or could not be remedied, the other Party may automatically terminate, by email all or part of the Contract, without prejudice to all damages to which it may be entitled.
Upon receipt of the Customer’s termination request by email, MADIASOFT will send an acknowledgment of receipt. The burden of proof of receipt by MADIASOFT of the termination request rests with the Customer
- Termination for convenience of the customer
Unless otherwise stipulated in the special conditions, the Client has the right to terminate the Contract at any time subject to expressly notifying MADIASOFT of its intention. However, one month’s notice begins to run from the date of receipt of the request for termination is required before the request takes effect.
Upon receipt of the Customer’s termination request by email, MADIASOFT will send an acknowledgment of receipt. The burden of proof of receipt by MADIASOFT of the termination request rests with the Customer.
After a period of eight days no copy can be provided
- Termination for convenience of MADIASOFT
MADIASOFT reserves the right to terminate the Contract. This termination will take effect on the date of the expiry of the current period, in strict compliance with a notice period of 3 months.
Article 8. RETURN OF DATA
At the end or in case of termination of the Contract, access to the Service is closed on the last day of the Service. The Customer must therefore have, before this deadline, (i) retrieved the Customer Data accessible through the functionalities of the Service or (ii) requested MADIASOFT to return a copy of the last backup of the Customer Data. Unless otherwise stipulated in the special conditions, any return of a copy of the last backup of the Customer Data by MADIASOFT will be made in a standard market format chosen by MADIASOFT and will be made available to the Customer in the form of a download or, if the volume is too large, by sending an external medium, and this, as part of a service billable at the rate in force. Unless otherwise stipulated in the special conditions, from the sixtieth (60th) day from the day of termination of the Agreement, the process of erasure of Customer Data will be initiated for the purpose of rendering it unusable. This erasure will be performed on production data as well as on backed up data, depending on backup retention periods
Article 9. RATES
The Service is provided at the rate specified in the special conditions or, failing that, at the rates of the service in force on the day of the signature of the Contract by the Customer.
The rates, in force, are expressed in euros.
The price invoiced to the Customer is the price excluding VAT plus the VAT displayed inclusive of VAT on the invoice sent by MADIASOFT to the Customer.
The Customer acknowledges having been informed of the pricing method and the price of the service which appear in particular on the “Quotation equivalent to purchase order” or in the online order form.
Article 10. INVOICING AND TERMS OF PAYMENT
The service will be invoiced as soon as it is made available. MADIASOFT reserves the right to issue invoices electronically. Unless otherwise provided and specific contained in the special conditions, the Service will be invoiced by monthly debit from a bank located in France or in the Dom-Tom:
- monthly, term to expire, when it is a subscription;
- monthly in arrears when it comes to consumption.
The first billing of the subscription will take place on the date of communication by MADIASOFT to the Customer of the access codes to the Service (Effective Commissioning), or failing that, on the first day of the following month. The invoicing of the Service will be carried out by MADIASOFT on the basis of calendar periods and not anniversary periods. If applicable, the first and/or last invoice will be issued on a pro-rata basis.
MADIASOFT’s invoices relating to the Service (including for online orders) will be paid by the Customer by direct debit without discount thirty (30) days from the date of issue of the invoice. The Customer undertakes to provide his bank details (IBAN and BIC) and to complete the SEPA Mandate in paper or electronic form. From the implementation of the SEPA Mandate and in the event that the Client successively signs several contracts and chooses to pay each time the sums due to MADIASOFT by direct debit, he accepts that each of these contracts is governed by a common and single direct debit authorization whose amount varies, accordingly, depending on the additions and deletions of contracts over time.
Any delay in payment will automatically incur late penalties equal to three (3) times the legal interest rate and calculated on the amount excluding VAT of the sums remaining due, and on the other hand, compensation for recovery costs in the amount of € 40.00, from the day after the date of payment of the invoice.
The non-payment of an invoice by the Customer 15 days after the sending of a formal notice to perform, remained, in whole or in part, without effect, is considered as a serious breach that authorizes MADIASOFT to terminate the contract under the conditions defined in the TERMINATION article above. The formal notice may be notified by email with acknowledgment of receipt.
In case of suspension of the contract for non-payment, the Customer will bear a reactivation fee of the account equivalent to one twelfth of the value of the annual contract.
It is recalled that the invoiced Service does not include telecommunication, Internet connection or any other charge caused by access to the service that the Customer will otherwise assume in their entirety and under his full responsibility.
MADIASOFT may review the unit subscription price for its service at the time of contract renewal, provided that it has notified the Customer at least three months in writing in advance. If the Customer does not consent to the increase in the monthly subscription fee, the Customer may terminate the contract in writing in accordance with the conditions described in Article TERMINATION. In the absence of having notified MADIASOFT in writing, this contract will be renewed in its entirety including the increases, the Customer’s consent being considered acquired.
Article 11. PRICE REVISION
The applicable rules on price revision result from Articles L. 112-1 to L. 112-4 of the Monetary and Financial Code. Only clauses providing for indexations based on the price of goods, products or services directly related to the subject matter of the contract or to the activity of one of the parties are permitted.
MADIASOFT has chosen the Syntec index as the index for the contract.
Beyond the initial duration of the Service, MADIASOFT may modify, once per calendar year, the prices of the Contract.
The amount of the revised fee will be determined by applying the following formula:
The price of a service may be revised at each contractual deadline according to a formula that takes into account the Syntec index. For example (area of negotiation): P1=P0 x
S1 /S0 Where P1 = revised price, P0 = original contract price, S0 = Syntec reference index of the month of the date of signature of the contract, S1= last index published at the date of revision.
In the event of refusal by the Customer of the increase in the amounts invoiced, the latter will be entitled to terminate the Contract under the conditions of the article TERMINATION under the subheading Termination for convenience of the customer.
Article 12. CLIENT OBLIGATIONS
In order to allow the performance of the service, the Customer undertakes in particular:
- To refer to the Documentation before each request for intervention;
- To make available to MADIASOFT any necessary information requested by MADIASOFT for the understanding and resolution of the Anomalies and Malfunctions encountered;
- Designate, within it, a competent interlocutor in charge of the treatment of Anomalies and Malfunctions and ensure that he is available during any intervention of MADIASOFT;
- To facilitate access for MADIASOFT personnel to all its facilities if necessary and to ensure that MADIASOFT personnel have free access to the premises as well as to indicate a suitable correspondent;
- To install and administer its equipment and applications not provided by MADIASOFT, as well as its networks.
The Customer acknowledges having been sufficiently informed of the terms of access, implementation and use of the service as well as the minimum recommended configuration.
The Customer also:
- undertakes not to distribute the Service, make it available to third parties or rent it unless otherwise provided in the special conditions;
- undertakes not to alter or disrupt the integrity or performance of the Service or the data contained therein;
- undertakes not to attempt to gain unauthorized access to the Service or its associated systems or networks.
- undertakes not to attempt to use any contractually unauthorized feature of the KAFINEA Service accessible to it
In the event that MADIASOFT finds a breach hereof, it reserves the right, without notice and without formal notice, to suspend the service provided, to delete any information likely to contravene the aforementioned regulations and to terminate this contract under the conditions defined in Article TERMINATION.
The Customer declares to be familiar with the Internet, its characteristics and limitations, and acknowledges in particular:
- That data transmissions on the Internet benefit only from relative technical reliability, which circulates on heterogeneous networks with various characteristics and technical capacities that are sometimes saturated at certain times of the day.
- That certain specific networks may depend on particular agreements and be subject to access restrictions that will not allow access to the Service.
- That users of the Service are likely to be located anywhere in the world, and that the content of the Service may be reproduced, represented or more generally disseminated without any geographical limitation.
- That the data circulating on the Internet is not protected against possible misappropriation and that thus the communication of passwords, confidential codes and more generally any sensitive information is carried out by the Customer at his own risk.
- That the provision of the content of the Service to users may be subject to intrusion by unauthorized third parties and therefore be corrupted despite the issuance by MADIASOFT of password-protected access.
Article 14. Intellectual Property
MADIASOFT holds all applicable intellectual property rights relating to the Service or declares, when a third party holds the intellectual property, to have obtained from this third party the right to market or distribute the Service.This Agreement does not confer on the Client any ownership rights relating to the Service, its technology or intellectual property rights held by MADIASOFT or by a third party.
The Client undertakes not to infringe, directly or indirectly, or through third parties, the property rights of the MADIASOFT Service. Indeed, the provision of the Software Package by MADIASOFT does not imply the transfer of property rights on this Software Package and on any of its elements, nor on the associated documentation, which remain the exclusive property of MADIASOFT
Consequently, the Customer shall refrain from any adaptation, modification, even partial, transformation, decompilation, functional analysis or arrangement, transcription and translation into other languages of the software, for any reason whatsoever.
The Client shall refrain from using MADIASOFT’s services for purposes other than those described herein, and in particular from making them available to third parties without prior written authorization.
The Customer agrees to bear the cost of acquiring, setting up, and maintaining the means of access to the service as well as the costs of installation and implementation of the service.
Article 15. MADIASOFT STAFF
As part of the Contract, additional Services may also be requested by the customer, such as analysis, configuration, training. This could lead MADIASOFT staff to be present at the Client’s premises.
The MADIASOFT staff assigned to the performance of the Services remains under the administrative control and the sole hierarchical and disciplinary authority of MADIASOFT throughout the duration of the Contract.
MADIASOFT ensures the supervision and control of its staff, including when the Services are carried out on the Client’s premises.
MADIASOFT undertakes to provide sufficient staff with the competence required for the performance of the Services.
- Health and safety
MADIASOFT undertakes to take the necessary steps to ensure that its staff when they are on the Client’s premises comply with the Client’s internal regulations and the provisions applicable to external companies present in said premises and in particular those relating to health and safety. The Client, for its part, undertakes to bring these provisions to the attention of MADIASOFT.
The Customer and MADIASOFT will comply with the provisions of Decree No. 92158 of 20.02.1992 setting the special health and safety requirements applicable to work carried out by an external company on the Customer’s premises.
In the event that, as part of the Services, MADIASOFT staff use the Client’s information system, MADIASOFT undertakes to take the necessary steps to ensure that its staff specifically complies on this occasion with all provisions gathered in the document: in the good practices of the trade, good practices and usage communicated by the customer and any document communicated in the special conditions including the Charters of good use, and internal circulars.
Article 16. OBLIGATIONS AND GUARANTEES OF MADIASOFT
MADIASOFT undertakes to make every effort to perform the services provided for in the contract with its best care and within the deadlines provided. MADIASOFT is only bound by an obligation of means and not of result, insofar as the Client has fulfilled the obligations incumbent on it.
MADIASOFT undertakes to perform the Service in accordance with the rules of the art of its profession and in particular to bring its know-how, experience and expertise, as well as all equipment and software.
MADIASOFT is solely responsible for the means and methods it implements hereunder.
MADIASOFT will comply with all laws and regulations (as well as any changes thereto) applicable to the provision of the Service and the performance of the Services.
MADIASOFT undertakes to notify the Client of any problem arising during the performance of the Services.
MADIASOFT guarantees compliance with these provisions by its staff and any subcontractors.
MADIASOFT undertakes to return to the Client any Client Data as well as any equipment, tools or other elements provided to it by the Client as part of the performance of the Service, at the Client’s request and at the latest, at the expiry or upon termination, for any reason whatsoever, of the Agreement.
MADIASOFT declares and guarantees to hold full ownership of the Software Package and including, as a reminder, unless special conditions to the contrary, any specific developments ordered by the customer.
- Duty of loyalty
The Parties agree, throughout the duration of the Contract, to perform their respective obligations loyally and seek in good faith all possible solutions likely to achieve a rapid and balanced resolution of any problems or difficulties that may arise during the performance of the Contract.
- Combating hidden work
MADIASOFT hereby undertakes to comply with French regulations relating to the fight against concealed work or any other similar regulation applicable when the Services are performed in another territory.
MADIASOFT will decide alone, under its responsibility, the resources, tools, methods and means of execution necessary for the realization of the service ordered.
Under no circumstances can MADIASOFT be held liable for any damage of any nature whatsoever, including operating loss, loss of data or any other financial loss resulting from the use or inability to use the system, equipment or services provided. The Customer assumes any risk of loss or damage that may affect its equipment or files except those mentioned in this contract.
Article 17. FINANCIAL REGULATION
- Fight against corruption
MADIASOFT declares and guarantees to the Customer at all times, during the term of the Contract:
- That it is aware of any legislation applicable to the Contract in terms of anti-corruption, and that it has implemented rules and procedures to comply with said legislation and adapt to future developments;
- That neither MADIASOFT nor any of the persons it controls (these “controlled” persons including managers, employees and employees) has committed and will not commit, directly or indirectly, any Act of Corruption;
- That it has put in place appropriate rules, systems, procedures and controls to prevent the commission of Acts of Corruption by itself, its agents or other intermediaries and controlled persons, and to ensure that any evidence or suspicion of the commission of an Act of Corruption will be thoroughly investigated, will be treated with due diligence and reported to the Client. Proof of the existence of these rules, systems, procedures and controls will be provided to the Customer upon request;
- That neither MADIASOFT nor any of its agents, intermediaries or controlled persons is prohibited (or treated as such) by a governmental or international body from responding to calls for tenders, contacting or working with this body due to actual or suspected Acts of Corruption;
- Combating conflicts of interest
Throughout the duration of the Contract, MADIASOFT declares and guarantees not to maintain personal or professional relations that would contravene its professional duties or put it in a situation of conflict of interest vis-à-vis the Client.
MADIASOFT undertakes to notify the Client without delay of any conflict of interest related to the commercial relationship between the Parties and to which it may be subject. If the Client considers that the conflict of interest declared by MADIASOFT is incompatible with the continuation of the Contract, it may terminate, ipso jure, without notice and without compensation, the Contract.
- Fight against influence peddling
MADIASOFT and its agents are not related to, nor should they interact with, any Public Official, government or governmental entity in connection with the services provided to the Client. For the purposes of this section, the term “Public Official” includes all elected officials, dignitaries, candidates for public office, members of royal families, magistrates, civil servants or employees, regardless of rank, or any person belonging to or acting on behalf of:
- a government (foreign, national or local) including any department, body, regulator, or any of their agencies or bodies;
- a government department or public authority (including, but not limited to, customs or tax authorities, embassies and any permitting agency);
- a local or regional public service;
- a state-owned or controlled enterprise (including, but not limited to, state-owned or controlled enterprises, public hospitals, universities, sovereign wealth funds or any other state-sponsored entity);
- a political party; or
- an international court or an international public organization (e.g., the United Nations).
Article 18. WARRANTY INFRINGEMENT
In the event of a claim relating to the infringement by the Software Package of an intellectual property right in France MADIASOFT may, at its option and at its expense, either replace or modify all or any part of the Software Package, or obtain for the Customer a license to use, in order to allow him to use the Service, provided that the Customer has complied with the following conditions:
- That the Client has accepted and performed all of its obligations under this document,
- That the Customer has notified MADIASOFT, within a week, in writing, of the infringement action or the declaration preceding this action,
- That MADIASOFT is able to defend its own interests and those of the Client, and to do this, that the Client collaborates loyally with MADIASOFT by providing all the elements, information and assistance necessary to carry out such a defence.
In the event that none of these measures is reasonably possible, MADIASOFT may unilaterally decide to terminate the Contract and refund the Customer the fees paid over the last twelve (12) months of use of the Service. The provisions of this article define all of MADIASOFT’s obligations regarding patent and copyright infringement as a result of the use of the Software Package
Section 19. RESPONSIBILITIES OF MADIASOFT
MADIASOFT cannot be held liable in the event of non-performance or improper performance of its obligations which is due, either to the fact of the Client, or to the insurmountable and unforeseeable fact of a third party to the contract, or to a case of Force majeure, event or incident beyond the control of MADIASOFT. MADIASOFT cannot be held liable for any damage resulting from this delay.
The Client agrees that MADIASOFT shall not incur any liability for any loss of profits, commercial disturbance, or claims that the Client may suffer; requests or claims made against the Customer and emanating from any third party.
The Customer agrees that this Agreement is not intended to establish full liability for loss, damage or injury resulting directly or indirectly from the use of the System and Services, which have been specifically designed to prevent them. In any event, in the event that it is proven that MADIASOFT is liable for loss, damage or injury under this contract, the Client agrees that, whatever the basis of its claim, and the procedure followed to implement it, the possible liability of MADIASOFT for the performance of the obligations provided for in this contract, shall be limited to an amount not exceeding the amount of the annual fee of the Customer’s subscription.
This amount does not constitute a penalty but compensation. This compensation constitutes the exclusive remedy in the event of defect in the services or equipment, and the provisions of this section apply, in the event of loss, damage or injury, regardless of the cause or origin, directly or indirectly to persons or property in the performance or non-performance of MADIASOFT’s obligations, negligently or otherwise, of MADIASOFT, its agents or employees.
The above provisions are intended to establish the maximum amount recoverable by the Client and to determine MADIASOFT’s liability, i.e. the amount of the annual subscription fee.
If the Customer wishes more extensive coverage, he may be offered specific insurance coverage whose cost would be separate from the cost of this contract.
It is understood that, the subscription to this contract implies abandonment on the part of the Client of the right to invoke advice or advertising from MADIASOFT. Customer agrees that any representation, promise, condition, inducement or warranty, express or implied, including merchantability or merchantability, not stated in writing in this agreement shall not be binding on either party.
For all requests sent by email, MADIASOFT reserves the right to contact the customer and ask him for confirmation of his request by registered letter with acknowledgment of receipt.
Section 20. RESPONSIBILITY OF THE CUSTOMER
The Client guarantees that it has all authorizations for the use and/or dissemination in the territory of information and data of any kind, hosted by MADIASOFT and is solely responsible for the consequences of making them available to the public, even if restricted on the Internet. In particular, he is solely responsible for any damage suffered or borne by MADIASOFT, due to the presence of illegal data on the Client’s pages, such as defamatory and racist remarks.
- In the event of a breach of the provisions of the law of 21 June 2004 (“LCEN”) established by a judicial authority within the meaning of the same law, or in the event of an injunction issued by the judicial authority to delete contentious content, MADIASOFT may take any necessary measure to delete this content or prevent access to it. He informs the Customer thereof.
- In the event of an amicable complaint or formal notice from a third party addressed to MADIASOFT considering that the content is illegal or causes it harm, MADIASOFT will inform the Customer without delay.
- In the absence of deletion of the disputed Content by the Customer or by MADIASOFT – due to the Customer’s refusal or the latter’s silence – the Customer guarantees MADIASOFT from any recourse and condemnation to damages to which MADIASOFT may be exposed because of this claim.
- However, by way of derogation from the foregoing, MADIASOFT may take any useful measure to remove access to the disputed content or to make access to it impossible, if the content appears manifestly illegal and will inform the Client thereof. In the latter case, MADIASOFT will inform the Client as soon as possible.
The suspension or interruption of the content for the reasons mentioned above will not entitle the Customer to the payment of any compensation from MADIASOFT. In addition, the Customer will remain liable to MADIASOFT for the full price agreed throughout the period of suspension or interruption.
Section 21. AUDIT DU CLIENT
The Client may request additional explanations from MADIASOFT if the documents provided do not allow it to verify compliance with MADIASOFT’s obligations as a subcontractor under the Contract. The Customer then makes a written request to MADIASOFT, by email, in which he justifies his request for additional explanation. MADIASOFT undertakes to provide a response to the Customer as soon as possible.
Upon receipt of the Customer’s request, MADIASOFT will send an acknowledgment of receipt. The burden of proof of receipt by MADIASOFT of the audit request rests with the Client.
If, despite MADIASOFT’s response, the Client questions the veracity or completeness of the information transmitted or in the event of imminent risks to the security of Personal Data, the Client may carry out an on-site audit subject to compliance with the following conditions: i. the Client makes a written request for an on-site audit to MADIASOFT, by registered letter with acknowledgment of receipt, justifying and documenting his request; Ii. MADIASOFT undertakes to provide a response to the Client by specifying the scope and conditions for carrying out the on-site audit. As the security of MADIASOFT’s information system and data centers is based on their restricted access, the scope of an on-site audit will be limited to MADIASOFT’s processes allowing the Service to operate as a subcontractor of the Personal Data processing (s) entrusted by the Client to MADIASOFT. The duration of the audit shall not exceed two (2) working days which will be invoiced by MADIASOFT to the Client according to the price of services in force at the time of the audit; Iii. This audit mission may be carried out by the Client’s internal auditors or may be entrusted to any MADIASOFT at the choice of the Client, which is not a competitor of MADIASOFT; Iv. The auditors must make a formal commitment not to disclose the information collected at MADIASOFT regardless of the method of acquisition. The signature of the confidentiality agreement by the auditors must be prior to the audit and communicated to MADIASOFT.
As part of the audit, MADIASOFT will provide access to its premises, and in general to the documents and people necessary so that the auditors can conduct the audit in satisfactory conditions. It is understood that this audit must not have the consequence of disrupting the operation of the Service.
Section 22. COMPETENCE AND AUTHORITY OF THE SIGNATORY
The person who signs this contract on behalf of the Customer undertakes to have the authority to sign it and allow the installation of the systems described herein as well as the authority to contract the services provided.
Section 23. USE OF THE SERVICE
MADIASOFT’s unlimited plans are designed to allow its Clients normal use of its services without having to worry about the number of users or constant changes in rates. To guarantee them this comfort, MADIASOFT reserves the right to qualify as abusive a use of the service whose cost of the necessary resources (cpu, ram, storage, …) would be higher than 80% of the tax-free sales rate invoiced to the customer and this over more than two consecutive months.
In case of misuse of its services according to the package to which the Customer has subscribed, the latter will be contacted by the MADIASOFT sales department who will propose the evolution towards a more adapted package. The Customer will of course be free to refuse and his service would then be suspended according to the terms of the article TERMINATION
Section 24. PASSWORD, ENCRYPTION KEY AND SECURITY
In the event that the Customer subscribes to an offer of encrypted remote backup of computer data :
a – Data backup
The Customer authorizes MADIASOFT to install backup software on its computers. The Client’s files are encrypted by the software before they are transferred to MADIASOFT’s servers The hosted data is encrypted with a key for which only the Client is the holder and responsible. It is the full and entire responsibility of the Customer to keep the encryption key that will have been defined during the initial commissioning. MADIASOFT does not store the encryption keys of Customers. It can in no way be held responsible for the loss of the encryption key without which the stored data is not usable. MADIASOFT undertakes to host computer data on its server and to ensure its security in its state of collection. MADIASOFT guarantees that under no circumstances will the contents of the Customer’s files be accessible to anyone without the express authorization of the Customer.
b – Data recovery
Return of computer data as part of an encrypted remote backup service of computer data: MADIASOFT undertakes to return the files on its servers in the state in which the Customer sent them, provided of course that they have been included in its list of files to be backed up. The Customer has taken note that he can at any time recover all or part of his computer data autonomously via the Internet using the backup software provided by MADIASOFT. MADIASOFT may make the aforementioned returns via any physical medium of its choice against invoicing, which the Customer expressly accepts. MADIASOFT provides, upon acceptance of a quote by the Customer, the intervention of a technician to assist in the reinstallation of the files returned to the Customer’s computer.
Section 25. CONFIDENTIALITY
The parties shall refrain from communicating to anyone, directly or indirectly, all or part of the information of any kind, commercial, industrial, technical, financial, nominative, etc., relating to the other party that has been communicated to them or of which they would have become aware during the execution of this contract. This obligation will not apply if the communication of the information to a third party is necessary for the execution of this contract, provided, however, that MADIASOFT guarantees compliance with this obligation of confidentiality by the third party. The obligation of confidentiality shall not apply to information in the public domain at the date of disclosure.
Confidential information is not information which, in the absence of fault, is in the public domain; those of which the receiving party was in possession prior to their communication, without having received them from the other party; those communicated to the parties by third parties, without condition of confidentiality; and those that each party develops independently.
The terms of this obligation are valid for the duration of the Contract and for two (2) years following its termination.
Section 26. ADVERTISING
MADIASOFT may mention the name of the Customer for the promotion of its Software Packages. Thus, the Customer accepts that MADIASOFT may refer to its name, company name, logo or registered trademark of the Customer on any media medium including all MADIASOFT websites and partners worldwide. In addition, the Customer may be asked to carry out a testimonial on his Customer experience at MADIASOFT.
The Customer may, however, inform MADIASOFT by any written means and at any time of its refusal and/or request, if necessary, the withdrawal of the aforementioned reference.
Section 27.ENTIRE AGREEMENT. PARTIAL INVALIDITY
These clauses, articles and specified annexes represent the entire General Terms and Conditions and the contract. Any representation, promise, condition, inducement or warranty, express or implied, oral or written, not mentioned in writing in these Terms and Conditions shall in no event give rise to any new obligations hereunder. The terms and conditions so mentioned apply as they are, without modification except in writing as mentioned below. If any of the stipulations of these General Terms and Conditions is declared null and void with regard to a rule of law or a judicial decision that has become final, it will be deemed unwritten. However, the other provisions hereof shall remain in full force and effect, and such Terms and Conditions shall remain in full force and effect.
The fact that one party does not avail itself of a breach by the other party, of any of the obligations under these, cannot be construed in the future as a waiver of the obligation at issue.
Section 28. LANGUAGE OF THE CONTRACT AND APPLICABLE LAW
By express agreement between the parties, these General Terms and Conditions and the operations resulting from them are governed by French law.
They are written in French. In the event that they are translated into one or more languages, only the French text shall prevail in the event of a dispute.
Section 29. FORCE MAJEURE
Neither party can be held responsible for its delay or failure in the performance of its obligations, as described herein, if this delay or failure is due to the occurrence of a case of force majeure within the meaning of Article 1218 of the Civil Code. It is expressly agreed between the Parties that the case of force majeure expressly concerns any event that is beyond their control, and which could not reasonably have been foreseen at the time of the conclusion of the Contract and whose effects cannot be avoided by measures in accordance with the state of the art.
In the event of such a case of force majeure, the execution of this contract will be suspended until the disappearance, extinction or cessation of the case of force majeure. However, if the case of force majeure persists beyond a period of thirty (30) days, the parties must come together to discuss a possible modification of the Contract.
The deadlines provided for in this contract will be automatically postponed according to the duration of the case of force majeure.
In the absence of an agreement of the parties within thirty (30) days and if the case of force majeure continues, each of the Parties will have the right to terminate this contract ipso jure, without any compensation being due by either party, by email addressed to the other party.
However, if as soon as the case of force majeure occurs, it appears that the delay justifies the termination of this contract, it is terminated automatically and the parties are released from their obligations.
Section 30. PERSONAL DATA
In all cases where they appear with a capital letter, in the singular or plural, in this article, these terms will have the meaning defined below: ” Data Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing. Where the purposes and means of such processing are determined by Union or Member State law, the controller may be designated or the specific criteria for its designation may be provided for by Union or Member State law. “Processor” means the natural or legal person, public authority, agency or other body that processes Personal Data on behalf of the controller. “Applicable Regulation” means all applicable European Union directives and regulations governing the use and/or processing of personal data, including in particular the GDPR and any associated national laws. “EEA” means the European Economic Area. “GDPR ” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, repealing Directive 95/46/EC (General Data Protection Regulation). “Personal Data” means any information relating to an identified or identifiable natural person (“Data Subject”). An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic or mental identity of that natural person, economic, cultural or social. “Customer Personal Data” means the data, information or documents provided, entered or transmitted by or on behalf of the Customer in the Services, which may include data relating to its customers and/or employees. “Processing” means any operation or set of operations whether or not performed by automated means and applied to personal data or sets of personal data, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, Access, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction, and “process”, “treaty” and “deal/process” shall be construed accordingly. “Supervisory Authority” means an independent public authority established by a Member State which deals with the processing of personal data.
- Processing of Personal Data
MADIASOFT as a subcontractor of the Client’s Personal Data
The Parties acknowledge and accept that the Customer is the Data Controller of the Personal Data collected and processed in the context of the performance of the Contract and that it alone assumes full responsibility for the compliance of such Processing with the Applicable Regulations.
As part of the execution of this Contract, MADIASOFT in its capacity as Subcontractor undertakes to process Personal Data on behalf of the Data Controller under the conditions defined below:
The Customer warrants and declares:
- That it complies with the Applicable Regulations and ensures that its instructions to MADIASOFT for the Processing of Personal Data comply with them;
- That it is authorized, in accordance with the Applicable Regulations, to communicate to MADIASOFT the Personal Data of the Persons Concerned by said Processing;
- That it will obtain, where applicable, the consents of the Persons Concerned by said Processing, in compliance with the Applicable Regulations, in order to:
- To communicate to MADIASOFT such Personal Data of the Client;
- To allow MADIASOFT to process the Client’s Personal Data in connection with the execution of these General Terms and Conditions and;
- That MADIASOFT may communicate such Personal Data: (a) to its service provider partners and affiliates; (b) to any public authority where applicable; (c) to any third party in the context of the performance of a legal or regulatory obligation incumbent on MADIASOFT; and (d) to any other person entitled to request disclosure of the information, including where the recipients of the Personal Data are located outside the European Economic Area.
MADIASOFT guarantees and declares that when it acts as a Subcontractor, it does not process the Customer’s Personal Data:
- That as far as it is necessary for the execution of the General Conditions and/or;
- Following the written instructions of the Customer.
MADIASOFT as Data Controller of the Client’s Personal Data
Analysis of Personal Data
- To send the Customer advertising or marketing messages (including messages in the product or banner message windows) or information that may be useful to the Customer, depending on his use of MADIASOFT Services and Products;
- To carry out research and development in order to improve the Services, products and applications of MADIASOFT and/or its Affiliates;
- Develop and provide existing and new services and features (including statistical analysis, benchmarking or forecasting services);
- To offer the Customer location-based services (e.g. location-related content) for which MADIASOFT collects geolocation data in order to offer the Customer a relevant experience,
it being understood that MADIASOFT ensures that this collected information is processed pseudonymously and is displayed only as a whole and not in connection with the Client or any other Data Subject. The Customer may at any time request MADIASOFT to cease the use of the Customer’s Personal Data as described in this paragraph by contacting MADIASOFT at the following address: firstname.lastname@example.org.
- Obligations of MADIASOFT when it comes to the Client
MADIASOFT is committed to:
- Assist the Client, as far as possible, by appropriate technical and organisational measures, in fulfilling its obligation to respond to individual requests to exercise the rights of Data Subjects;
- Assist the Client, as far as possible and on the basis of the information available to MADIASOFT, in order to enable the latter to comply with its obligations relating to:
- Notifications to the Supervisory Authorities;
- Prior consultation with such Authorities;
- Notifying Data Subjects of any breach and;
- Privacy impact assessments.
- Obligations of MADIASOFT regarding its staff
MADIASOFT is committed to:
- Take all reasonable steps to ensure that any employee with access to Personal Data complies with their obligations hereunder;
- Ensure that access to Personal Data is strictly limited to employees who need access to it for the exclusive purposes of executing the General Terms and Conditions;
- Ensure that employees authorized to process Personal Data have undertaken to respect its confidentiality, or are bound by an appropriate legal obligation of confidentiality. If required by the Applicable Regulations, MADIASOFT will appoint a Data Protection Officer and make available the information relating to such appointment.
- Security and audit
MADIASOFT implements and maintains technical and organizational security measures, in accordance with recognized best practices in IT security and appropriate to the risks presented by the Personal Data Processing activity, to protect Personal Data against any unauthorized or unlawful Processing and loss, alteration, or accidental communication to a third party of such Data.
Subject to any existing obligation of confidentiality towards a third party, MADIASOFT undertakes to make available to the Client all information reasonably necessary to enable it to demonstrate compliance with its own obligations hereunder. As such, MADIASOFT may in particular provide the Client with any security audit report drawn up by it or any independent auditor. Failing this or at the request of the Client, MADIASOFT undertakes to allow independent audits to be carried out, including inspections by a qualified third-party auditor mandated by the Client and approved by MADIASOFT, at the Client’s expense.
- Data breach
MADIASOFT will notify the Client if it becomes aware of a breach of security rules resulting in the accidental or unlawful destruction, loss, alteration, unauthorized communication to a third party of Personal Data or unauthorized access to such data, resulting from an act or omission on the part of MADIASOFT or its subcontractors.
- Return and destruction
At the end of the General Terms and Conditions and at the request of the Client, MADIASOFT will delete or return to him all Personal Data concerning him and destroy all existing copies of such Data, unless MADIASOFT is under a legal obligation to retain them or has another legitimate business reason to do so.
- Use of subcontractors
MADIASOFT may not use a subcontractor to carry out Processing on behalf of the Client without its prior written authorisation. If the use of a subcontractor is accepted by the Client, MADIASOFT will ensure that the obligations hereunder are carried over to the said subcontractor.
Section 31. AMICABLE SETTLEMENT OF DISPUTES AND COMPETENT COURT
In order to find together a solution to any dispute to which this contract may give rise concerning its validity, interpretation, execution, non-performance, interruption, termination, consequences and consequences, the parties agree to meet within 15 days of receipt of a letter with acknowledgment of receipt, notified by one of the two parties. A mediator will be seized at the initiative of the most diligent party. The costs of mediation will be borne by half, by each of the parties.
In the absence of an amicable agreement between the two parties, the only jurisdiction recognized and whose jurisdiction is accepted by them is the Commercial Court of Paris, notwithstanding multiple defendants or third-party claims, even for emergency or protective proceedings, in summary proceedings or by request.
Section 32. VARIOUS
None of the provisions of the General Terms and Conditions may be interpreted as creating, between the Client and MADIASOFT, a mandate, a subsidiary, an agent’s or employee-to-employer relationship, each party acting independently.