Daiteo – General Terms of Sale
Dated January 1, 2024
Previous versions are available upon request at legal@daiteo.io
This License Agreement (hereinafter the “Agreement”) is intended to define the terms under which Daiteo undertakes to make available to the Client the Daiteo Solution as defined below, as well as any associated services. The Agreement is linked to an associated Purchase Order in which the Royalty is defined.
By signing the Daiteo Purchase Order, you confirm that you have read, understood, and accepted the terms of this Agreement.
Article 1 – Object
1.1. – The purpose of the agreement is to define the contractual conditions governing the use, by the Client, of the Services offered by Daiteo in SaaS mode.
1.2. – Daiteo grants to the Client, who accepts it, on a personal, non-exclusive, non-transferable, and non-assignable basis, a right of access and use of Daiteo’s Services, the specifications of which are detailed in the appendix to this agreement.
Article 2 – Definitions
2.1. – Client Administrator: refers to the Daiteo contact authorized to manage the use of the Services on behalf of the Client, including by assigning access rights to regular Users.
2.2. – Defect: refers to any malfunction of the software, notified by the Client to the Provider, and reproducible by Daiteo, resulting in results not conforming to the functionalities described in the current documentation. This defect can be classified as minor, severe, or blocking depending on its severity.
2.3. – Data: refers, in this agreement, to data of any type (information, structured or unstructured data, etc.), owned by the Client and made accessible to the Provider solely within the framework of the processing implemented by the Software. This Data is and remains the property of the Client.
2.4. – Software as a Service, also known as “SaaS” or “Software as a Service” or “Software” in this agreement: refers to software provided through a subscription and including Services, as well as Software updates and documentation.
2.5. – Authentication Means: refers to the process specific to each user allowing secure and personal access to the Software. Authentication means, as well as how to use them and ensure their confidentiality, are described below (e.g., login ID/password).
2.6. – Prerequisites / Software and Client Configuration Compatibility: refers to the conditions related to the subscription and proper functioning of the Service(s). They are described in Appendix 2.
2.7. – Client Support: refers to Daiteo’s point of contact responsible for handling all Client requests such as incident reports, etc. associated with the subscribed Service(s).
2.8. – User: refers to any person authorized by this agreement to access Daiteo’s software solution offered in SaaS mode. Users are referred to as regular users or as Administrators with extended rights, in accordance with Appendix 2.
Article 3 – Entry into Force – Duration
3.1. – This agreement shall enter into force upon the date of signature of the associated purchase order.
3.2. – Unless otherwise stated in the applicable Purchase Order, this agreement is concluded for a period of twelve (12) fixed months. The anniversary date considered shall be the first day of the month following the signature. It includes a trial period of three (3) months, during which either Party may terminate the contract and end the trial period, at any time and without delay.
The contract will be automatically renewed for the same duration unless terminated by either party by registered letter with acknowledgment of receipt, with a minimum notice period of two (2) months before the renewal date.
3.3. – Each party may terminate the contract, in accordance with the provisions of Article 14 below.
Article 4 – Right to Use the Software and Related Content
4.1. – The software shall be used solely for the internal needs of the Client and the authorized Users thereof, within the limit of the number of authorized Users specified in the associated purchase order.
The Client shall ensure that only authorized Users have access to the software.
Any additional license requested by the Client shall be subject to additional remuneration as provided for in Appendix 2, assessed based on the rights granted to the Client.
4.2. – The documentation, data (images, information, logos, etc.) possibly provided by Daiteo in the context of access to the Software and solely during its use, as well as the various graphical user interface screens, are and remain the sole and exclusive property of Daiteo and/or its licensors.
Outside the strict scope of the license provided by this agreement, the Client expressly undertakes not to reproduce, represent, or exploit them in any way without the prior written consent of Daiteo.
Article 5 – Order – Opening of Client Access
5.1. – Upon receipt of the order by Daiteo, the Client receives instructions, as well as Authentication Means allowing access to the Software.
Thus, this receipt will be made by email, with the date of provision thereof being deemed to be the date of delivery of the ordered service.
5.2. – From the delivery of the Authentication Means, Daiteo is no longer responsible for the security of their storage. In the event that the Authentication Means consist of a username/password pair, the Client is encouraged to immediately change the password and replace it with a password complying with basic security rules (presence of letters, numbers, special characters, etc.).
5.3. – Within the framework of using the Services, the Administrator may have the possibility to create new access for regular Users.
These additional User accesses are billed upon activation, according to the current pricing conditions.
5.4. – The Client is solely responsible for distributing regular User accesses and the rights it grants to these Users on the software.
Any access made by a regular User shall be deemed to have been made by the Client.
Users may be employees, contractors, or other external collaborators, but in any case, the Client shall be solely and exclusively responsible vis-à-vis Daiteo for the actions of these Users authorized by it under this agreement, regardless of the type of contractual relationship or non-existent relationship between the Client and these Users.
Article 6 – Services
6.1. – Access to the Software is provided via a URL communicated by Daiteo and may be changed at any time, particularly for security reasons. The new URL will be communicated by Daiteo to the Client fourteen (14) days before the old URL is invalidated.
6.2. – The scope of the Services provided, including usage limits (bandwidth, data processing volume, etc.), is specified in Appendix 2.
The Client acknowledges having knowingly chosen the level of service it wished to subscribe to and is solely responsible for the consequences in terms of performance or adequacy to its needs that this level of service entails.
The Client is encouraged to regularly review the other service levels offered by Daiteo so that it may subscribe to the most suitable offer for its actual consumption.
6.3. – Daiteo undertakes to provide the Services diligently, with care, and in accordance with the rules and best practices in the profession. In particular, it undertakes to ensure the service quality levels described in the appendix (scheduled unavailability in the case of maintenance operations and unscheduled, maximum software unavailability rate, measurement of this rate, access time, conditions for possible backup, etc.).
It also undertakes to inform the Client of any event of which it becomes aware that could compromise the proper execution of this Agreement.
6.4. – Daiteo’s commitments concern only the software provided by Daiteo and which enables the provision of Services to the Client.
Daiteo shall not be held liable for malfunctions whose origin is directly or indirectly related to another information system than its own, and in particular that of the Client.
6.5. – In its constant quest for quality, Daiteo provides a User assistance service, User training, and minor or major corrective maintenance. These interventions are provided under the conditions specified in Appendix 2.
6.6. – In any event, it is the Client’s responsibility to take all appropriate precautions to deal with any malfunction of the Software in the course of its use, particularly by implementing prior data backup and regular result checks.
6.7. – The Client undertakes to use the Services and Software in a manner that does not violate any laws or regulations, not to have the Software or Services process unlawful data, and will indemnify Daiteo against any claims arising from such uses.
The Client will bear any liability, loss, costs, damages, expenses, and attorney fees that may result from such uses.
Article 7 – Security
7.1. – The Client is, in any case, solely responsible for the use, storage, and confidentiality of the Authentication Means entrusted to its personnel, which allow access to the Client.
7.2. – Daiteo reminds the Client that it must implement an appropriate information system security policy, equipped with comprehensive application guidelines, and it is the Client’s responsibility to train its personnel in the best practices in information system security.
7.3. – In the event of a security alert suggesting hacking, fraudulent access, or any breach of Daiteo’s information system, Daiteo may suspend all or part of the accesses, at its discretion, immediately and without notice.
This interruption does not entitle the Client to any compensation. However, Daiteo must communicate the exact causes and details of this security alert to the Client as soon as possible and in any case within twelve (12) hours following the alert.
On this occasion, Daiteo undertakes to provide all relevant information to the Client, particularly enabling it to respond to requests from its own clients, regulators, or state authorities regarding the security alert of which it may have been indirectly victim.
7.4. – In the event of a security alert concerning access to all or part of the Client’s information processed by the Software, Daiteo undertakes to notify the Client in detail within twelve (12) hours following the alert so that the Client can fulfill its contractual and/or legal obligations.
7.5. – Daiteo undertakes to comply with all security requirements concerning the Software and Services as indicated in the appendix.
Article 8 – Protection of Client Data – Personal Data
For all useful purposes, it is specified that this article aims to recall the essential rules related to the protection of Client data, detailed in Appendix 2 and forming an integral part hereof.
8.1. – Daiteo undertakes to respect the commitments provided for in this article and in Appendix 2 concerning the protection of the Client’s personal data, and to ensure that its personnel, permanent or non-permanent, and its potential subcontractors, comply with the terms thereof, notably by imposing on them similar commitments to those set forth below.
8.2. – The Parties undertake to collect and process any personal data in compliance with any applicable regulations governing the processing of such data, notably Law No. 78-17 of January 6, 1978, as amended, known as the “Data Protection Act”.
In accordance with this law, the Client is responsible for the processing carried out under the contract and for the personal data by the Software and/or the Services offered by Daiteo.
Daiteo, on its side, is directly responsible for any actions of its subcontractors that are not in compliance with the state of the art or with regulations in this matter.
8.3. – Daiteo undertakes not to exploit or use, not to make copies, and not to create files of the Client’s data for its own purposes or on behalf of third parties.
Without specific and prior authorization from the Client, Daiteo undertakes never to access the data.
However, Daiteo shall have the right to modify the data if it receives information from a Third Party revealing that the data is in violation of applicable legislation or contrary to public policy and morality.
8.4. – Upon the Client’s request, Daiteo undertakes to specify to the Client at any time the geographic locations for data processing, storage, and transit that will be used to provide the Services to the Client so that it can comply with applicable legal requirements.
8.5. – Likewise, Daiteo undertakes to:
Make its best efforts, on its behalf as well as on behalf of its potential subcontractors, to collaborate and assist the Client, notably by providing all useful information to enable it to comply with legal requirements or regulations concerning the protection of personal data, or by organizing the establishment, if necessary, of access, rectification rights, etc., recognized to the Client’s customers;
Take all necessary measures regarding the protection, security, and confidentiality of data as well as personal data, notably in case of processing, backup, archiving, or transfer to countries outside the European Union framework that are not considered to have “adequate” protection for personal data according to an official decision of the European Commission.
8.6. – If the subcontractor is located in countries outside the European Union that do not have an adequate level of protection, Daiteo undertakes to ensure that the subcontractor adheres notably to all the provisions of this Article and to the contractual clauses for the transfer of Personal Data to subcontractors established in third countries (Directive 95/46/EC of October 24, 1995), by signing a “Specific Contract Relating to the Transfer of Personal Data to a Country outside the European Union and not providing an adequate level of protection,” a model of which will be provided by the Client.
This contract will be signed tripartite between the Client (data controller), Daiteo (data exporter), and the EU subcontractor (data importer).
The transfer of personal data to the subcontractor is strictly prohibited until the signing of the said specific contract.
Article 9 – Intellectual Property
9.1. – Daiteo warrants that it holds all intellectual property rights over the Software and all its components such as user manuals, graphical interface screens, and any additional contents provided to optimize its use (images, data, etc.) necessary for the use license provided in this contract.
9.2. – Daiteo and its potential rights holders retain the intellectual property of the Software and all its components such as user manuals, graphical interface screens, and any additional contents provided to optimize its use (images, data, etc.).
The grant of the right to use the Software and these additional elements provided in this contract does not entail the transfer of any ownership rights.
9.3. – The Client undertakes not to directly or indirectly infringe upon the rights of Daiteo or its potential rights holders. The Client undertakes, with regard to authorized Users and any external person who may access the Software, to take all necessary measures to ensure the secrecy and respect for the intellectual property rights of said Software, its components, and any additional contents provided to optimize its use (images, data, etc.).
The Client notably undertakes to take all measures to ensure that its personnel do not retain any documentation or reproduction of these elements outside the strict scope of their use.
9.4. – The Client will retain full ownership of any intellectual property rights attached to the product sheets that it will have edited through the services provided by Daiteo, and in any case will retain full ownership of the data entered by it, if these are subject to any protection under intellectual property law.
9.5. – In case of an attempt by a third party to contest Daiteo’s rights directed towards the Client, the Client must immediately notify Daiteo and raise any protest against the seizure to assert the rights of the property in question.
Article 10 – Financial Conditions
10.1. – The amount of the fee or “subscription” payable by the Client to the Provider, in exchange for this license to use the Software and the Services it enables to benefit from, is expressed on the associated order form, as well as the terms and deadlines for payment provided. The right to use starts from the payment of the first terms provided following the subscription form implemented.
10.2. – In case of non-payment by the deadline defined on the order form, a lump sum compensation fee for recovery costs in the amount of forty (40) euros will be applied, and any amount due will bear interest from the said due date until full payment, at the interest rate applied by the European Central Bank to its most recent refinancing operation, plus ten (10) percentage points, without prior formalities.
Moreover, in case of non-payment of a single installment, Daiteo reserves the right to suspend the execution of this contract and thus access to the Services, eight (8) days after an unsuccessful formal notice, without prejudice to any damages, interests, and indemnities it may claim.
Within fifteen (15) days following a second unsuccessful formal notice, Daiteo will be entitled to claim the termination of the contract due to the Client’s fault, according to the conditions provided in Article 14 below.
10.3. – The suspension of Services does not result in the cessation of invoicing.
10.4. – Payments received by Daiteo are non-refundable, and no refund or credit will be given for periods of partial use. In case of termination of the contract as provided in Article 14 below, the Client will continue to have access to the Services until the end of the billed period.
10.5. – The amount of the fee is indicated excluding value-added tax or any applicable taxes, which are the responsibility of the Client.
Article 11 – Warranty
11.1. – If the operation of the Software does not allow compliance with the subscribed service levels or the expected quality of service, Daiteo will refund the Client all or part of the monthly subscription fee paid by the Client, the amount of which will correspond to the prorated monthly subscription amount in relation to the number of days of use and the level of impacted use.
11.2. – Daiteo guarantees the Client against any action, claim, or complaint based on the fact that the Client’s use of the Software, under the terms of this contract, infringes in France any license, copyright, trademark, trade secret, or any other proprietary right held by a third party (“Claim”) and assumes any liability, loss, costs, damages, expenses, and attorney fees that may result from such a claim.
11.3. – Daiteo’s obligations under this article are subject to the following cumulative conditions:
Daiteo must be immediately informed in writing by the Client of any claim;
The Client must expressly give the Provider full authority to conduct the defense against any claim and negotiations to obtain a settlement or compromise;
The Client must provide the Provider with any necessary assistance to defend against the claim;
The claim must not have been caused by unauthorized acts under the terms of this contract or by the misconduct of the Client or a third party acting on behalf of the Client.
11.4. – If the Software is subject to a claim, Daiteo may decide, at its expense and at its discretion, to implement one of the following solutions:
Obtain an appropriate license so that the Client can continue to use the Software.
Replace or modify the Software (in whole or in part) that is the subject of the claim so that the Software retains its functionality, no longer infringes the alleged rights, and that Services identical to those previously provided and provided on the order form are provided by Daiteo.
Refund to the Client the amount of the Software fees paid by the Client.
11.5. – The warranties granted to the Client under this article are exclusive of any other legal or contractual warranties, express or implied.
Article 12 – Responsibility
12.1. – The Client is responsible for the suitability of the software for its needs. The Client acknowledges that Daiteo has provided all necessary information to assess the software’s suitability for its needs and agrees to use it in accordance with this contract.
12.2. – Daiteo is not responsible for the Client’s data transmitted within the scope of the Services. It is also not responsible for any use of the Software by the Client that is not compliant.
12.3. – Daiteo shall not be liable to the Client, for any reason whatsoever, for any indirect damages, including but not limited to any loss of data, business, revenue, profit, clientele, or opportunity, related to or arising from the Software, its operation, even if the Client has been advised of the possibility of such loss or damage.
12.4. – If, however, Daiteo were to be financially liable for any reason whatsoever, the damages awarded shall not exceed the amount actually received under this contract.
12.5. – Each Party agrees to inform the other of any event that it becomes aware of and that could compromise the proper execution of this contract.
Article 13 – Confidentiality
13.1. – Each Party undertakes to take all necessary precautions to maintain the confidentiality of the other party’s confidential information (“Confidential Information”), these precautions being at least equivalent to those taken by each of the parties to ensure the confidentiality of its own confidential information. Shall be considered as confidential information at a minimum, regardless of form, medium, or means:
all Client data processed by Daiteo in the context of the Services it offers;
information specifically identified as such by either Party.
13.2. – Not considered as Confidential Information are (i) information held by a Party and which it can prove it has lawfully acquired without use restrictions before receiving it from the other Party, (ii) information that has become public domain, and (iii) those communicated by a third party in good faith without requiring confidentiality commitment towards them.
13.3. – For the application of this clause, each Party is responsible for its personnel or Users, if applicable, as if they were itself. This obligation shall be valid for a period of three (3) years after the termination of the contract and shall survive even after cancellation, termination, or end of the contract.
13.4. – Each Party shall refrain from disclosing, directly or indirectly, to any natural or legal person, the Confidential Information of which it becomes aware in the context of this contract and/or from reproducing and/or using it, either for its own account or for the account of third parties, for purposes other than those envisaged in this contract.
13.5. – Either Party, at any time, upon the written request of the other Party, shall return the Confidential Information or proceed with its definitive and effective deletion as soon as possible.
Article 14 – Termination
14.1. – Daiteo reserves the right to terminate this contract in the following cases, without prejudice to any other damages that Daiteo may claim:
after sending a formal notice to the Client, by registered letter with acknowledgment of receipt, which remains without effect fifteen (15) days after receipt, to comply with the provisions of articles 4 and 5 above;
after sending a formal notice to the Client, by registered letter with acknowledgment of receipt, which remains without effect thirty (30) days after receipt, to pay the fees due under this contract, or to comply with any provision of this contract;
in cases where the Client is in judicial liquidation, judicial recovery, or subject to a similar procedure, subject to the applicable legal provisions. (if the contract is for a fixed term) The Client may terminate this contract ninety (90) days after notifying the Provider, by registered letter with acknowledgment of receipt.
14.2. – The Parties will collaborate to facilitate the recovery of data by the Client. In particular, Daiteo will ensure that the Client can continue to exploit its data, without interruption, directly or with the assistance of another service provider.
14.3. – In case of termination of the contract, regardless of the reason, the Client must immediately cease using this Software.
The Client will lose all rights to access it, and any access or attempted access may be legally and criminally punishable.
In case of termination by the Client, any connection by one of its Users will be considered as subscribing to a new contract subject to billing at the then-current rate.
Article 15 – Assignment of Contract
This contract and its annexes cannot be transferred or assigned, in whole or in part, by the Client without the prior written authorization of Daiteo.
Article 16 – Proof Convention
The computer records of Daiteo related to the connection to the Software and the provision of the Services constitute evidence of the exchanges between the Parties and shall prevail over those from the Client’s information systems.
Article 17 – Insurance
17.1. – Daiteo certifies that it is insured with a financially stable insurance company for all liabilities it may incur under the contract.
17.2. – Daiteo must provide proof to the Client of the policies covering the relevant risks, as well as proof of the regular payment of corresponding premiums. It must also provide said attestation upon the Client’s first request.
17.3. – Daiteo undertakes that the insurance policies are and remain valid for the duration of the Contract, and that nothing is done or omitted that could render these policies ineffective, and that none of the said policies are subject to special or unusual terms or conditions.
Article 18 – General Provisions
18.1. – Entire Agreement
The parties acknowledge that this contract constitutes the entire agreement between them and supersedes any prior offers, provisions, or agreements, whether written or oral.
18.2. – Contractual Order
The contract consists of the following contractual documents, listed in descending order of priority:
this document and its amendments;
its annexes in the following order of precedence:
(Annex 1) Financial Conditions
(Annex 2) General Terms of Service Usage
In case of contradiction between the different documents, the document of higher rank shall prevail for the relevant obligation.
18.3. – Modification of the Contract
No subsequent document or modification of the contract, regardless of its form, shall have effect between the parties unless it takes the form of an amendment duly dated and signed by them.
18.4. – Notification
Any notification under this contract shall be made by registered letter with acknowledgment of receipt, addressed to the parties, at the addresses indicated at the beginning of this contract.
18.5. – Force Majeure
The liability of either party cannot be sought if the performance of the contract is delayed or prevented due to force majeure, the actions of the other party or a third party, or external causes such as labor disputes, intervention by civil or military authorities, natural disasters, fires, water damage, interruption of the telecommunications network or the power grid. In case of force majeure, the affected party must notify the other party in writing and do its utmost to find a solution or attempt to limit its consequences in order to resume its contractual obligations as soon as possible.
18.6. – Waiver
The fact that either party does not exercise any of its rights under this agreement shall not be deemed a waiver of its right to exercise it in the future, and shall not prevent the non-defaulting Party from asserting it in the future, such waiver can only be made by an express statement from the concerned party.
18.7. – Validity
If any provision of this contract is deemed invalid under a valid legal rule or a final judicial decision, it shall be deemed unwritten, without affecting the validity of the other provisions of the contract.
Article 19 – Dispute Resolution
This contract is governed by French law, even if the Client or Daiteo is of foreign nationality and/or the contract is performed in whole or in part abroad.
Any dispute arising from its execution and which cannot be resolved amicably shall be submitted to the exclusive jurisdiction of the courts within the jurisdiction of the Court of Appeal of Lyon, notwithstanding plurality of defendants or third-party proceedings.
APPENDIX
– (Appendix 1) Financial conditions
– (Appendix 2) Special conditions for use of the Services
– (Appendix A) Service Level Agreement
– (Appendix B) Specific Conditions – Technical Support
– (Appendix C) Specific Conditions – Functional Support
Appendix 1 – Financial conditions
Price
The price is understood as a monthly subscription corresponding to both the provision of the Database and the supply of Updates, as defined in the associated purchase order.
Review
■ The subscription price shall be reviewed annually on the contract anniversary date according to changes in the SYNTEC index as against the base index applying on the date of signature hereof.
In the event of the disappearance of one or more indices and in default of agreement on a new index, a replacement index shall be selected by the Presiding Judge of the Commercial Court of LYON, on application by either party.
■ In the event of modification of the essential characteristics of the service subscribed and for one of the commercial offers listed in Appendix 2 (relating to the number of users, editable products or available languages), the price of the subscription shall be revised after discussion with the Client.
In the event of the Service Provider developing significant new functions (eg., a module for media management), these may only be subscribed under an option, after discussion with the Client as to the tariff to be applied.
Procedures for payment and invoicing
The Client shall pay its subscription in monthly instalments, by bank credit transfer or direct debit.
Appendix 2 – Special conditions for use of the Services
GENERAL CONDITIONS
1. SAAS SERVICES AND ASSISTANCE
1.1 Subject to these General Conditions as appended to the subscription Contract, the Company shall provide the Services to the Client in the conditions set out in this Contract, with the Documentation and Level of Service in Appendix A. For the requirements hereof, the Documentation means the description of the Services available on daiteo.io. In the registration process, the Client chooses a user name and password for its account. The Company reserves the right to refuse registration of passwords considered to be inappropriate or to cancel them.
1.2 Where appropriate, and subject to the terms hereof, the Company shall also provide the Client with technical support (“Technical Support”) and operational Support (“Operational Support”) pursuant to the terms of Appendices B and C respectively (together referred to as “Assistance Services”).
2. RESTRICTIONS AND OBLIGATIONS
2.1 The Client must comply with the terms of this Contract.
2.2 The Client shall refrain, directly or indirectly, from: reconstituting the logic, decompiling, disassembling or otherwise attempting to reveal the source code, object code or underlying structure, the ideas, know-how or algorithms used in the Services or any software, documentation or data associated with the Services and/or the Assistance Services (“Software”); modifying, translating or creating derivatives from the Services or any Software (unless the Company the expressly agrees or if it is authorised within the Services); using the Services or any Software for use in shared time, in an office service or by a third party; deleting any ownership references or labels.
2.3 Concerning the use of the Services and/or Software, the Client undertakes to comply with the regulations in force, including for export.
2.4 The Client declares and guarantees that it will use the Services pursuant to the rules in force published by the Company (“Conditions for Use”), which are available on the DAITEO website, and with any laws and regulations in force, including EU regulations nos. 1169/2001, 1223/20095, 1272/2008 and 1907/2006. The Client hereby undertakes to discharge the liability of the Company and protect it in the event of damage, prejudice, liability, indemnity or expense (including court and legal fees) occasioned via any action or claim for an alleged infringement of the Conditions for Use or the regulations referred to above or through the use of the Services by the Client. Although the Company has no obligation of control the use of the Services by the Client, it reserves the right to do so and may prohibit the use of the Services if it considers that this use causes or may cause harm to the matters referred to above.
2.5 The Client must ensure the security of its account, its passwords (both administrative and user passwords) and files and is responsible for the use of its account or equipment, whether it is informed thereof or has consented thereto. The Client is responsible for any person in its organisation it authorises to use the Services (“Users”) and shall ensure that they comply with the terms of this Contract. Furthermore, the Client must prevent any unauthorised access to or use of the Services, and must inform the Company as soon as possible in the event of unauthorised access or use.
2.6 The Client alone is responsible for the accuracy, quality and lawfulness of any data or digital information imported, stored, exported or transmitted by it or on its behalf in using the Services (“Data”) and the means by which it has obtained such Data. The Client has the right to access and use information obtained from a third party and provided to the Client via the Service, subject to the terms of this Contract.
2.7 If a grantee requests the Company to remove Data, or if the Company receives information according to which the Data provided to the Client might infringe applicable law or third-party rights, the Company shall inform the Client thereof, which must delete such Data from its systems as soon as possible. If the Company receives information according to which an application which does not belong to the Company and which is hosted by the Client might infringe applicable law or third-party rights, it shall inform the Client thereof, which must disactivate or modify this application as soon as possible, to remedy any such breach. If the Client fails to do so, the Company may disactivate the Data, the Service and/or the application which does not belong to the Company until any such breach is resolved.
2.8 The Company undertakes not to modify the Data unless expressly requested, unless it receives information from a third party proving that the Data infringes prevailing law, or is contrary to public order or morality.
2.9 The Company shall implement administrative, physical and technical measures to ensure the security, confidentiality and integrity of Client Data, as described in the Documentation. Such measures are intended to prevent access to and the use, modification or communication of Client Data by the personnel of the Company, unless:
for providing the Services and avoiding or solving technical or service problems; or
if the Client permits it in writing.
2.10 For the continuing improvement of the Services, the Company undertakes to maintain depreciated versions of APIs for at least 3 months after the date of depreciation, where appropriate.
3. SUPPLIERS OTHER THAN DAITEO
3.1 Third parties supply additional Data or applications belonging to them. The acquisition of such applications by the Client, and any exchange of Data between the Client and a supplier other than DAITEO, only concerns the Client and this other supplier. The Company gives no guarantee for applications or Data which do not belong to DAITEO, whether or not described as “certified”, unless otherwise expressly provided in a Subscription.
3.2 If the Client elects to use an application which does not belong to DAITEO with a Service, it shall authorise DAITEO to enable such application and its supplier to access the Client Data for interoperability of such application with the Service. The Company is not responsible for any communication, modification or deletion of Client Data which may occur because of the access to such data by the said application or its supplier.
3.3 The Services may contain functions enabling interoperability with applications not belonging to DAITEO. For using such functions, the Client may be required to obtain access to such applications from the suppliers concerned and to give DAITEO access to its accounts concerning applications not belonging to DAITEO. The Company gives no guarantee as to the availability of such functions of the Services and may stop offering them without the Client having any right to reimbursement, a credit note or any other compensation, if, for example, the supplier of an application not belonging to DAITEO no longer allows the application to inter-operate with the corresponding functions of the Service in a manner acceptable to the Company.
4. CONFIDENTIALITY; RIGHTS OF OWNERSHIP
4.1 Each party (the “Receiving Party”) acknowledges that the other party (the “Issuing Party”) has disclosed or may disclose, orally or in writing, commercial, technical or financial information concerning the activity of the Issuing Party, which is designated as confidential or reasonably considered as confidential on account of its nature or the circumstances of its disclosure (“Confidential information”) by the Issuing Party. The Company’s Confidential information comprises information, not accessible to the public, associated with the functions and operation of the Service. The Client’s Confidential information comprises data, not accessible to the public, provided by the Client to the Company for provision of the Services.
The Receiving Party undertakes:
to take reasonable precautions to protect such Confidential information; and
not to use such Confidential information or disclose it to any third party (unless for provision of the Services or authorisation contrary hereto).
The Issuing Party agrees that the above, concerning any information, shall not apply after five (5) years following disclosure of the information, nor to any information which the Receiving Party may prove:
to be in or entering into the public domain;
to have been in its possession or within its knowledge before its communication by the Issuing Party;
to have been lawfully disclosed by a third party without restriction;
to have been developed independently, without recourse to Confidential information from the Issuing Party; or
that its communication is required by law.
4.2 The Receiving Party may disclose Confidential information from the Issuing Party if the law so requires, provided it informs the Issuing Party of this obligation before disclosure (if permissible in law) and provides the Issuing Party, at its own expense, with reasonable assistance if it wishes to contest such disclosure. If the Receiving Party is obliged by law to disclose Confidential information from the Issuing Party in relation to civil proceedings to which the Issuing Party is a party, and that the Issuing Party does not oppose such disclosure, the latter shall reimburse the Receiving Party any expense that it has reasonably incurred in obtaining such Confidential information and ensure secure access thereto.
4.3 The Client holds all rights over Client Data. The Company holds all rights over:
the Services (including Assistance Services) and the Software, and any improvements or modifications thereto;
any software, applications, inventions or other technologies developed in relation to the Assistance Services; and
all the elements of intellectual property associated with the above.
4.4 Notwithstanding any contrary provision, the Company is entitled to collect and analyse the data and other information relating to the provision, use and operation of various aspects of the Services (including Assistance Services) and for the systems and technologies associated therewith (including information concerning Client Data and data derived therefrom). The Company shall be free (during and at the end of the period of this Contract) to:
use such information and data to improve the Services and develop, diagnose and correct the Services and the other Company offers; and
communicate such data in aggregated or any other unattributed form in the course of its business. No other right is granted than as provided herein.
4.5 The Client grants the Company a licence which is valid worldwide, perpetual, irrevocable and gratuitous, for using and incorporating into the services of the Company any suggestion, request for improvement, recommendation, correction or other commentary sent by the Client or Users concerning the operation of the Services of the Company, including the Service.
5. PAYMENT
5.1 For Contracts concluded for consideration, the Client undertakes to pay the Company the price then in force referred to in the Subscription for the Services and Assistance Services, pursuant to the terms of such Contracts (“Price”). If the use of the Services by the Client exceeds the extent stated in the Subscription or otherwise required, the payment of an additional charge (pursuant to the stipulations of this Contract), shall be invoiced for such use to the Client, which undertakes to pay the additional charge according to the procedures provided herein. The Company reserves the right to alter the applicable Price or charge and to review them at the end of the Initial Period of the Services or of the Renewal Period then in force, subject to thirty (30) days’ notice to the Client (which may be sent by e-mail). If it considers that it has been incorrectly invoiced by the Company, the Client shall contact it within sixty (60) days after the date-limit stated on the first invoicing statement in which the error or problem has appeared, to receive a rectifying invoice or credit note. Such requests must be sent to the Company’s support team.
5.2 Invoices issued by the Company must be paid in full on the due date. Eight (8) days after formal notice to pay has remained unsatisfied, without prejudice to any damages, interest and compensation it may claim, the Company reserves the right to suspend access to the Service.
Fifteen (15) days after a second formal notice to pay has remained unsatisfied, the Service Provider shall be entitled to claim termination of the contract for default by the Client, according to the terms of the Contract. Unpaid sums shall attract interest at the rate applied by the European Central Bank to its most recent refinancing operation increased by 10 points on any outstanding sum, plus forty Euros (40 EUR) for each recovery of unpaid invoices.
6. TERM AND TERMINATION
6.1 Save for premature termination in the conditions set out below, this Contract is concluded on its Date of Entry into force and expires at the end of the Initial Period of the Services and shall be tacitly renewed by Renewal Periods, as provided in the Contract of subscription, where appropriate (together referred to as the “Term of the Contract”), unless one party informs the other, by notification, of its intention not to renew the Contract at the end of the current Period.
6.2 Apart from the specific conditions in the Contract giving a right to termination, if one of the parties seriously breaches any stipulation hereof, the other party may terminate this Contract subject to notice of two (2) months (or without notice in the event of default in payment), and the Client shall pay all sums due in relation to the Services until the last day (included) of provision of the Services.
6.3 In the event of termination, the Company undertakes to maintain provision of the Service to the Client until the end of the current Period. At the end of this period, the Company shall disactivate the terminated Services. All the clauses of this Contract which, by their nature, must remain in force after the termination hereof shall retain their full effect at the end of the termination, including any right to retention of payment, confidentiality obligations, exclusions from guarantee and limitations of liability.
7. GUARANTEE AND EXCLUSION OF LIABILITY
The Company manages the Services according to procedures which restrict errors and interruptions of the Services, by applying current industrial standards, and undertakes to execute the Implementation Services, Technical and Operational Support with professionalism and diligence. The Services effected by the Company or third-party contractors, or for any other reason beyond the reasonable control of the Company (including the Implementation Services, Technical and Operational Support) may become temporarily unavailable because of scheduled maintenance, or unscheduled maintenance in in an emergency. However, the Company undertakes to inform the Client in advance, in writing or by e-mail, of any scheduled interruption of the Services. HOWEVER, THE COMPANY DOES NOT GUARANTEE THAT THE SERVICES SHALL BE UNINTERRUPTED OR EXEMPT FROM ERROR, AND PROVIDES NO GUARANTEE OF THE RESULTS WHICH MAY BE OBTAINED IN USING THE SERVICES. The only guarantees provided by the Company are expressly stated in the Contract of subscription and its appendices.
8. PROTECTION OBLIGATIONS
The Company undertakes to indemnify the Client against any liability to any third party resulting from a presumed breach of intellectual property rights, provided that it is informed as soon as possible, by notification, of any threat, claim or legal action pertaining thereto, and has reasonable assistance and is enabled to assume sole control of the defence and of any compromise settlement. The Company shall have no liability in the event of any compromise settlement to which it has not consented in writing.
The above obligations do not apply to parts or components of the Services or Assistance Services:
which are not provided by the Company;
which are realised, in whole or in part, pursuant to the specifications of the Client;
which have been modified after their provision by the Company;
which are associated with other products, processes or elements when the presumed breach affects such association;
for which the Client continues an allegedly counterproductive activity after having been warned of its existence or after having been informed of modifications which would have enabled it to avoid the alleged breach; or
which the Client does not use in strict conformity with the Contract.
If, in the event of an infringement action, the Services or the Assistance Services are considered to be an infringement by a competent court, or if the Company considers that the said services are an infringement, the Company may, at its entire discretion and at its own expense:
replace or modify the service concerned to remove the infringement, on condition that such modification or replacement includes substantially similar characteristics or functions;
obtain authorisation for the Client to continue to use the service concerned; or
if no such solution is commercially feasible, terminate the Contract and the rights of the Client hereunder and reimburse the Client any sum paid in advance and not used for the service concerned.
9. LIMITATION OF LIABILITY
The company shall be liable for direct damage caused by it to the client in execution of the Services.
Such direct damage (sic) shall not, overall, exceed the sums paid by the client to the company for the services concerned.
Pursuant to this contract during the twelve (12) months preceding the event giving rise to the damage, whether or not the company had been warned of the possibility of such damage (sic).
Notwithstanding any contrary provision, except in the event of personal injury, the company and its suppliers (including any suppliers of equipment and technologies), directors, subsidiaries, representatives, contractors and employees, shall not be liable in relation to any object of this contract or of any associated contractual document:
in the event of erroneous use, interruption of use of the service, or expense for purchasing [replacement] goods, services or technologies;
in the event of loss of business;
in the event of special or indirect, collateral, punitive or incidental damage;
in the event of force majeure.
10. PERSONAL DATA
Processing of personal data by the Company
In the execution of this Contract, the Company shall collect and process personal data (as defined in article 4.1 of the European “GDPR” regulation no. 2016/679) concerning the Client, its employees and/or directors, to enable it to manage the contractual relationship (“Personal data”). In this context, the Company processes Personal data, in compliance with the applicable regulations, for managing clients (including the contract, orders, delivery, invoicing, accounting and monitoring the contractual relationship), and, more generally, managing operations enabling it to communicate with the Client.
The processing applied in this context is based on the legitimate interests of the Company, insofar as this processing is required for the proper execution of the contractual relationship and in compliance with its legal obligations. The Personal data and the whole file associated with the Client shall be retained throughout the period of the contractual relationship and during the applicable prescription period.
Pursuant to applicable regulations, the Client and/or its employees and/or directors have a right of access, rectification and removal of Personal data concerning them, a right of limitation of processing and a right to oppose the processing of Data concerning them. The Client and/or its employees are also entitled to give the Company special instructions concerning their Personal data after their death. To exercise such rights, the Client may send a request by letter to DAITEO, 160 rue Vendôme, 69003 Lyon. Finally, the Client and/or its employees may make a claim to the authority for protection of personal data.
Processing by the Company on behalf of the Client
Under and for the term of this Contract, the Company may process (collect, consult, host, maintain) personal data on behalf of the Client, including data relating to its employees, such as their identities, positions, telephone numbers, e-mail addresses, business addresses, connection data and IP addresses (“Subcontracted Personal Data”), to be able to provide the Client with the Services required. The Company and the Client undertake to collect, process, use and transfer Subcontracted Personal Data in compliance with the applicable regulations, including Regulation 2016/679 on the protection of personal data, and pursuant to the provisions of this Contract. The Client and the Company agree that the Client is responsible for the processing of Subcontracted Personal Data and that the Company is a subcontractor.
Under this contract and because of the nature of the processing, the Company undertakes:
only to process Subcontracted Personal Data for execution of the Services and pursuant to the written instructions of the Client, unless otherwise obliged by the applicable regulations (in which case, the Company shall inform the Client thereof in advance);
to ensure that the persons authorised to access and process Subcontracted Personal Data comply with its confidentiality;
to take any security measures required by the applicable regulations to ensure that Subcontracted Personal Data is not deformed, damaged, destroyed, lost or communicated to unauthorised persons, whether accidentally or unlawfully;
to inform the Client of any infringement of the Subcontracted Personal Data as soon as possible after discovering it and assist the Client to comply with its obligation to inform the competent authorities and the persons concerned therewith;
to keep a precise list of subcontractors used to effect the Services and to notify the Client of any anticipated change, including the addition or replacement of any subcontractor, before making such change, so that the Client may oppose such new subcontractors and that the subcontract may only be used without opposition by the Client within one (1) month following notification of the change by the Company;
to assist the Client, as far as possible, to comply with its obligation to respond to requests from the persons concerned to exercise such rights;
not to transfer any Subcontracted Personal Data out of the European Union, unless with the prior written consent of the Client or pursuant to specific legal provisions of the European Union or a Member State, and take adequate measures in respect of such transfers;
at the Client’s option, to delete all the Subcontracted Personal Data or return it to the Client on request or at the latest at the end of the contract, and destroy any existing copies, unless otherwise required by law;
to enable auditing of the processing of Subcontracted Personal Data by the Client or another auditor instructed thereby and to participate therein;
taking account of information provided, to collaborate with the Client by (i) assisting it to assess the impact of such data on private life and to consult the authority for data protection; (ii) informing it when an instruction of the latter infringes the applicable regulations; and (iii) providing it with the information required to show its compliance with the regulations applicable to personal data.
APPENDIX A – Service Level Agreement (SLA)
Definition
For the purposes herein, “business hours” refers to the period from Monday to Friday, excluding public holidays in France, from 9:00 a.m. to 6:00 p.m.
Uptime is assessed once a month and does not account for downtime resulting from:
Service Interruptions or termination thereof;
factors beyond our reasonable control, including any force majeure event, difficulties accessing the Internet, or issues occurring beyond the Society’s network termination point;
any action or omission by the Client or any third party;
equipment, software, or other technology of the Client or any third party (other than equipment owned by third parties under the direct control of the Company, including subcontractors);
any scheduled maintenance or maintenance requested by the Client;
any downtime during Implementation Services.
Availability Commitment
The Company commits to making reasonable commercial efforts to make the Services available:
95% of uptime during business hours for user interfaces and SFTP exchanges;
95% of uptime 24/7 for APIs, if applicable.
Platform Backup and Security
Daiteo commits to performing backup copies of Data according to the following frequencies: once a day for the last thirty (30) days.
The security measures implemented by the hosting provider are available at the following address: https://corporate.ovhcloud.com/fr/trusted-cloud/security-certifications/.
APPENDIX B – Special conditions – Technical support
Definition
The Company undertakes to provide Support in accordance with the conditions set forth herein based on the support level to which the Client has subscribed. This Support does not apply to Implementation Services.
Response from support and resolution of Errors
Procedures for responding to Errors by Daiteo: For each Error reported by the Client in accordance with these procedures, Daiteo must:
(i) Make its best efforts to confirm receipt of the reported Error within the specified response time below.
(ii) Make its best efforts to respond to the Error within the specified timeframe below.
(iii) Analyze the Error and, if necessary, verify the existence of the problem(s) causing the Error, which may involve requesting additional information from the Client.
(iv) Make its best efforts to resolve the Error in accordance with the specified response times.
Severity levels and response times: The Client will first classify Errors in order of priority according to the following severity level criteria, understanding that Daiteo reserves the right to reclassify this severity level:
The estimated response time is calculated from the moment an Incident ticket is opened in the Company’s systems until the Company acknowledges receipt of the Client’s issue and informs them that the problem is being addressed.
Support Hours
Support is available from Monday to Friday, excluding holidays in France, from 09:00 to 18:00.
Business Continuity Plan
The Editor will make its best efforts to provide the client with a DRP defined as follows:
Recovery Time Objective (Maximum Acceptable Interruption Duration): 1 Day & 4 hours
Recovery Point Objectives (Maximum Acceptable Data Loss Duration): 24 hours
APPENDIX C – Special Conditions – Functional Support
Functional Support is provided on the basis of tickets submitted to the Company. At the Client’s request, the Company may provide a pricing proposal.
Functional Support can include :
The installation of a connector with another information system software package is invoiced as an additional service at a daily rate of €700 excluding VAT.