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1.1 BRANDEPLOY (the “Service Provider”) holds a licence to operate the Brandeploy software package (the “Software”) with the ability to market this program remotely in SaaS mode (i.e. via a subscription including services subscribed to by the subscriber) to customers of its choice (hereinafter the Services).
1.2 The main features of the Software and the Services subscribed to by the Customer are described in the purchase order.
1.3 Through this subscription agreement (the “Agreement”), the Service Provider grants the Customer, who accepts, on a personal, nonexclusive, non-transferable and non-assignable basis, the right to access and use the subscribed Services.
The right to use refers to the right to represent and implement the Services in accordance with their intended purpose, in SaaS mode via a connection to an electronic communications network. The Customer shall strictly refrain from any other use of the Software, in particular, but not limited to, any adaptation, modification, translation, arrangement, distribution or decompilation.
The Services must be used:
– for the number of users specified in the purchase order
– for the operation of the Service on the basis of the technical and functional prerequisites and descriptions included in the purchase order.
1.4 Under the Agreement, the Service Provider shall not provide any other third-party material elements or third-party consumables than those specifically listed therein. If the use of the Service includes the need for third-party material elements, third-party consumables or even additional services, these elements shall be invoiced separately at the prices in force on the date of supply of said elements, provided that a quote has been accepted in advance by the Customer.
1.5 The Service Provider is expressly authorised to use subcontracting hereunder for the provision of all or part of the Services (setup, data recovery, hosting, etc.) and remains responsible for the performance of the contractual commitments by itself and/or its subcontractors.
1.6 The Service Provider may freely assign all of its rights and obligations arising from this Agreement to third parties. This assignment may be made to any person or company, in the form of a sale, contribution or otherwise.
1.7 The signing of this subscription Agreement implies full and complete acceptance of these provisions and the technical and functional prerequisites and descriptions. It shall prevail over any of the Customer’s terms and conditions of purchase.
2.1 Customer: refers to the legal entity signing the purchase order and its Users.
2.2 Data: refers, in this Agreement, to data of any kind (information, structured or unstructured data, etc.) which belongs to the Customer and which it makes accessible to the Service Provider in the sole context of the processing operations carried out by the Software. This Data is and shall remain the Customer’s property.
2.3 Means of Authentication: refers to each User’s specific process allowing him/her secure personal access to the Service. It features a unique “connection ID/password” pair per User.
2.4 Prerequisites / compatibility of software and Customer configuration: refers to the conditions related to the subscription and proper functioning of the Service(s). They are described in the purchase order.
2.5 User: refers to any person authorised under this Agreement to access the Service Provider’s software solution offered in SaaS mode. Users are designated as single users or as Users with Administrator status with more extensive rights.
3. ENTRY INTO FORCE – TERM
3.1 This Agreement shall take effect on the date it is signed by both Parties. It is concluded for the term mentioned in the purchase order.
3.2 The Agreement shall be automatically renewed, unless it is terminated by either Party by registered letter with acknowledgement of receipt, with a minimum notice period of TWO (2) months prior to the renewal date.
3.3 If agreed, the Customer may however terminate the Agreement early during the trial period, in accordance with the terms and conditions specified in Article 14 below.
3.4 Finally, each of the Parties may terminate the Agreement in accordance with the provisions of Article 15 below.
4.1 The Software shall only be used for the internal requirements of the Customer and the Customer’s authorised Users, limited to the number of authorised Users. These users shall include internal employees, external service providers, franchisees, customers and partners, among others, all of whom shall use it for business reasons.
4.2 The documentation and data (images, information, logos, etc.) that may be provided by the Service Provider in connection with access to the Software and on the occasion of its sole use, as well as the BRANDEPLOY brand and the various graphical user interface screens, are and shall remain the sole and exclusive property of the Service Provider and/or its assigns.
4.3 Outside the strict scope of the licence provided by this Agreement, the Customer is expressly prohibited from reproducing, representing or using them without the Service Provider’s prior written consent.
5.1 After the flat-rate payment has been made, the Customer shall receive instructions and the Means of Authentication allowing it to access the Services by e-mail. The date of supply of these Services shall be deemed to be the delivery date of the service ordered.
5.2 As of the delivery of the Means of Authentication, the Service Provider is no longer responsible for their secure storage. The Customer is asked to change the passwords immediately by following the appropriate instructions on the website.
5.3 The Customer is solely responsible for the distribution of Single User access and the rights it grants to such Users, limited to the number of authorised Users. It shall ensure that only authorised Users have access to the software. If the Customer wishes to have additional licences, it shall request them from the Service Provider, who shall send a quote.
5.4 Any access carried out by a User shall be deemed to have been carried out by the Customer. In particular, any access by an Administrator or a Single User to activation requests for new services or accounts shall be deemed to be issued by the Customer and shall be automatically charged to the Customer in accordance with the pricing conditions in force.
6.1 Access to the Software takes place via a URL provided by the Service Provider which may be changed at any time, particularly for security reasons.
The Service Provider shall provide the Customer with the new URL fourteen (14) days before the old URL is invalidated.
6.2 The Services provided are listed in the purchase order. The Customer acknowledges that it has chosen the level of service it wished to subscribe to in full knowledge of the facts and is solely responsible for the consequences in terms of performance or suitability to its needs which this level of service entails.
6.3 If the Customer has subscribed to a training option, the Parties shall jointly agree on the date this service is performed.
6.4 The Service Provider undertakes to provide the Services diligently, carefully and in accordance with the rules and best practices used in the profession. The Service Provider’s commitments only relate to the Software provided by the Service Provider and which allows the Services to be made available to the Customer.
6.5 The Service Provider hosts the Services and Data with a third-party outsourcer, at a remote server centre located in Europe, under its responsibility, for a maximum volume determined in the purchase order. The Service Provider may freely change the hosting company.
The Customer retains all of its property rights, including intellectual property rights, over such Data.
If the disk space for hosting the Data needs to be increased, the Customer agrees that the Service Provider shall allocate it the additional disk space required, as soon as it becomes aware of said need, and notify it at the same time of the impact on the price.
When the Customer imports and stores Data in the Service, it grants the Service Provider (and its subcontractors) a worldwide licence to host, store and reproduce such Data solely for the purpose of providing the Service. This authorisation shall continue for the entire subscription period.
6.6 The Service Provider shall make daily incremental and weekly full backups. Daily backups are stored in Europe outside the hosting company’s site for 60 days. If an incident occurs between two daily backups, the Service Provider will be able to recover the Data. The Customer agrees in advance that any reconstruction of the Data will cause a slowdown in the use of the Service.
6.7 The Services are accessible 24 hours a day. However, the Service Provider may interrupt the Services to carry out the corrective and evolutionary maintenance of the Software Package. It shall carry out maintenance operations as far as possible between 6 pm and 7 am, French time, and shall inform the Customer of any scheduled operations outside these hours.
6.8 The Service Provider provides Users with a remote support service. The procedures for accessing the support service are set out in the purchase order.
6.9 The Service Provider shall not be liable for interruptions of Services or damages related to:
– a case of force majeure or a decision by the authorities
– abnormal or fraudulent use by the Customer or third parties
– an interruption in the supply of electricity or transmissions due to operators
– a malfunction of the hardware or software hosted by the Customer, and more generally malfunctions related, directly or indirectly, to an information system other than its own
– improper use of the Services by the Customer or the Customer’s internet access problems
– an intrusion or fraudulent maintenance by a third party in the system, or the unlawful extraction of data, despite the implementation of the usual means of security in relation to current technological data, the Service Provider only being subject to a best-efforts obligation with regard to the usual security techniques
– the nature and content of the information and data created and/or communicated by the Customer, or due to data, information, results or analyses from a third party and transmitted through the use of the Software
– a delay in the delivery of information and data when the Service Provider is not the cause of this delay
– the functioning of the internet network or telecommunications networks.
6.10 In any event, it is the Customer’s responsibility to take all appropriate precautions to deal with any malfunction of the Software in connection with its use, in particular by setting up a prior backup of the Data processed and regular monitoring of results.
6.11 The Customer agrees to use the Services and the Software in a way that does not violate any law or regulation and to refrain from having illegal data processed by the Software or Services. It shall hold the Service Provider harmless against any remedy for such acts. The Customer shall therefore bear all liability, loss, costs, damages and legal representation fees which may result from such use.
7. SECURITY
7.1 The Service Provider shall ensure the security of the Service by implementing the usual means of security in relation to current technological data. In particular, the Customer is informed and expressly agrees that, in accordance with the law, the Service includes technical devices (cookies or other technologies) which, during an Internet connection, allow the Customer via a web service, either automatically or, where applicable, at the initiative of the Service Provider, to send the Provider information regarding the Customer’s identification (IP address, authentication token, etc.). The cookies’ sole purpose is to enable or facilitate electronic communication and they are strictly necessary for the provision of the Service. The information obtained by the Service Provider through these technical devices may also be used by the Service Provider in combating counterfeiting and to identify and prevent any unlawful or non-compliant use of the Service.
7.2 In this respect, the Service Provider reminds the Customer that it must implement an appropriate information system security policy, with comprehensive application guidelines, and that it is responsible for training its personnel in best practices in terms of information system security.
7.3 In the event of a security alert that may lead to hacking, fraudulent access or any breach of the Service Provider’s information system, the Service Provider may suspend all or part of the access, at its discretion, immediately and without prior notice. Such interruption does not entitle the Customer to any compensation.
7.4 In the event of abnormally high traffic, the Service Provider shall inform the Customer as soon as possible and shall take all appropriate measures to avoid saturating the hosting centre servers.
7.5 The Service Provider may also remove any litigious content, if it receives an instruction in this respect from a judicial authority. The same shall apply in the event of non-compliance with the provisions of the French law of 21 June 2004 on confidence in the digital economy (“LCEN”).
8.1 The Service Provider undertakes not to exploit or use the Customer’s data and to refrain from making copies and creating files of the Customer’s data for its own purposes or on behalf of third parties.
8.2 The Parties undertake to collect and process any personal data in accordance with any regulations in force applicable to the processing of this data, and in particular Law No. 78-17 of 6 January 1978 as amended, known as the French Data Protection Act.
8.3 Under this law, the Customer is responsible for the processing carried out under the Agreement of personal data by the Software and/or the Services offered by the Provider.
9.1 The Service Provider warrants that it holds all the intellectual property rights over the Software and all its components such as user manuals, graphical interface screens and additional content that may be provided to optimise the use thereof (images, data, etc.) necessary for the user licence provided for in this Agreement.
9.2 The granting of the right to use the Software and these additional elements under this Agreement does not transfer any intellectual property rights over the Software, the Service or any of their components.
9.3 The Customer undertakes not to directly or indirectly infringe the rights of the Service Provider or any of its assigns. The Customer undertakes to take all necessary measures with regard to authorised Users and any outside person who has access to the Software, to ensure the secrecy and respect of the right of ownership over said Software, its components and any additional content provided to optimise its use (images, data, etc.).
9.4 In particular, the Customer undertakes to take all measures to ensure that its personnel do not retain any documentation or reproduction of these elements outside the strict framework of its use.
9.5 In the event of an attempt to dispute the Service Provider’s rights by a third party directed towards the Customer, the Customer must immediately notify the Service Provider and protest against the seizure in order to make known the property rights in question.
10.1 The price of the Agreement is broken down into a flat-rate, nonrefundable part payable upon signature and an annual or monthly fee or “subscription”. The financial terms and conditions and the payment terms and deadlines are set out in the purchase order.
10.2 The right of use shall run from the date on which the Means of Authentication are sent.
10.3 In the event of non-payment by the due date, a flat-rate compensation of forty (40) euros for recovery costs shall be applied and any sum due shall bear interest from 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.
10.4 In addition, in the event of non-payment of a single instalment, the Service Provider reserves the right to suspend the performance of this Agreement and therefore access to the Services, eight (8) days after formal notice remains unheeded without prejudice to any damages, interest and indemnities that it may claim. The suspension of the Services shall not result in the discontinuation of invoicing.
10.5 The Service Provider may also automatically terminate the Agreement through the Customer’s fault, in accordance with the conditions set out below.
10.6 Payments received by the Service Provider are not repayable and no refund or credit shall be granted for periods of partial use.
10.7 If the Agreement is terminated as provided for in Article 14 below, the Customer shall continue to have access to the Services until the end of the period paid for.
10.8 The amount of the fee is stated excluding value added tax or any applicable taxes, which shall be borne by the Customer.
11.1 The Service Provider shall indemnify the Customer against any proceedings, claims or complaints based on the fact that the Customer’s use of the Software under this Agreement infringes in France any licence, copyright, trademark, trade secret or any other property right owned by a third party (“Claim”) and shall bear all liability, loss, costs, damages and legal representation fees which may result from such a claim.
11.2 The Service Provider’s obligations under this article are subject to the following cumulative conditions:
– the Service Provider must be informed of any claim immediately in writing by the Customer
– the Customer must specifically give the Service Provider full authority to conduct the defence against any claim and negotiations to obtain a settlement or compromise
– the Customer must provide the Service Provider with all necessary assistance to defend itself against the claim
– the claim must not have been prompted by acts that are not authorised under this Agreement or by the improper conduct of the Customer or a third party acting on behalf of the Customer.
11.3 The guarantees granted to the Customer under this Agreement are exclusive of any other legal or contractual guarantee, either express or implied.
12.1 The Customer acknowledges that data circulating on the Internet are not protected against possible misappropriation and therefore if the Customer communicates passwords, confidential codes or generally any sensitive information, it does so at its own risk and peril.
12.2 The Customer acknowledges that it has received from the Service Provider all necessary information enabling it to assess the suitability of the Software for its needs and undertakes to use it in accordance with this Agreement.
12.3 The Service Provider is not responsible for Customer Data transmitted in connection with the Services. Nor is it responsible for any non-compliant use of the Software by the Customer. The Service is therefore used under the Customer’s sole direction, control and liability. The Parties hereby agree that the Service Provider is subject to a best-efforts obligation. Consequently, the Service Provider may not be held civilly liable to the Customer or third parties, due to an express or tacit obligation, for any damage arising from the use of the Service, and in particular as a result of inaccurate or incomplete information, an indexing error, a delay or a lack of content or updates.
12.4 Notwithstanding the foregoing, the Service Provider is bound by an obligation to achieve a specific result with regard to the retention and recovery of the Data.
12.5 THE SERVICE PROVIDER SHALL UNDER NO CIRCUMSTANCES BE LIABLE TO THE CUSTOMER, FOR ANY REASON WHATSOEVER, FOR ANY INDIRECT DAMAGE
WHATSOEVER, AND IN PARTICULAR FOR ANY LOSS OF DATA, BUSINESS LOSS, LOSS OF TURNOVER OR PROFIT, LOSS OF CUSTOMERS OR LOSS OF AN OPPORTUNITY IN CONNECTION WITH OR ARISING FROM THE SOFTWARE, ITS FUNCTIONING OR ITS MALFUNCTION, EVEN IF THE CUSTOMER OR THE SERVICE PROVIDER HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
12.6 IF, HOWEVER, A MONETARY AWARD IS IMPOSED ON THE SERVICE PROVIDER
FOR ANY REASON WHATSOEVER, THE AWARD OF DAMAGES MAY NOT EXCEED THE AMOUNT ACTUALLY RECEIVED UNDER THIS AGREEMENT.
12.7 This clause reflects the balance sought by the Parties and the sharing of risks accepted on both sides in compliance with Article 1231-5, paragraph 1, of the French Civil Code.
Each of the Parties undertakes to keep confidential all documents, information and data, regardless of the nature and purpose thereof, of which it has become aware in the context of the performance hereof, including this Agreement and the associated pricing conditions.
14.1 The Parties may agree in the purchase order on a right of withdrawal granted to the Customer to enable it to evaluate the Software in an operational state.
14.2 In such a case, the Customer may lawfully renounce the performance hereof by declaring its intention to do so to the Service Provider.
14.3 The withdrawal may take place at any time during the trial period.
14.4 If this option is exercised, the Service Provider shall retain the flat-rate payment paid upon signature hereof, as well as the monthly licence fees for any month started. This compensation for the right has not been fixed in consideration of the duration, so that its amount cannot be revised, even if it is exercised shortly after the conclusion hereof.
14.5 To be validly exercised, this right of withdrawal must be brought to the Service Provider’s attention by registered letter with acknowledgement of receipt or electronically with acknowledgement of receipt or by bailiff’s notice before the end of the trial period. Any other form cannot be accepted.
14.6 Upon expiry of the trial period, the Customer shall no longer be able to withdraw.
15.1 The Service Provider reserves the right to terminate this Agreement automatically, without prior intervention by the courts, in the following cases, without prejudice to any other damages that the Service Provider may request:
– after formal notice to comply with the provisions of Articles 1, 4 or 5 above, sent to the Customer by registered letter with acknowledgement of receipt, has remained without effect fifteen (15) days after receipt
– after formal notice to pay the fees due hereunder or comply with any of the provisions of this Agreement, sent by registered letter with acknowledgement of receipt, has remained without effect thirty (30) days after receipt
– in cases where the Customer is in court-ordered liquidation, receivership or similar proceedings, subject to the legal provisions in force.
15.2 The Customer reserves the right to terminate this Agreement automatically, without prior intervention by the courts, in the following cases, without prejudice to any other damages it may request:
– after formal notice to comply with any of the provisions of this Agreement, sent by registered letter with acknowledgement of receipt, has remained without effect thirty (30) days after receipt
– in cases where the Service Provider is in court-ordered liquidation, receivership or similar proceedings, subject to the legal provisions in force.
15.3 If the Agreement is terminated for any reason whatsoever, the Customer shall immediately cease using this Software.
It will lose any right to access it, any access or attempted access able to be legally and criminally sanctioned.
15.4 The Parties shall work together to facilitate the recovery of data by the Customer, including the files generated in the tool with the listed titles and information. The cost of recovering Customer Data shall be defined by the Service Provider and may not exceed 10% of the annual licence cost.
This Agreement and its appendices may not be transferred or assigned, in whole or in part, by the Customer without the Service Provider’s prior written consent.
The Service Provider’s computer records on the connection to the Software and the provision of the Services constitute evidence of the exchanges between the Parties and shall prevail over those derived from the Customer’s information systems.
The Service Provider certifies that it is insured with a reputable insurance company for all liabilities it may incur under the Agreement.
19.1 The Parties acknowledge that this Agreement constitutes the entire agreement between them and replaces any previous offer, provision or agreement, written or verbal.
19.2 In the event of contradiction, this Agreement shall prevail over the purchase order.
19.3 No subsequent document or modification of the Agreement in any form whatsoever shall be effective between the Parties without taking the form of an amendment duly dated and signed by them.
19.4 The fact that either Party does not exercise any of its rights hereunder shall not constitute a waiver on its part of its exercise and may not prevent the non-defaulting Party from availing itself thereof in the future, such a waiver only able to proceed by an express statement by the Party concerned.
19.5 If any one of the provisions of this Agreement proves to be null and void with regard to a rule of law in force or a judicial decision which has become final, it shall then be deemed unwritten, without, however, causing the Agreement to become null and void or altering the validity of its other provisions.
19.6 If the Parties have signed this Agreement in electronic format using
a digital tablet or by entering an SMS TSO, they acknowledge, in accordance with the provisions of the new Article 1174 of the French Civil Code:
– that this means shall be admissible for proving the signature and content of this Agreement and for certifying the signature of the respective signatories before the competent Courts, and
– that this electronically signed Agreement constitutes the original thereof, that it has the same probative value as a document written on paper and has the same legal effects and consequently the Parties undertake not to challenge the admissibility, enforceability or probative force of the elements of the signed electronic document, on the basis of their electronic nature.
If the Parties have signed a paper version of this Agreement by hand, it shall have been signed in two original copies and each Party shall retain an original copy.
19.7 Translation: If a translation is made, the French version shall prevail.
20.1 This Agreement is governed by French law, even though the Customer or the Service Provider may be a foreign national and/or the Agreement may be performed in whole or in part abroad.
20.2 Any dispute arising out of its performance and which cannot be amicably resolved shall be subject to the exclusive jurisdiction of the courts within the jurisdiction of the Lyon Court of Appeal, notwithstanding multiple defendants or third-party proceedings.
20.3 Notwithstanding these provisions, the Agreement can be automatically terminated under the conditions set out in Article 15.
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