Terms of Service
TERMS OF SERVICE
Thank you for signing up for an account with Datama Solutions, property of Datama SAS, a company incorporated in France, having its registered office at 7 rue Pierre Ginier 75018 Paris, FRANCE, registered established under the laws of France under the number 832 573 281, taking into the person of his legal representative, Mr. Guillaume DE BÉNAZÉ; By placing an order or by clicking to accept this Agreement or using or accessing any Datama Solutions or related services, you agree to all the terms and conditions of this Terms of Service Agreement (“Agreement”). If you are using a Datama Solutions or related services on behalf of a company or other entity, then “Client” or “you” means that entity, and you are binding that entity to this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement and that, if the Client is an entity, this Agreement and each Order Form is entered into by an employee or agent with all necessary authority to bind that entity to this Agreement. This Agreement includes any Order Forms and Service-Specific Terms (as defined below) as well as any policies or exhibits accepted by You. The Licensee and Licensor are hereinafter referred to together as the » Parties » or individually as a » Party « .GENERAL TERMS AND CONDITIONS
INTRODUCTION:
As a preliminary point, the Parties declare and recognize that the negotiations that preceded the conclusion of this Agreement were conducted in good faith and benefited, during the pre-contractual negotiation phase, from all the information necessary and useful to enable them to proceed. The Parties knowingly and mutually disclose any information that could determine their consent and that they could legitimately ignore.The Licensor’s activities include the development, programming and marketing of computer software. The software Datama (hereinafter » the Software « ) is a computer program whose function is to analyse the data transmitted by a user to derive information in the form of graphical visualizations or tables. It is described in the appendix to this document (Appendix 1 – Software Features). The Licensor has developed the Software using, in particular, a number of computer packages called » R Packages » that are freely available (hereinafter referred to as » open source « ), which have been developed by several authors. The detail of each of these R packages can be provided under request. The Licensor has developed the Software by putting into practice all its expertise to obtain the desired functionalities. The Licensee wishes to benefit from a license to use the Software as part of its analytics activity. As the author, designer and owner, the Licensor hereby declares that it has the appropriate authority to grant this Software License. It is in this context that the Licensor and Licensee have come together to formalize the grant of a right of use to the Software in the terms of this Agreement (hereinafter the » Agreement « ). It is specified for all intents and purposes that this Preamble is part of the Contract and can not be dissociated from it. THIS BEING PREVIOUSLY RECALLED; IT WAS AGREED AS FOLLOWS:ARTICLE 1 – DEFINITIONS
In this Agreement each of the terms hereinafter defined has the same meaning as follows: the » Licensor » means the undersigned of the first part; the » Licensee » means the undersigned of the second part; the » Parties » means together the Licensor and the Licensee; The » Software » means the computer program described in the preamble of the Present Agreement, the use of which is granted to the Licensee and exclusively for its own use; the » Agreement » means this agreement between the Parties which legally qualifies as a license to use the Software.ARTICLE 2 – CONTRACTUAL DOCUMENTS
The contractual documents are in descending order of priority:– The contract and its amendments;
– His annexes.
It being specified that the introduction and the appendices shall form an integral part of the contract. In the event of contradiction between one or more stipulations appearing in any one of these different documents, the document of higher rank will prevail.
ARTICLE 3 – ENTRY INTO FORCE AND DURATION OF CONTRACT
The Contract shall enter into force upon signature by the last of the Parties. The Contract is concluded for an initial duration of 12 (twelve) months. At the end of the initial term, it will be renewed by successive periods of 12 (twelve) months, unless denounced by one or the other party by registered letter with acknowledgment of receipt, by respecting a notice 3 (three) weeks before the expiry of the term in progress.ARTICLE 4 – PURPOSE OF THE CONTRACT
Under this Agreement, the Licensor hereby grants the Licensee the non-exclusive, non-transferable, non-sublicensable right to use the Software.ARTICLE 5 – CONDITIONS OF USE
The present License to use the Software granted under the Agreement and for its duration, allows the Licensee to use the Software for its intended purpose and for its own needs.ARTICLE 6 – DELIVERY OF SOFTWARE
On the date this Agreement is signed, the Licensor grants the Licensee access to an internet portal that allows him to use the Software and view the results for a limited period of time.ARTICLE 7 – SUBSCRIPTION FEE
The Licensee shall pay all fees specified in all Order Forms as compensation for the use of the Service. In the event of an issue with the Software and the inability for the Licensee to access the services for any reason whatsoever which is not excluded by this Agreement, it is however agreed that its liability shall be limited to the price of this license. By mutual agreement, the Price of the license shall be adapted according to the unavailability period of the licence.ARTICLE 8 – CORRECTIONS – CORRECTIVE MAINTENANCE AND FOLLOW-UP OF THE SOFTWARE – SOFTWARE SOURCE CODE
The Licensor expressly reserves the exclusive right to interfere with the Software to enable it to be used in accordance with its purpose and in particular to improve its use, to correct errors, or to develop new functionalities.The Licensee therefore formally forbids to intervene or to involve a third party on the Software and expressly authorizes the Licensor to access and intervene on the Software at any time, without reservation or limitation.
The Licensor shall not be held liable for any prejudice resulting from malfunctions or unavailability of the Software during the interventions that would be necessary for its maintenance and follow-up, whatever the duration of these interventions that the Licensor undertakes, however, to limit to the maximum.
The Licensee will not be able to access the source code of the Software and may not access it by any means whatsoever.
The Licensee unreservedly accepts that the functionality and specifications of the Software may be modified at any time and without notice for the purpose of improvements, adaptations to technical and commercial constraints, updates and developments of the Software.
ARTICLE 9 – EVOLVING MAINTENANCE SERVICES AND SOFTWARE UPDATE
The Licensor has the exclusive right to update the Software and perform upgradeable maintenance to ensure its proper operation and to make possible improvements to the Software.As such, the Licensee has the right to access the changes and updates made by the Licensor to the Software and receive a maintenance service continues on the Software.
If the Licensee elects to receive updates from the Licensor on the Software and the Maintenance Service, the Licensor undertakes to maintain and update the Software to enable Licensee to use the Software in its latest updated version of the changes made.
ARTICLE 10 – EVOLUTIVITY
The Licensor warrants that the Software is likely to evolve to meet the foreseeable evolution of the Licensee’s requirements.This upgradeability guarantee can not confer to the licensee the right to require the development of new functionalities.
Only the evolutions of the functionality of the Software existing at the date of delivery of the Software are covered by the upgradeability guarantee granted in this article.
The Licensee is prohibited from making any changes to the Software.
ARTICLE 11 – LIABILITY
Article 11.1 – Liability of the Licensor
The Licensor does not undertake the truth of the information loaded on the Software.The Licensor assumes no responsibility for the rights of use of the data loaded on the Software.
The Licensor shall use all means to ensure the continued access and operation of the Software.
Nevertheless, given the limitations of Internet, the Licensor cannot exclude that the access and operation of the Software is interrupted in particular in the event of force majeure, improper operation of the Licensee’s equipment, malfunctions of its Internet network, or maintenance operations intended to improve the services of the Software.
Consequently, the Licensor cannot be held responsible for any interruption of the Software, whether voluntary or not, the Licensor makes its best efforts to limit any interruptions that may be attributable to it.
Article 11.2 – Liability of the Licensee
The Licensee uses the Software under its sole responsibility.The Licensee, the User of the Software, is solely responsible for all the content he chooses to transmit to the Software for analysis.
Licensee is solely responsible for any direct or indirect prejudice that it may suffer as a result of inaccurate, incomplete, and/or misleading information that it provides to the Software.
The Licensee is solely responsible for the protection of personal data stored in the Software and compliance with the legislation relating to the computerized processing of personal data.
ARTICLE 12 – INTELLECTUAL PROPERTY
Article 12.1 – Principles
This Agreement does not grant the Licensee any intellectual property rights in the Software.Furthermore, any additional settings and implementations developed by Licensor belong to him without benefiting the Licensee any right including right to intellectual property.
Article 12.2 – Reproduction – Adaptation – Copy
The Licensor remains the sole owner of the Software.Except in the case of authorization given by the Licensor to the Licensee to modify the Software, Licensee expressly prohibits itself from reproducing or copying, permanently or temporarily, the Software in whole or in part, by any means and in any form.
ARTICLE 13 – CONFIDENTIALITY
The Parties refrain from communicating to anyone, directly or indirectly, all or part of the information of any nature, commercial, industrial, technical, financial, nominative, etc., which has been communicated to them by the other Party, or of which they would have knowledge about the execution of this Contract.However, the Licensee authorizes the Licensor to disclose his name for purely commercial purposes of the Software.
ARTICLE 14 – PERSONAL DATA
Article 14.1 – Processing of personal data implemented by the Licensor
As part of the execution of this Contract, the Licensor is required to collect and process personal data concerning employees and/or managers of the Licensee, in order to allow him to manage the contractual relationship. In this context, the Licensor is required to set up a processing of Personal Data, in compliance with the applicable regulations.Article 14.2 – Processing of personal data implemented by the Licensee
As part of the execution of this Contract, the Licensee is required to collect and process personal data concerning the Licensor, the employees and/or managers of the Licensor in order to allow it to manage the contractual relationship. The Licensee is required to set up a processing of Personal Data, in compliance with the applicable regulations.ARTICLE 15 – TERMINATION OF THE LICENSE
In the event of the termination of this License and whatever the cause, the Licensee will no longer have access to the Internet portal of the Software and will no longer be able to view the results communicated by the Software.It expressly refrains from attempting to gain access to it in any way whatsoever, particularly by indirect means, as of the termination of this License.
ARTICLE 16 – EXCEPTION OF INEXECUTION
It is recalled that pursuant to Article 1219 of the Civil Code, each Party may refuse to perform its obligation, even if it is due, if the other Party does not execute its own and if such non-performance is sufficiently serious, that is to say, likely to call into question the continuation of the contract or to fundamentally upset its economic equilibrium.The suspension of execution shall take effect immediately upon receipt by the defaulting Party of the notice of default sent to it by the defaulting Party indicating the intention to enforce the non-performance that the defaulting party will not have remedied the breach noted, served by registered letter with acknowledgment of receipt.
This exception of non-performance may also be used as a precautionary measure, in accordance with the provisions of Article 1220 of the Civil Code, if it is clear that one of the Parties will not fulfill at the due date the obligations incumbent on it and that the consequences of this non-performance are sufficiently serious for the Party victim of the default.
ARTICLE 17 – FORCE MAJEURE
The Parties shall not be held responsible if the non-performance or delay in the performance of any of their obligations as described herein arises from a case of force majeure within the meaning of Article 1218 of the Civil Code.The Parties observing the event shall without delay inform the other party of its inability to perform its service and justify it by registered letter with acknowledgment of receipt. The suspension of the obligations cannot in any case be a cause of responsibility for non-performance of the obligation in question, nor induce the payment of damages and interests or penalties of delay.
However, upon the cessation of the cause of the suspension of their reciprocal obligations, the Parties shall make every effort to resume as soon as possible the normal execution of their contractual obligations. For this purpose, the party prevented will notify the other of the resumption of its obligation by registered letter with acknowledgment of receipt.
ARTICLE 18 – TERMINATION OF CONTRACT
Article 18.1 – Termination for force majeure
The termination of right by force majeure can only take place thirty (30) days after the reception of a formal notification notified by registered letter with acknowledgment of receipt or any extrajudicial act.However, such notice shall state the intention to apply this clause.
Article 18.2 – Termination for failure of a party to fulfil one of its obligations
In the event of non-compliance by either Party with the obligations provided for in this Agreement, this Agreement may be terminated at the option of the aggrieved party.This Agreement will be terminated upon the acknowledgment by the Licensor of any of the following cases, without this list being exhaustive or exhaustive:
- Non-payment at the end of the monthly fee;
ARTICLE 19 – CESSIBILITY AND SUB-TREATMENT
This Agreement is entered into on a “personal basis” with the Licensee. It is expressly agreed that it will not be transferred to third parties by the Licensee for any reason, in any form whatsoever, without the prior written consent of the Licensor.The Licensor is expressly authorized to subcontract all or part of its services.
ARTICLE 20 – NON-SOLICITATION OF STAFF
The Parties shall not hire, cause to be hired, or cause to be employed, directly or indirectly, without the prior written consent of the other Party, any person who has participated in the performance of this Agreement throughout its term and thirty-six (36) months after the cessation of the contractual relations of the Parties defined herein.In the event of a violation of the provisions of this Article, the Party responsible shall pay the other Party a lump sum equal to thirty-six (36) months of the highest gross monthly remuneration of the person sought.
ARTICLE 21 – TOLERANCES
It is formally agreed that any tolerance or waiver by one of the Parties in the application of all or part of the commitments provided for in this contract, whatever the frequency and duration may be, cannot modify this contract or generate any right.ARTICLE 22 – NULLITY AND INDEPENDENCE OF CLAUSES
The eventual cancellation of one or more clauses of this agreement by a court decision, by an arbitral award, or by mutual agreement between the Parties, shall not affect its other stipulations, which will continue to produce their full and effect as long as the general scheme of the Convention can be saved.If the execution of one or more of the clauses of this agreement becomes impossible due to its cancellation, the Parties will work together to establish a new clause as close as possible to the spirit and letter of the old clause, while the other stipulations remain in force.
ARTICLE 23 – APPLICABLE LAW, FRIENDLY RULES AND COMPETENT JURISDICTION
By express agreement between the Parties, this Agreement is governed by French law, to the exclusion of any other legislation.In the event of disagreement between the Parties, the Licensee shall inform the Licensor by registered letter with acknowledgment of receipt. Upon receipt of this letter, and within fifteen (15) days, the Licensor will have to propose a solution for amicable settlement of the dispute to the Licensee. In the event of failure of this attempt or failure of the Licensor to reply, the Licensee may bring his dispute before the competent courts.
Any dispute between the Licensor and the Licensee regarding the formation, performance, interpretation, validity, termination, or termination of this Agreement will be under the jurisdiction of courts of jurisdiction of the Court of appeal of PARIS (France).