1. Identification

 

Combo Solutions, a SAS with share capital of €229,365, headquartered at 26, rue Louis Blanc, 69006 Lyon, registered with the Lyon Trade and Companies Registry under number 811 426 584, VAT no. FR65811426584, represented by Thomas Jusselme (Chairman) and Guillaume Lafont (Managing Director), is the publisher of the "Vizcab" web platform, which can be accessed via the URL www.vizcab.io (hereinafter the "Platform").

Hereinafter referred to as the "SERVICE SUPPLIER";

 

 

2. Preamble

 

The Service Provider has designed and developed a standard, configurable Platform (the "Platform"), accessible online on a computer. This Platform offers Customers the possibility, after collecting and entering information on a construction project, to generate a database of architectural and technical alternatives for a project and to simulate the performance of these alternatives over their entire life cycle on the basis of U.S. Patent No. 10,635,842 and European patent pending EP 16178041.6. The service can also be used to carry out a life-cycle analysis of a particular project, and to check its compatibility with E+/C- performance levels.

The list of functionalities is specified on the website(www.vizcab.io), (hereinafter, the "Site").

The Customer wishes to be able to use the Platform for its own needs and, in general, to benefit from the services offered by the Service Provider under the following conditions.

The Customer acknowledges that the service is an online service, identical for all customers. It is the Customer's responsibility to check that the functionalities specified meet their needs before placing their order online, or to contact the Service Provider if they require further information.

Before using the Platform, the Customer must ensure that he/she has the technical and IT resources to use the Platform and that his/her browser allows secure access to the Site. The Customer must also ensure that the computer configuration of their hardware/equipment is in good condition and free of viruses.

The Customer guarantees that he/she is placing the order as a professional, in the exercise of his/her activity.

The Customer must approve the General Terms and Conditions ("GTC") before registering online for the service. Validation of online registration implies acceptance of these GCS. These are regularly updated, and the applicable GTC are those in force on the date the Order is placed.

In the absence of express acceptance by the Customer, any condition to the contrary shall be unenforceable against the Service Provider, regardless of when it may have been brought to the attention of the Service Provider.

The fact that the Service Provider does not invoke any provision of these GTC at a given time shall not be construed as a waiver of the right to invoke any provision of these GTC at a later time.

 

 

3. Definitions

 

In addition to the terms defined as necessary in the Contract, the terms whose first letter is capitalized have, in the Contract, the meanings attributed to them below.

 

Anomaly

Refers to any anomaly in the operation of the Service specifically linked to a problem affecting the Platform. Is considered 'Blocking' an Anomaly which completely prevents the use of the Platform by the Customer. An Anomaly is deemed 'Major' if it prevents the use of one or more functionalities of the Platform considered to be a priority for the Customer's business, and which cannot be circumvented without the performance of a maintenance service.

 

Customer

Refers to the company or professional who has accepted the GTC and paid the subscription fee for the www.vizcab.io website.

 

Contract

Refers to all the stipulations set out in the General Terms and Conditions of Sale and Use (or 'GTS'), as well as any amendment which may supplement, modify or replace them, it being specified that the preamble and appendices form an integral part thereof. The parties acknowledge that the Contract is synallagmatic, for consideration and successive performance.

 

Mise en Production (or 'MEP')

Refers to the date from which the Service is available online to the Customer. A new production start-up is required after each maintenance operation.

 

Host

Refers to the subcontractor who hosts the Platform and Customer data.

 

Maintenance

Refers to the Platform's corrective maintenance and assistance/support services. The amount of this service is included in the Fee. The Service Provider's Maintenance commitments are exhaustively defined in the Contract.

 

Parts

Refers to the Service Provider and the Customer.

 

Royalty

Refers to the amount owed by the Customer to the Service Provider in consideration for the right to use the Service. The Fee is billable and payable in accordance with the conditions set forth herein.

 

Service

Refers to the Customer's right, for the duration of the fixed Contract (i) to use the Platform and its functionalities and (ii) to access Maintenance services. The services included in the Service form an indivisible whole. The list of services comprising the Service, together with the service levels and the list of Platform functionalities, describe the essential qualities of the Service provided by the Service Provider.

 

Users

Refers to any natural person to whom the Customer has authorized access to the Service and who has a member account on the Platform.

 

 

4. Purpose of the Contract

 

The purpose of the Contract is to define the conditions under which the Service Provider, through the use of the Platform, provides the Service to the Customer in return for payment of the Fee. Use of the Service is granted to the Customer for the sole benefit of the Users to whom it has granted access, and for whom it vouches for compliance with the Platform's conditions of use. Users must be employees of the Customer. The number of Users is not limited, but the use of Services (generation of exploration databases) is limited according to the type of offer subscribed to. To increase the number of simulations, the Customer may contact the Service Provider for a quotation.

The purpose of the Platform is to manage data in order to benefit from statistics on the performance of the buildings to be constructed: generation of design alternatives, simulations of their performance, exploration using data-visualization techniques, analysis of sensitivities on design parameters, definition of targeted objectives for products using target cascading and realization of building lifecycle analysis according to E+/C- standards.

All functionalities are specified on the Site.

Any other services to be performed by the Service Provider must be quoted by the Service Provider and expressly accepted in writing by the Customer prior to being carried out by the Service Provider. These services are subject to additional invoicing.

The Contract consists of these GTC and comes into force between the Parties once the Customer's registration has been paid for.

 

 

5. Information on using the Platform

 

The Customer declares that he/she is aware of the characteristics and limits of the Internet as described below:

• That data transmission over the Internet is relatively unreliable, and that no one can guarantee that the Internet will function properly.
• That the Service Provider has taken significant measures to secure access to the Platform, in accordance with an obligation of means, but that data circulating on the Internet may be subject to misappropriation, and that therefore the communication of passwords, confidential codes, and more generally, of any sensitive information is carried out by the User at his/her own risk.
• That the Internet is an open network and that information transmitted by this means is not protected against the risks of misappropriation, fraudulent, malicious or unauthorized intrusion into the User's information system, piracy, unauthorized alteration or extraction of data, modifications, malicious alteration of programs or files, or contamination by computer viruses. That it is therefore the User's responsibility to take all appropriate measures to protect its own data and/or software stored on its servers from contamination by viruses and from attempts by third parties to gain access to its computer system via the access service.

As a consequence of the foregoing, and with full knowledge of the characteristics of the Internet, the User waives the right to hold the Service Provider liable for one or more of the facts or events mentioned above, except in the event of a breach of an obligation of means.

The User acknowledges having been sufficiently informed of the computer requirements for accessing the Platform.

Browsers for which the SaaS service is optimized: Google Chrome and Firefox.

Name of hosting provider acting as subcontractor to the Service Provider: Amazon. Data is hosted in Europe (Paris and Frankfurt). Details of the services offered by Amazon on its DataCenter can be requested from the Service Provider (security, backup, etc.).

Customer data is backed up monthly, with automatic alerts and immediate restart of the process in the event of failure of the last back-up.

Support hours for the Administrator: between 2 p.m. and 5 p.m., Monday to Friday, except public holidays in France.

The Customer acknowledges having been sufficiently informed of the computer requirements for accessing the Platform.

 

 

6. Strict limits on use of the Platform

 

The Service includes the right to use the Platform only for the duration of the Contract as defined below, on a non-exclusive and non-transferable basis, and may not be sub-licensed, assigned, transferred or made available to any third party, whether free of charge or against payment, under any practical or legal terms whatsoever. The Platform may be used :

• (i) only by remote access via the Internet, in compliance with the identification and rights assignment rules (the 'Identifiers') of the Customer, who alone decides which Users he authorizes to use the Service. Users authorized by the Customer must be employees of the Customer.
• (ii) only for the processing of User data by the Customer under the conditions exhaustively defined in the Contract. Use of the Platform is limited per year according to the type of offer subscribed to by the Customer and unless authorized by the Service Provider and validated by the Customer in the form of a quotation.

The Platform is an intellectual work of which the Service Provider retains full ownership (protected by U.S. Patent No. 10,635,842 and European patent pending EP 16178041.6) and which the Customer and all Users are prohibited from using, in particular:

• copy or reproduce, represent, modify, transmit, publish, adapt in whole or in part by any means and in any form whatsoever
• Use other than in accordance with the strictly interpreted stipulations herein
• Translate or transcribe into any other language or language, or adapt or add to it any object not conforming to its specification.

This clause concerns any element of the Platform (images, databases, etc.) other than those belonging to the Customer or to Users to whom he has granted access.

For the elements (logo, image, video, written content, etc.) transmitted by the Customer or the Users to whom it has granted access, the Customer grants the Service Provider a free license to reproduce and represent them on the Platform, on the Internet and on any digital or paper medium, worldwide and for the entire duration of the protection of the rights.

Any attempt by the Customer to modify the conditions of use of the Platform, or any use of the Platform under conditions not provided for in the Agreement, without the prior written consent of the Service Provider, shall be deemed to constitute a sufficiently serious breach on the part of the Customer and shall entitle the Service Provider to suspend the Service immediately and ipso jure after formal notice in accordance with the conditions of Article 'Termination'.

User IDs are personal and confidential, and are the responsibility of the Customer. They may only be changed at the User's request. Users undertake to take all necessary steps to keep their User IDs secret and not to divulge them in any form whatsoever. The Customer shall ensure that no person not expressly authorized by the Customer has access to the Service. In general, the Customer assumes responsibility for the physical and logical security of the individual terminals used to access the Service. Should the Customer become aware that an unauthorized person has access to the Service, the Customer undertakes to inform the Service Provider without delay. In the event of loss or theft of an Identifier, the Service Provider will send a new password to the User.

 

 

7. User responsibility

 

The Customer is responsible for the actions of the Users he has authorized to use the Platform.

The Users whom the Customer may authorize to use the Platform are natural persons who are employees of the Customer.

Each User must agree to abide by the terms of use of the Platform and to keep his/her login and password confidential. The number of Users is unlimited. Each account is personal and may not be used by a third party.

The Customer is responsible for Content inserted by Users that it has authorized or that is under its authority. Users declare that they are the authors or have all necessary rights or authorizations for all Content that they upload to the servers or use within the framework of the Service.

In this respect, the Customer declares that users hold the intellectual property rights and/or authorizations to reproduce and represent the Content they download and for which they use the Platform. The Service Provider may not be held liable for failure to comply with this clause.

The Customer undertakes not to download Content that contains or is likely to contain viruses or programs that destroy data, or Content that is illegal or likely to offend public order or morality. The Customer also undertakes to check that the Content he/she uses does not contain any virus or program likely to disrupt the operation of the Service or to cause any prejudice whatsoever to other users of the Service.

The Customer is entirely responsible for any creation, transmission or publication of Content using the Platform and for the consequences of its actions.

The use of the Service, and in particular the storage of Content, is carried out under the sole responsibility of the Customer and within the limits of the intellectual property rights held and/or obtained by the Customer. It is the Customer's responsibility to respect the rights of third parties.

The Customer acknowledges and accepts that Content deemed to contravene applicable laws or regulations may be handed over by the Service Provider to the authorities responsible for enforcing the law.

It is expressly agreed that in the event that the Service Provider is called into question, for any reason whatsoever, in any country whatsoever, by a third party on the basis of industrial and/or intellectual property rights relating to an element directly or indirectly supplied by the Customer, including by any User, the Customer undertakes to fully indemnify the Service Provider against the direct and/or indirect economic and financial consequences (including the costs of proceedings and defence) arising from such claims.

The Customer must ensure that the data is sent to the Platform. The Customer may not blame the Service Provider on any grounds whatsoever for the non-receipt or loss of transmitted data. The Customer shall keep a backup of the data transmitted.

 

Content ownership

Content transmitted by the Customer on the Platform remains the property of the Customer. The Customer authorizes the Service Provider to communicate this Content to third parties, and to make it visible to persons connected to the Application.

The Service Provider reserves the right to refuse the presence on its servers of files imported by the Customer that are deemed to be technically non-compliant with the servers or to be detrimental to their performance or to illegal content if the latter has been reported to the Service Provider by a User.

 

Content preservation

Use of an Explo project is defined as access to the results of an Explo via the Platform.

Explo projects created by the customer are kept for a period of three (3) years after their last use. After this period, project data and backups are permanently deleted.

 

Customer responsibility

The Customer is responsible for ensuring that Users to whom it authorizes access to the Service comply with the present Contract and the Platform's general conditions of use.

The Service Provider's role is limited to making the Platform available to the Customer.

The Customer is responsible for ensuring that its use of the Platform complies with legal and regulatory provisions. The Service Provider makes no representation or warranty to the Customer that the Customer's use of the Platform complies with all applicable laws and regulations.

The Customer assumes full responsibility for the direct and/or indirect consequences of applying the statistics created by the Platform, without being able to seek the liability of the Service Provider on any grounds whatsoever. Statistics generated automatically by the Platform must be verified and processed by professionals.

The Customer is responsible for the messages he sends via the Platform and for the impact they may have on the public. In its capacity as host, the Service Provider may remove without notice any inappropriate or illegal content that has been reported to it.

Under no circumstances may the Customer hold the Service Provider liable if a function malfunctions due to a failure on the part of the Customer or a User.

The Customer is responsible to the Service Provider for the use of the Platform by all Users or any third party.

 

 

8. Contract duration

 

For Platform access subscriptions :

 

Fixed-term cash subscriptions :

For fixed-term subscriptions: The Contract takes effect from the Service activation date for the duration indicated at the time of subscription. At the end of this period, the Customer will no longer have access to the Service, and will have to re-subscribe in order to have access to it again.

Fixed-term subscriptions cannot be cancelled by the customer for the duration of the subscription (except under the conditions set out in article 17). The subscription is therefore due in full on subscription.

 

Monthly-paid open-ended subscriptions :

For monthly payment subscriptions: The Contract takes effect from the Service activation date for the initial and firm duration ("Initial Term") of one (1) month.

At the end of this initial term, the Contract is renewed by tacit agreement for the same duration. As a result, new access rights to the Service will be payable by the Customer on a monthly basis.

For the termination of monthly payment subscriptions: The contract may be terminated by the Customer at any time, at the end of the one (1) month period, by sending a written request to help@vizcab.io. The amount paid for the subscription in the month of termination remains due to the Service Provider.

 

Open-ended annual subscriptions :

For annual payment subscriptions: The Contract takes effect from the date of activation of the Service for the initial and firm duration ("Initial Term") of one (1) year. At the end of the Initial Term, the Contract is renewed by tacit agreement for the same duration. As a result, new access rights to the Service will be payable by the Customer on an annual basis.

Cancellation of annual subscriptions: The contract may be cancelled by the customer at any time by sending a written request to help@vizcab.io. The total amount paid for the subscription in the year of termination remains due to the Company.

 

For all other services :

The Customer may also order other services, which will be carried out and invoiced in accordance with the conditions and rates in force as indicated by the Service Provider on the day of the order or, where applicable, on the basis of a prior quotation.

 

 

9. Service availability

 

The Service Provider will do its utmost to ensure that the service is accessible on working days on a best-efforts basis, but does not commit to an availability rate. Once a Blocking Anomaly has been reported, the Service Provider will inform the Customer of the time required to restore the service.

The Customer acknowledges that the Service Provider may not be held liable for any interruptions in the operation of the Internet. The Service may also be unavailable due to maintenance operations. The Service Provider will inform the Customer at least 24 hours in advance by means of a message accessible on the Customer's account.

The Service Provider reminds the Customer that the provision of a link between the Platform and the Customer's information system is not included in the Service and that it is the Customer's responsibility to have a connection to a communication network that enables him/her to effectively receive data from and transmit data to the Platform, and that the costs relating to the Customer's Internet connection and computer system are costs that the Customer must bear himself/herself.

THE PROVIDER REMINDS THE CUSTOMER THAT THE INTERNET, WHICH ENABLES THE PROVIDER TO RENDER THE SERVICE, IS AN OPEN AND INFORMAL NETWORK, CONSTITUTED BY THE INTERNATIONAL INTERCONNECTION OF COMPUTER NETWORKS USING THE TCP/IP STANDARD, WITH NO OBLIGATION OF SUPPLY OR QUALITY OF SUPPLY BETWEEN OPERATORS OF THESE NETWORKS. CONSEQUENTLY, THE PROVIDER CANNOT GUARANTEE THAT THE SERVICE WILL BE AVAILABLE WHEN THE INTERNET IS OPERATING, NOR THAT USE OF THE SERVICE WILL BE UNINTERRUPTED.

The Customer acknowledges that (i) the description of the Service, (ii) the list of functionalities of the Platform and (iii) the availability of the Service described in this Article together render the Service Provider's Service of a quality that complies with the Customer's legitimate expectations, in consideration of the nature of the services, the uses and the amount of the consideration that the Customer undertakes to pay to the Service Provider to benefit from the services that together and indivisibly form the Service.

 

 

10. Access - Financial conditions

 

The registration summary shows the applicable price. The customer may modify his registration and correct any errors before proceeding with acceptance. The customer must provide complete and accurate information (company name, SIRET number, address, VAT number, name of legal representative, etc.).

After accessing the summary of his registration, the Customer confirms it by ticking the GTC validation box, then clicking on the validation icon.

Once the registration has been validated, the Customer pays in accordance with the terms specified below.

The amount and terms of payment of the Royalty (and any other sums due by the Customer for additional services) are expressed exclusive of tax and inclusive of VAT. The Customer is solely responsible for the payment of the Royalty and for the payment of any tax and/or duty connected with the performance of the Contract. Fees are payable in arrears, on the day of registration, for the duration of the Contract.

Invoices are payable in euros by credit card or bank transfer. In the case of payment by credit card, the Site uses the Stripe security system, a service provider specializing in online payment security. This system guarantees total confidentiality of the customer's banking information. The credit card transaction between the customer and the secure system is therefore fully encrypted and protected. The Customer's bank details are not stored electronically by the Service Provider.

In the event of payment by bank transfer or direct debit, the Customer must contact the Service Provider so that the latter can provide the Customer's bank details.

The Customer guarantees the Company that he/she has the necessary authorizations to use the payment method.

The Royalty takes into account :

• access to the Platform's functionalities
• maintenance and update costs.

Any delay in payment by the Customer after the contractually agreed due date and after written notice of default by the Service Provider to the Customer has remained without effect for a period of ten (10) days shall be deemed to constitute a sufficiently serious breach of contract on the part of the Customer and shall entitle the Service Provider to suspend the Service.The Service Provider does not discount.

Conformément à l’article L.441-6 du Code de Commerce, en cas de non-paiement de tout ou partie de la Redevance (ou de toute autre somme due par le Client au titre du Contrat) dans les délais contractuels, (i) toute somme impayée produira automatiquement des intérêts de retard au jour le jour jusqu’à la date de son paiement intégral en principal, intérêts, frais et accessoires, à un taux égal à trois (3) fois le taux d’intérêt légal, sans qu’un rappel soit nécessaire et sans préjudice des dommages-intérêts que le Prestataire se réserve le droit de solliciter de manière judiciaire (ii) conformément à l’article L.441-6 Code de commerce, une indemnité forfaitaire pour frais de recouvrement d’un montant de 40 € sera exigible de plein droit pour chaque facture concernée. Conformément à l’article L.441-6 du Code de Commerce, les frais de recouvrement, justifiés sur facture, des sommes impayées par le Client (frais de procédure, dépens, débours et honoraires d’avocat et d’huissier) sont réputés constituer un accessoire de la créance du Prestataire et sont intégralement à la charge du Client.

Conformément à l’article 1195 du Code civil, le Prestataire déclare ne pas accepter le risque de fluctuation à la hausse du coût de l’hébergement et du stockage de la Plateforme et des données du Client qui lui sont facturés par l’hébergeur qui opère ces prestations spécifiques en sous-traitance du Prestataire. En conséquence, toute évolution à la hausse de plus de QUINZE (15) % du prix de l’hébergement dont le Prestataire justifierait par écrit au Client est réputée constituer une circonstance imprévisible rendant excessivement onéreuse la prestation du Service pour le Prestataire. En cette circonstance, les parties s’engagent à renégocier de bonne foi le Contrat. A défaut de parvenir à un accord écrit dans les trente (30) jours de la notification visée ci-dessus, chacune des parties pourra prononcer la résiliation du Contrat, sans indemnité d’aucune sorte pour aucune des parties. Avant l’accord sur le nouveau prix, ou la résiliation du Contrat dans les conditions qui précèdent, le Prestataire sera tenu d’exécuter le Contrat, aux conditions financières et selon les modalités convenues avec le Client.

 

 

11. Obligation to cooperate

 

In general, each Party undertakes to perform the Agreement in good faith, in particular by cooperating with the other Party in the performance of the services for which it is responsible, for example by communicating to the other Party all documents, information and data necessary or requested to enable the Service Provider to provide the Service under the conditions provided for in the Agreement.

 

 

12. Duty to inform

 

As a professional service provider, the Service Provider undertakes to provide the Customer with information throughout the performance of the Contract.

The Service Provider draws the Customer's attention to the fact that the Service offered is a standard service designed for companies of varying sizes operating in different business sectors. It is therefore the Customer's responsibility, prior to signing the Contract, to check that the Service corresponds to the definition of the Customer's needs, and that the Service is sized to meet the Customer's own business objectives, which the Service Provider cannot know. Should the Customer fail to provide the Service Provider with a detailed written statement of its requirements, the Customer acknowledges that the Service Provider's online sales proposal shall be deemed to be an expression of its requirements.

The Service Provider does not guarantee the compatibility and interoperability of the Platform with other Customer software. The Platform's compatibility and interoperability presuppose specific IT developments to be carried out by the Service Provider. These developments may be carried out at the Customer's request, and will then be invoiced by the Service Provider under conditions to be determined by the Parties.

The Customer acknowledges having been informed by the Service Provider that the implementation and proper use of the Service may depend on the Customer's ability to train its Users in advance in the use of the Service and to adapt certain of its internal organizational and/or operating processes.

 

 

13. Warranties relating to the Service and the Platform

 

The Service Provider warrants (i) that the Platform is original, (ii) that it owns all intellectual property rights in the Platform, with the exception of any Platform modules licensed under an open source license, or that it has the right to license to the Customer any additional Platform modules selected by the Customer and integrated into the Service, whose intellectual property rights are held by a third party who has granted the Service Provider the right to use them, so that the Service Provider can in turn validly grant the Customer the right to use them under the conditions set out in the Contract.

During the Term of the Contract, the Service Provider shall indemnify the Customer against any action or proceedings arising from any infringement by the Platform of a third party's intellectual property rights. The Service Provider shall, at its own expense and at its own option, defend any action brought against the Customer by a third party alleging infringement of the Customer's rights. The Service Provider shall pay all damages awarded against the Customer by a final and binding court decision, the Customer being responsible for its own defense in the event of criminal proceedings. The Service Provider guarantees the Customer peaceful enjoyment of the use of the Platform and any additional modules, provided that the Customer notifies the Service Provider without delay of any threatened action or proceedings in this regard, enables the Service Provider to defend itself and cooperates with the Service Provider in this defense at the latter's expense (except in criminal matters as stated above). The Service Provider shall have full control of the civil defense, including appeal, negotiation and the right to reach a settlement within the meaning of articles 2044 et seq. of the French Civil Code.

In the event of a civil judgment against the Service Provider by a court decision having the force of res judicata in the main proceedings, or in the event of a settlement entered into by the Service Provider, the Service Provider may, at its option and at its own expense, either (i) obtain for the Customer the right to continue to use the Platform and/or any additional modules - without increasing the amount of the financial consideration payable by the Customer and without interrupting the Customer's use of the Service - possibly by modifying all or part of the Platform (and/or an additional module) so that it no longer constitutes an infringement of a third party's rights, or (ii) if the right to continue to use the Platform (and/or any additional module) cannot be obtained, or if the Platform and/or any additional module cannot be replaced or modified at a reasonable cost so that it no longer constitutes an infringement of a third party's rights, terminate the Contract and refund to the Customer the total amount of the Royalties paid by the Customer to the Service Provider for the period subsequent to the last service for which no consideration has been received.

 

 

14. Personal data protection

 

The Customer is solely responsible for processing the data for which he uses the Platform.

The Customer is the sole owner of the data, in particular personal data, processed by the Service on its behalf. All the rights of the persons concerned (right of access, rectification, etc.) must be exercised by these persons directly with the Customer, and the Service Provider undertakes to comply with any written instructions from the Customer in this respect.

In accordance with European and French legislation on the protection of personal data prior to any use of the Platform or the Service by the Customer and throughout the duration of the Contract, the Customer warrants to the Service Provider:

• (i) that it has collected and processes personal data in a lawful, fair and transparent manner, for specified, explicit and legitimate purposes, and of which the Customer declares that it has duly informed the persons concerned. Consequently, the Customer is solely responsible for the obligation to make a prior declaration to a supervisory authority concerning the processing of its personal data, and the Customer warrants to the Service Provider that it has done so.
• (ii) that it is solely responsible for the processing of personal data that it collects, enters or processes in connection with its use of the Service
• (iii) that it alone determines the purposes and means of the processing of its personal data carried out in particular through the use of the Service. Consequently, it is the Customer's responsibility, prior to using the Service, to check that the personal data processing requested from the Service Provider complies with the purpose and means of the personal data processing implemented by the Customer, so that the Service Provider cannot be held liable in this respect, on any grounds whatsoever. Should this not be the case, the Customer undertakes to indemnify and hold harmless the Service Provider, without restriction or reservation, against any consequences, in particular pecuniary consequences, for which the Service Provider may be held liable.

The Service Provider is a subcontractor for the processing of the Customer's personal data.

The Service Provider acts as a processor of the Customer's personal data within the meaning of Article 28 of EU Regulation 2016/679 and Article 35 of Law no. 78-17 of January 6, 1978. Consequently, the Service Provider undertakes (i) not to process the Customer's data other than in accordance with the terms of the Agreement and (ii) not to carry out any other processing of the Customer's personal data that is not provided for in the Agreement, unless instructed to do so in writing by the Customer.

The Service Provider reserves the right to refuse any instructions from the Customer which it considers unlawful within the meaning of Articles 82.2 and 82.3 of EU Regulation 2016/679. A written and documented refusal by the Service Provider in such circumstances shall not entitle the Customer to terminate the Agreement, unless the Customer incurs liability towards the Service Provider.

Security and confidentiality of personal data

The Provider technically processes Customer data only to render the Service, to the exclusion of any other use, for the benefit of the Provider or third parties. In compliance with the GDPR, personal data is stored and processed by the Provider (and its subcontractor) on servers located exclusively within the territory of the European Union and is not subject to any transfer outside the European Union.

The Service Provider undertakes, on a best-efforts basis, to ensure the security and confidentiality of the Customer's personal data, in particular to prevent it from being distorted, damaged or communicated to unauthorized third parties. Details of the technical measures taken to ensure the security and confidentiality of the Customer's data are given in the article 'Maintenance - Assistance/Support - Hosting'. The Service Provider undertakes to ensure the strictest confidentiality and security in the processing and storage of the Customer's personal data, and to ensure that any technical service provider entrusted with the implementation of the Service, in particular the Hosting Company acting as a subcontractor of the Service Provider, complies with the strictest confidentiality and security in the processing and storage of the Customer's personal data, in accordance with the rules of the art and according to a best-efforts obligation.

In accordance with art.33.2 of EU Regulation 2016/679, the Service Provider undertakes to inform the Customer without delay of any 'breach' of personal data (unauthorized access, unauthorized copying, corruption of personal data files, etc.) of which it becomes aware, on the Customer's responsibility to inform (i) the supervisory authority on which it depends, and (ii) when this breach 'is likely to give rise to a high risk to rights and freedoms', the persons concerned.

 

 

15. Right to use customer data

 

The Customer grants the Service Provider a right to use the non-personal data (data concerning building projects, etc.) that it enters on the Platform. This gracious authorization will remain in force even after the Contract has come to an end between the Parties.

Customer data may be used anonymously by the Service Provider, in particular for datamining, benchmarking, etc.

 

 

16. Liability

 

The Service Provider is liable for direct and foreseeable damage caused by partial or total failure to perform the Service, as proven by the Customer. The Service Provider is in no way liable for indirect or unforeseeable damage caused by a partial or total failure to perform the Service, in particular loss of sales, loss of clientele or any other indirect damage.

The Service Provider is under no circumstances liable for damage caused by the Customer himself, by a third party or by force majeure.

In any event, the total amount of the Service Provider's pecuniary liability is limited to the amount of the Royalties paid by the Customer in respect of the last twenty-four (24) months of actual use of the Service paid by the Customer, except in the event of (i) personal injury, (ii) gross negligence or wilful misconduct or fraud on the part of the Service Provider.

 

 

17. Termination

 

Termination of contract

The Contract shall automatically terminate if either party fails to remedy any breach of any of its essential or substantial contractual obligations within thirty (30) days of notice by the other party of its obligation to remedy such breach remaining ineffective.

 

Consequences of termination

On the effective date of termination of the Contract for any reason whatsoever, the Customer undertakes to cease using the Service immediately and the Service Provider shall then be entitled to interrupt the Service to the Customer and its Users without formality.

If the Contract is terminated as a result of the Customer's fault, the Customer will not be entitled to any refund.

If the Contract is terminated due to the Provider's fault, the Customer will be reimbursed pro rata for the remaining duration of the Contract.

 

 

18. Maintenance - Assistance/Support - Hosting

 

Assistance / support in using the Service

The Service Provider shall provide assistance (support) relating to the use of the Service in the French language, by electronic mail for the benefit of the Administrator only, at the times defined below. The cost of this service is included in the Fee.

By express agreement between the Parties, the Service Provider cannot guarantee that the Platform will operate without error. The Parties acknowledge that the state of the art does not allow the Service Provider to guarantee that the Service Provider will be able to correct all possible anomalies that may affect the Platform. In accordance with article 1133 of the French Civil Code, by signing the Contract, the Customer expressly acknowledges that he accepts this risk, which is inherent in the development and operation of the Platforms. Anomalies that are neither blocking nor major will not necessarily give rise to repair.

Notification is taken into account if it is made between 2pm and 5pm on working days (i.e. excluding weekends and public holidays).

In the event of a bug, the Customer undertakes to describe it as precisely as possible and to indicate to the Service Provider the user path taken by the Customer which led to the bug.

Once the aforementioned alert has been received, the Service Provider diagnoses the Anomalies reported by the Customer and makes its best efforts to provide corrections or workarounds either by telephone or written instructions (by e-mail or fax) that it gives to the Customer, or by remote maintenance, according to the procedure it deems most appropriate.

Any malfunction of the Platform due directly or indirectly to an error of use by the Customer or any Third Party, including any User, is expressly excluded from the assistance service.

Any anomalies concerning the Servers are dealt with by Amazon in accordance with Amazon's SLA, which can be sent to the Customer on request.

 

Updates and new versions

Updates and/or new versions of the Platform are supplied to the Customer, installed and put into production on the Platform by the Service Provider, without any intervention by the Customer, at intervals to be determined by the Service Provider. The terms of the Contract, in particular the right of use of the Platform granted to the Customer, apply to any update or new version installed by the Service Provider.

 

 

19. General provisions

 

Privacy

Confidential information includes, but is not limited to, information relating to the Contract and the stipulations contained therein, Customer data processed by the Service, and generally the business plans of the parties and their present and future activities, their personnel and their know-how, whether such information is obtained directly or indirectly from the other party, its employees, subcontractors, agents or service providers. Confidential information is provided "as is", without any warranty, express or implied, as to its accuracy or completeness. Confidential information does not include

• (i) publicly available information without breach of the terms of the Contract by the party disclosing or using it
• (ii) information validly held by one party prior to its disclosure by the other party
• (iii) information validly obtained from a third party authorized to transfer or disclose said information, without breach of any obligation of confidentiality.

Each Party undertakes (i) not to use the confidential information, for any purpose whatsoever, except in performance of the rights and obligations arising from the Contract, (ii) not to disclose the confidential information to anyone, by any means whatsoever, except to those of their employees, service providers or subcontractors to whom such information is necessary for the performance of the Contract, for the entire duration of the Contract and for five (5) years after its termination, whatever the cause thereof.

For the protection of the other party's confidential information, each party undertakes to take the minimum protective measures that it would take to protect its own confidential information, and undertakes to ensure that its employees, service providers and any subcontractors with access to confidential information have signed, prior to any disclosure to them, a confidentiality agreement whose obligations are equivalent to those set out in this article.

Each Party acknowledges that any Party which uses or discloses without authorization any confidential information obtained from the other Party in the course of negotiations shall be liable under the conditions of ordinary law.

 

Force majeure

Neither party may be held liable for failure to perform any of its contractual obligations as a result of force majeure, defined as an event (i) beyond the control of the party suffering it, (ii) which could not reasonably have been foreseen when the Contract was concluded, and (iii) the effects of which cannot be avoided by appropriate measures.

For the duration of the force majeure, if the impediment is temporary, the force majeure event suspends performance of the obligations of the party invoking it, unless the resulting delay justifies termination of the contract (except for the obligation to pay contractual sums due on the date of occurrence of the force majeure event). If the impediment is definitive, the Contract is terminated and the Parties are released from their obligations, subject to notification of such termination by the most diligent of the two Parties. In all cases, the Party affected by the force majeure shall do everything in its power to avoid, eliminate or reduce the causes of the delay, and shall resume performance of its obligations as soon as the event invoked has disappeared.

 

Use of the customer's name as a reference

The Customer expressly authorizes the Service Provider to use the Customer's name/logo/trademarks, in strict compliance with the Customer's graphic charter, solely as a business reference (list of the Service Provider's customer references and public announcements on the Service Provider's professional social networks), to the exclusion of any other use which shall be subject to prior authorization by the Customer.

 

Social obligations and undeclared work

The Service Provider undertakes to comply with Articles L.8222-1 and D.8222-5 of the French Labour Code (compulsory declarations to social security bodies and tax authorities) and certifies on its honour that its services are provided by employees who are regularly employed in accordance with Articles L.1221-10, L.3243-2 and R.3243-1 of the French Labour Code.

 

Autonomy of stipulations

The Contract cancels and replaces all prior oral or written agreements or contracts between the parties concerning the same services. In the event of any provision of the Contract being declared null and void or unwritten by a court decision having the force of res judicata in the main proceedings, the parties agree to attempt to limit, as far as possible, the scope of such nullity so that the other contractual provisions remain in force and the economic balance of the Contract is respected. In such a case, the parties undertake to renegotiate in good faith the drafting of a new clause to replace the clause thus declared null and void.

 

Assignment of the Contract

The Agreement may not be transferred, in whole or in part, whether free of charge or in return for payment, by the Customer except with (i) the prior written consent of the Service Provider, or (ii) the transfer of the Agreement by the Customer to a company controlled by or under the control of the Customer within the meaning of Article L.233-3 of the French Commercial Code, subject to written notification to the Service Provider of such transfer, which shall constitute an unconditional undertaking by the successor to assume all the rights and obligations of the Customer with respect to the Service Provider. The Customer shall remain jointly and severally liable with the successor for full compliance with the successor's rights and obligations towards the Service Provider.

 

Notification and computation of time limits

Any notification (formal notice, report, approval or consent) required or necessary in the Contract Platform must be made in writing by e-mail or post. Unless otherwise specified in an article of the Contract, deadlines are counted by calendar day, a week counting six (6) working days and five (5) business days. Any time limit counted from a notification runs from the first attempt to deliver it to the addressee, with the postmark as proof, as well as the receipt from the express courier service and the handwritten date on the hand-delivered letter. If an action is to be taken or a notification is to be made on a particular date or deadline and this date is not a working day, the action or notification in question may be postponed until the next working day.

 

Convention on proof

The Customer's 'click' to accept these terms and conditions, as well as to register and pay, constitutes acceptance of the Contract.

The computerized registers stored in the Service Provider's computer systems will be kept in reasonable conditions of security and will be considered as proof of communications, orders and payments between the Parties.

Orders and invoices are archived on a reliable and durable medium that can be produced as proof and to which the Customer has access via his account.

In express derogation of the provisions of article L.110-3 of the French Commercial Code, the parties acknowledge that any modification of the Contract may only be agreed in a written amendment, possibly in electronic form, signed by a duly empowered representative of each of the parties (empowered by the articles of association or by special power of attorney) (an 'Amendment').

 

 

20. Applicable law and jurisdiction

 

The Contract is governed by French law, in terms of both form and substance. In the event that the Contract is translated into a foreign language, only the French version of the Contract will be deemed authentic between the parties. IN THE EVENT OF FAILURE TO REACH AN AGREEMENT BETWEEN THE PARTIES ON ANY DISPUTE RELATING TO THE INTERPRETATION, PERFORMANCE OR TERMINATION OF THIS AGREEMENT, JURISDICTION IS EXPRESSLY GIVEN TO THE COMMERCIAL COURT OF LYON, EVEN FOR REFERENDUM PROCEEDINGS, except in the case of material or territorial jurisdiction which cannot be waived by contract.

The parties undertake to attempt conciliation before any recourse to the courts.