Terms and Conditions
Last edit: 15/02/2024
The following Terms and Conditions are provided by Mindflow SAS, a simplified joint-stock (SAS) company with a share capital of €1.000, which head office is located at 128 rue de la Boétie, 75008 Paris, France, registered under the number B 893 124 511 with the Registre du commerce et des sociétés of Paris, and the intracommunautary VAT number that is FR66893124511, hereinafter referred to as “Mindflow” or the “COMPANY.”
These Terms and Conditions are a representation of the standard Terms and Conditions (T&Cs) imposed by Mindflow on the use of its services provided by Mindflow to its CUSTOMERS as of the last update date available below at the bottom of the page.
To this end, these T&Cs shall yield to those which will be imposed within the contracts concluded between Mindflow and its customers.
Shall you have any question reading this document, you can contact us at legal@mindflow.io.
1. Interpretation
Definitions
Title or fully capitalized terms shall have the meaning designated to them in the paragraph in which it is written between quotation marks. The following capitalized terms, whether in the singular or the plural, shall have the meaning assigned below:
Affiliate: any company that Controls, is Controlled by or is under common Control with a signatory of the Terms and Conditions (T&Cs).
T&Cs: the mutually agreed and legally binding present document, joined Order Form(s), and their appendices, as possibly amended from time to time by mutual agreement of the Parties.
Applicable Data Protection Legislation: any data protection regulation that may apply in the context of the T&Cs, including, where applicable, (i) the Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“GDPR”) and the laws and regulations adopted to implement the GDPR and (ii) any other laws or regulations relating to the Processing of Personal Data.
Bridge letter: A letter acknowledging that controls that were audited by a third party during the COMPANY ‘s security audits are still in place without substantial changes.
Business Day: a day other than a Saturday, Sunday, or national French holiday, or any other French working day.
Confidential Information: any information of a non-public, confidential or proprietary nature, whether of commercial, financial or technical nature, which is related to the CUSTOMER, the COMPANY, Platform or otherwise, and which is disclosed orally or by way of any medium by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”).
Content: workflows and steps that compose them, as well as any logic or conditions used to link steps or any other creation using the Services. Steps are non configured API Calls created by all means and the overall Flows resulting from these steps agencement. Content cannot function without being configured with Data.
CUSTOMER Data: all data and information relating to the CUSTOMER, and their operations, facilities, customers, CUSTOMERs, personnel, assets and programs, in whatever form that information may exist and whether entered into, stored, generated, collected, transmitted, retrieved, hosted, printed, processed or produced by or as part of any of the Services.
CUSTOMER Personal Data: any Personal Data (including those related to the employees, Customers and/or suppliers of the CUSTOMER or any of its Affiliates) for which the COMPANY carries out a Processing under the T&Cs.
Data: the information being processed and ingested throughout the workflows, such as the input data used for each API call, any data generated or modified by the workflows, and any sensitive or personally identifiable information (PII) that may be included in the data. It also includes any configuration data needed to run the workflows, such as API credentials or other authentication information.
Order: the contractual commitment between the CUSTOMER and the COMPANY for the performance of Services through an T&Cs.
Order Form: contractual document or electronic form, signed, accepted or submitted by the CUSTOMER, specifying the terms and conditions of the purchase order for the Services, including type and quantity of Services ordered, price or fees, delivery date, and payment terms between the CUSTOMER and the COMPANY for the performance of Services.
Platform : the web application on which the Service Provider provides its Services described in Appendix.
Services: the Platform, and the associated and ancillary services and support, as further described in Appendix and/or in the Order Form.
Subscription plan : commercial plan(s) of the COMPANY available to the CUSTOMER to subscribe to the COMPANY’s Services.
Subcontractor/Subprocessor: a member of the COMPANY’s direct or indirect sub-tier supply chain that provides goods and/or services in connection with the performance of the Services.
Users: all individuals who are designated by the CUSTOMER, whether or not they are employees of the CUSTOMER.
Workflows: a collection of Steps interconnected by an automation logic: sequential calls, conditional linkages, and iterative calls, through which a process transitions from an initial status to completion.
Interpretation
For purposes of interpretation: (i) the words includes or including shall be construed as meaning “including or includes without limitation” (i.e. the list is not exhaustive); and, (ii) Article headings and captions are for convenience only.
2. Purpose of the T&Cs
The purpose of the T&Cs is to provide the general terms and conditions of governing the applicable commitments for the Services.
The T&Cs define the terms and conditions under which
the CUSTOMER shall:
commit to the Order of a full Subscription Plan for access to the Services, as determined in the order form and pertaining to the term and conditions laid out in this document.
the COMPANY shall:
provide the CUSTOMER and the Users with access to the Platform during the Subscription Term;
grant the CUSTOMER and its Users a worldwide, non-exclusive right to access and use the Platform in accordance with the T&Cs;
perform and provide the Services in accordance with the T&Cs and the service levels settled in the T&Cs.
3. T&Cs – Contractual documents — Order of precedence
A binding agreement is created upon the COMPANY’s acceptance of an Order Form as per Article 4 [Ordering Procedure]. The Parties to the T&Cs are the CUSTOMER having placed the Order Form and the COMPANY having accepted the Order Form.
In the event of any conflict or inconsistency between these T&Cs and an Order Form(s), the Order Form(s) shall prevail. In the event of any conflict or inconsistency between this document and any attached appendice(s), these T&Cs shall prevail. In the event of any conflict or inconsistency between the appendices, they shall take precedence in the following order: Order form, SLA, DPA, Security Notice, Privacy Notice.
4. Ordering procedure
The COMPANY shall only accept Order Form(s) which comply with the T&Cs and its appendices.
5. Fees – invoicing – payment terms
Fees
The fees of the subscription to the Services are set forth in the Order form.
It is mutually agreed between the Parties that the plan prices will be fixed and can’t be subject to any change for the initial term of the T&Cs.
Invoicing
Invoicing and payment terms are specified in the Order form.
Any Subscription Period started is due in full. Invoices are addressed to the CUSTOMER address stated in the Order Form(s).
Payment terms
The CUSTOMER shall pay all invoices within 30 (thirty) days of the invoice receipt date. Payments are ought to be made by wire transfer at the designated banking address in the T&Cs.
Default or Delay in payments
In the event of default or delay in payment by the CUSTOMER, the CUSTOMER is considered in default the next business day after the due date following the invoice receipt. This automatically declares all undisputed sums owed by the CUSTOMER due to the COMPANY to be in arrears and immediately payable. The COMPANY reserves its right to:
Suspend the Services until full payment of the amounts due;
Reclaim an interest on arrears equal to 3 (three) times the legal interest rate, based on the amount of the sums not paid on the due date and a fixed indemnity of 40 (forty) euros for collection costs, without prejudice to additional compensation if the collection costs actually incurred exceed this amount.
6. Right to access and use
The COMPANY grants to the CUSTOMER and its authorized Users, during the term of the T&Cs, a right to remotely access and use the COMPANY Platform services listed in the relevant Order Form (“Service”) in accordance with this T&Cs.
7. Provision of the service — Support
The COMPANY shall provide the Services and support in accordance with this T&Cs and the applicable service level agreement attached in Appendix.
8. Security measures and audit
The COMPANY implements appropriate technical and organizational measures, internal controls, and information security routines to maintain a sufficient level of security with regard to the applicable laws and regulations. These measures, controls, and information security routines may be subject to changes during the T&Cs. Substantial changes will be notified to the CUSTOMER.
At the CUSTOMER’s request, the COMPANY shall provide information about its compliance to the CUSTOMER, including the audits reports, summaries of the penetration tests performed, remediation plans, and eventual re-tests, and Bridge Letter them being regarded as confidential information.
In the case where the CUSTOMER requires more information, the CUSTOMER shall make a motivated request to the COMPANY where they formulate their questions. The two Parties shall work in good faith for the COMPANY to answer with best efforts to the CUSTOMERs demands.
In cases where the COMPANY determines that an incident substantially affects the service subject to the T&Cs, the COMPANY may notify the CUSTOMER of the nature of the incident, as well as the necessary details for its understanding and the risks that result from it, along with the measures implemented to contain and remedy it, as well as to prevent its recurrence in the future.
9. Additional features and services
The Parties may agree to include additional features and services (“Add-On Service”). The T&Cs will apply for such add-on services which will be subject to a quotation sent by the COMPANY to the CUSTOMER. Specific terms may apply for the individual add-on service that will be provided by the COMPANY.
Modifications and improvements
The COMPANY may from time to time make improvements, add, modify, or remove functionality, or correct any errors or defects in the Service as further described in the Service Level Agreement.
Acceptable use
Quality of the Services
The COMPANY undertakes to provide the Services with due diligence, it being understood that the COMPANY is bound by a provision of means, excluding any obligation to achieve a result, which the CUSTOMER expressly acknowledges and accepts.
The COMPANY makes its best efforts to provide the CUSTOMER its Services. For this purpose, the COMPANY carries out regular checks to verify the functioning and accessibility of the Platform and may carry out scheduled maintenance under the conditions specified in the Service Level Agreement defined in the Appendix. The COMPANY reserves the right to limit or suspend access to the Platform in order to carry out any maintenance operation.
However, the COMPANY is not responsible for any difficulties or temporary impossibility of access to the Platform and due to (including but not limited to):
circumstances outside of its network;
the failure of equipment, cabling, services or networks not included in the Services or which are not under its responsibility;
interruption of the Services by telecom operators or internet service providers;
the CUSTOMER’s own acts, errors, or omissions;
force majeure.
Users
The Service(s) is made available for use by the Users.
The CUSTOMER shall remain the contracting party and remain responsible for all Users compliance under the T&Cs.
The CUSTOMER shall only use the Service for internal business purposes and not resell, distribute, sublicense, or otherwise transfer any right in and to the Service to others, including allowing user rights to third parties not specifically granted rights under the T&Cs.
Use of the Services
The CUSTOMER is responsible for its own use of the Services and any information that it may share in connection therewith. The CUSTOMER agrees that the Services will be used exclusively by itself and/or authorized Users, who are subject to the same obligations as the CUSTOMER in their use of the Services.
The CUSTOMER undertakes to comply with the applicable laws when using the Services.
The CUSTOMER shall use the Services in accordance with its intended purpose and shall not (including but not limited to):
modify, translate, reverse engineer, decompile or disassemble any of the Service or otherwise attempt to derive source code or create derivative works from the platform and the Service,
copy, modify or misappropriate any of the COMPANY’s property or concepts used by the COMPANY in connection with the Services,
adopt any conduct that interferes with or hijacks the COMPANY’s computer systems or breaches its computer security measures,
infringe the COMPANY’s financial, commercial or moral rights and interests,
give any third party (other than Users) access to the Platform for any reason whatsoever,
market, transfer or otherwise provide access to the Services, the information hosted on the Platform or any of the COMPANY’s property.
Misuse of the Services
The CUSTOMER and its authorized Users shall use the Services only for internal purposes. In any case, the CUSTOMER shall not misuse the Services for purposes other than those for which they were designed, and in particular for (including but not limited to):
practice illegal or fraudulent activity,
harm public order and morality,
infringe on third parties or their rights,
violate any contractual provision,
violate any legal, jurisprudential, or regulatory provision,
carrying out any activity that may interfere with a third party’s computer system, in particular for the purpose of violating its integrity or security,
carry out any operation aimed at promoting its services and/or sites or those of a third party,
assist or incite a third party to commit one or more of the acts or activities listed above,
use the Services in a manner that impacts the availability, performance, reliability, or stability of the Services.
The Parties expressly agree the COMPANY shall not be held liable for any misuse of the Services stipulated in this Article 11.4 [Misuse of the Services].
In the event that the CUSTOMER is required to appear before a Court due to actions during the use of the Services specified in this Article 11.4 [Misuse of the Services], the COMPANY shall not be held liable, in whole or in part, and shall not bear any costs or expenses ordered by the court.
Accounts
Once the CUSTOMER signs the Order Form, the COMPANY shall open an account on behalf of the CUSTOMER to access the Platform (the “CUSTOMER Account”).
Log-in details
The CUSTOMER is solely responsible for maintaining the confidentiality of Users’ connection identifiers and/or passwords. The CUSTOMER undertakes to ensure that Users do not allow any third party to use them in their place or on their behalf, unless they bear full responsibility for doing so.
In any case, shall the CUSTOMER discover any unauthorized use of any connection identifiers, passwords, User account(s), and/or any other breach of security, it shall promptly notify the COMPANY. The CUSTOMER recognizes and accepts that the COMPANY shall have the right to take any appropriate action in such a case.
Fair use of the Services
The COMPANY has a fair use policy in relation to accessing and using the Services. For the purpose of this fair use policy, The CUSTOMER may not vary from the average in a disproportionate manner, measured at 10 000 executions per day. In such an event, the COMPANY is entitled to temporarily limit or restrict access to the Services and/or require the CUSTOMER to purchase additional Services.
Payment for unauthorized use
The COMPANY may investigate logs to verify that the CUSTOMER complies with the acceptable use requirements above. The CUSTOMER shall upon request from the COMPANY reasonably cooperate to clarify compliance. The COMPANY reserves the right to charge the CUSTOMER appropriate usage fees in line with the price for the feature in question in case of repeated or intentional breach of the acceptable use requirements.
APIs and Integrations
The Service may, depending on the CUSTOMER’s subscription plan, contain features designed to integrate with third party applications. The COMPANY is dependent on third parties for such integrations to work and can therefore not guarantee the continued availability of such features nor the quality of its service. In any case, the COMPANY shall not be held liable for any disruption in the availability of an integrated service nor the quality of the said service.
12. Customer responsabilities and obligations
The CUSTOMER must provide to the COMPANY with all information necessary to subscribe to and use the Services.
The CUSTOMER guarantees that the information provided to the COMPANY is accurate and undertakes to keep it up to date. The CUSTOMER is responsible for maintaining the confidentiality and security of their Users’ login and password as stated in the Article 11.6 [Log-in details] and accepts that the COMPANY is entitled to take any appropriate action to remedy any breach Article 11.6 [Log-in details].
It is the responsibility of the CUSTOMER to ensure that the following conditions are met and that it does so with no cost to the COMPANY.
specify to the COMPANY the selected users with access to the Platform and to designate, among them, the one or ones who will oversee its administration (the “Administrators,” together referred to as the “Users“).
have an internet connection with adequate bandwidth to ensure proper implementation and quality of the service.
report all incidents or issues to the support service provided by the COMPANY, as described in the Service Level Agreement in Appendix.
use anti-virus software with definitions updated daily at a minimum.
make every effort to be available to the COMPANY to resolve a platform-related incident or a request.
13. Customer data
Ownership of CUSTOMER Data
The CUSTOMER Data is and shall remain the exclusive property of the CUSTOMER and the CUSTOMER has sole responsibility for the content of and the right to use the CUSTOMER Data. The CUSTOMER is solely responsible for the Content of any kind that it posts as part of the Services.
Rights to use CUSTOMER Data.
The CUSTOMER hereby grants to the COMPANY, during the term of this T&Cs, a limited right to access and use such the CUSTOMER Data that are necessary for the COMPANY to provide the Services. The COMPANY will use the CUSTOMER Data only as necessary to provide the Services to the CUSTOMER.
No sales of data
The COMPANY will not sell, rent, or lease the CUSTOMER Data to any third party or otherwise receive any value in exchange for the CUSTOMER Data.
Processing of customer personal data
Processing where the COMPANY is acting as a data controller
The COMPANY undertakes to comply with all legal and regulatory obligations with regards personal data protection, in particular with Applicable Data Protection Legislation.
Processing where the COMPANY is acting as a data processor
In order to perform the T&Cs, the COMPANY may be required to process CUSTOMER Personal Data under the CUSTOMER’s written instructions. The details of the conditions under which the COMPANY processes CUSTOMER Personal Data are set forth in Appendix.
Subcontracting
The COMPANY may use Subcontractors in the provision of the Services. The COMPANY shall only be held liable for the acts and omissions of its subcontractors and any other affiliates.
Intellectual Property rights
Ownership
The T&Cs do not constitute any transfer of ownership of any intellectual property rights.
The COMPANY owns and shall always retain all intellectual property right, title, and interest, inherent in or relating to the Platform Services, the softwares, infrastructures, databases, workflows and Content of any kind (including but not limited to : texts, images, visuals, music, logos, brands, flows etc.). The Parties may use their respective names, brands and logos and refer to their respective platforms as commercial references for the duration of their contractual relationship and 3 (three) years thereafter.
Content
By subscribing to the COMPANY’s Services, the CUSTOMER acknowledges that the content of any kind deriving from the use of the Platform (the “Content”) is the property of the COMPANY and may be broadcasted in a spirit of community exchange.
Therefore, the CUSTOMER agrees that the COMPANY may:
broadcast the Content free of charge on the Platform and on any websites, published by any companies with which the COMPANY have agreements, by any means and on any medium, for the purpose of promoting the Platform,
translate the Content into any language,
modify (in particular the framing, format and colors) and/or adapt the Content.
If the COMPANY receives any notification of unlawful Content, the COMPANY will act promptly to remove it or make it unavailable, and the COMPANY may take the steps described in the Article 18.6 [Termination for breach].
Testimonials
The CUSTOMER may also make testimonials regarding its use of the Services.
Therefore, the CUSTOMER agrees that the COMPANY may:
broadcast the testimonials free of charge on the Platform and on any websites, published by any companies with which the COMPANY have agreements, by any means and on any medium, for the purpose of promoting the Platform,
translate the testimonials into any language,
modify (in particular the framing, format and colors) and/or the testimonies.
Data
The CUSTOMER retains the sole property of the Data it processes on the Platform. The COMPANY is acting as a sub-processor for the Data processed on the Platform and hereby cannot be held responsible for such Data should they be collected, processed, stored, erased, altered, modified, in an irregular or unlawful way by the CUSTOMER.
Submissions
At its option, the CUSTOMER may provide Submissions (any questions, comments, suggestions, ideas, feedback, or other information regarding the Services). If the CUSTOMER provides Submissions then the COMPANY may use these Submissions without restriction and without obligation to the CUSTOMER.
17. Confidentiality
Non-use and Non-disclosure
Neither party shall use or disclose any Confidential Information of the other Party for any purpose except in relation to its performance under the T&Cs. Each Party shall use its best efforts to mark “confidential” all Confidential Information disclosed in writing. Failure to do so will not affect the confidential nature of the information and the Parties obligations to protect such information.
Disclosure to employees
A receiving Party shall only disclose the disclosing Party’s Confidential Information to its directors, officers and employees on a need-to-know basis. Prior to such disclosure, the receiving Party shall inform each such person of the confidential nature of the Confidential Information. Notwithstanding due observance of this obligation, the receiving Party shall be liable for any breach of the provisions on confidentiality under the T&Cs by such persons.
General limitations
The receiving Party shall not use the Confidential Information of the disclosing Party for purposes other than in direct relation with the T&Cs. The receiving Party shall treat the Disclosing Party’s Confidential Information with at least the same degree of care as it would use in respect of its own Confidential Information of similar importance, but in any event shall use a reasonable level of care. The receiving Party shall not disclose, disseminate or make accessible any part of the disclosing Party’s Confidential Information, in any way or form, to any third party.
Limitations on the duty of non-disclosure
Confidential Information does not include any information or material that (i) is or becomes publicly known other than through violation of the T&Cs by the receiving party, (ii) was already in the receiving party’s possession or was available to the receiving party on a non-confidential basis before disclosure, (iii) is obtained by the receiving party from a third party that is not bound to separate confidentiality obligations to the other party, (iv) was later communicated by a third party to the receiving party without any confidentiality obligation, or (v) is independently developed by the receiving party without use of or reference to the discloser’s Confidential Information.
Disclosures required by Law
The Recipient may disclose Confidential Information to the extent required by law, provided that the receiving Party gives the disclosing Party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure.
Return or Destroy
Upon the request of either disclosing Party, the receiving Party shall without delay, at disclosing Party’s choice, (i) return all their copies, samples and extracts of, and all other physical media containing the disclosing Party’s Confidential Information, and/or (ii) delete or destroy (and have deleted or destroyed) all automated data containing the disclosing Party’s Confidential Information. Upon request by the disclosing Party, the deceiving Party shall confirm in writing its compliance with these requests.
Survival and remedies
The obligations of each Receiving Party under this Article 17 [Confidentiality] shall survive for 5 (five) years after the termination of the T&Cs. Each party agrees that any violation or threatened violation of this section may cause irreparable injury to the Disclosing party, entitling the Disclosing party to seek injunctive relief in addition to all legal remedies.
Term and termination
Subscription initial term
Otherwise expressly stipulated by the Parties in the T&Cs, the Subscription shall come into force on the date stipulated in the Order Form and shall continue for the period set forth in the applicable Order Form or for 3 (three) years if no such period is specified.
Renewal Term
The Subscription will upon expiration of the initial Subscription Term set out in the Article 18.2 [Subscription Initial Term] automatically renew for a subscription term equivalent in the length to the then expiring subscription term, unless otherwise set out in the Order Form (“Renewal Term”), it being specified that the COMPANY may modify the prices applicable to each renewal by notifying the CUSTOMER at least 1 (one) month in advance, with a possibility for the latter not to proceed with the renewal.
Termination for convenience
The renewed subscription contract may be terminated at the end of any initial or renewed Term by the CUSTOMER by registered letter with acknowledgment of receipt subject to compliance with a Notice period of 3 (three) months prior to the expiration of the then-current term, otherwise stipulated in the Order form. If the CUSTOMER provides notice of non-renewal within the time limits set out in this Article 18.3 [Termination for convenience], the COMPANY will not invoice the CUSTOMER for a Renewal Term.
Multi-year term agreement Termination
When based of a multi-year term, and if the Subscription is terminated by the CUSTOMER in accordance with Article 18.4 [Termination for convenience] before the end of the multi-year term, any granted discounts provided by the COMPANY to the CUSTOMER on the basis of a multi-year term shall become immediately due and payable to the COMPANY by the CUSTOMER in the payment conditions set out in the relevant Order Form.
Termination for breach
Either Party may terminate the Subscription for breach by 15 (fifteen) calendar days prior registered letter with acknowledgment of receipt subject to compliance if the other Party has materially breached its obligations hereunder and have failed to cure such breach within 15 (fifteen) calendar days’ after being notified in by registered letter with acknowledgment of receipt subject to compliance of the details of such breach.
Either party may terminate this Subscription with immediate effect if the other party takes or suffers any action for insolvency in any jurisdiction.
Refund policy
All fees paid by the CUSTOMER are non-refundable. The CUSTOMER will not be entitled to any refunds if the CUSTOMER wishes to terminate the Subscription prior to the end of the then current subscription term.
Effect upon Termination
Upon expiration or termination of this Subscription for any reason (i) all access rights will cease, (ii) either Party shall delete or destroy all Confidential Information of the other party (Confidential Information included in backup copies will first be deleted upon expiration of such encrypted backup copies), and (iii) any and all invoiced and non-invoiced undisputed fees owed by the CUSTOMER to the COMPANY under the T&Cs shall become immediately due and payable to the COMPANY.
Representations and warranties
Each Party represents and warrants that the representing party has full power and authority to execute, deliver and perform the T&Cs, that the T&Cs has been duly and validly executed and delivered by the representing party and that it constitutes the legal, valid, and binding obligation of the representing party, enforceable against it in accordance with its terms.
20. Disclaimers
The Services are provided “as is”. Without warranty of any kind, express or implied. The COMPANY does not warrant that the CUSTOMER’s use of the Service will be uninterrupted or error-free. The CUSTOMER assumes the risk of the use, quality, performance, accuracy and completeness of any data produced by the service.
Except as expressly provided in the T&Cs, either party disclaims any and all warranties, express, implied, or statutory, relating in any way to the Service.
Limitations on liability
EXCLUSION OF INDIRECT, CONSEQUENTIAL, AND RELATED DAMAGES
In no event shall the company be liable for lost profits, business interruption, goodwill or special, indirect, incidental, consequential damages of any kind, even if advised in advance of the possibility thereof.
LIMITATION OF TOTAL LIABILITY
IN NO EVENT OR LIABILITY SHALL THE AGGREGATE LIABILITY (ALL FAULTS & DAMAGES AGGREGATED) OF THE COMPANY RELATED TO THE T&Cs (INCLUDING THE SERVICE LEVEL AGREEMENT AND THE DATA PROCESSING AGREEMENT) EXCEED THE AMOUNT OF FEES RECEIVED BY THE COMPANY DURING THE TWELVE (12) CALENDAR MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
ANY PROCEDURE AGAINST THE COMPANY MUST BE STARTED WITHIN TWELVE (12) CALENDAR MONTHS FOLLOWING THE DAMAGE CONCERNED.
Temporary suspension of services
The COMPANY may temporarily suspend the Service if the CUSTOMER is in breach of the T&Cs and such breach is not cured within thirty (30) calendar days after the CUSTOMER’s receipt of Notice thereof. Suspension will last until the breach has been cured by the CUSTOMER.
Indemnification
By the COMPANY
The COMPANY shall defend, indemnify and hold harmless the CUSTOMER from and against any losses, costs, expenses (including reasonable outside attorneys’ fees and costs) and finally awarded damages against the CUSTOMER resulting from a final judicial decision brought against the CUSTOMER by a third-party alleging that the Service used in accordance with the T&Cs infringes a valid intellectual property right of such third-party within the limit mentioned in the T&Cs.
By the CUSTOMER
The CUSTOMER shall defend, indemnify and hold harmless the COMPANY and its officers, directors, employees, and agents, from and against any losses, costs, expenses (including reasonable outside attorneys’ fees and costs) and finally awarded damages against the COMPANY resulting from a substantiated claim, demand, suit, action or proceeding brought against the COMPANY by a third party alleging that any CUSTOMER Data, or the use of the Services in combination with a non-company application provided by the CUSTOMER, infringes a valid intellectual property right of such third party in the jurisdictions the CUSTOMER use or access the Service.
Process
To receive the foregoing indemnifications the indemnified party must give the indemnifying party prompt written notice of the claim, give indemnifying party sole control of the defense and settlement of the claim (except that indemnifying party may not settle any claim unless it unconditionally releases indemnified party of all liability), and give indemnifying party all reasonable assistance at indemnifying party’s expense.
The COMPANY remedies
If the COMPANY receives information about an infringement claim, the COMPANY may at its sole discretion either (i) obtain a license for CUSTOMER’s continued use of the applicable part of the Service in accordance with the T&Cs, or (ii) replace or modify the applicable part of the Services so that it is no longer claimed to infringe a third party right. If the COMPANY reasonably determines that the foregoing options are not commercially available, the COMPANY may terminate the CUSTOMER subscription for relevant part of the Services.
Sole remedies
The rights granted under this Section shall be the indemnified party’s sole and exclusive remedy for any alleged infringement covered by this section.
Specific provisions
In cases where the COMPANY provides its Services to a CUSTOMER who would use the Services in the context of the provision of a Managed Security Services offering, the following conditions apply:
The CUSTOMER must provide, on a quarterly basis, an audit of the Services usage in order to justify compliance with the Services provided as described in Annex 2 [Description of Services].
The COMPANY reserves the right to request, by Notice, any additional information from the CUSTOMER to justify the audit results reported by the CUSTOMER. In such cases, the CUSTOMER must respond to the request within a period of 15 (fifteen) days following the receipt of the Notice.
In cases where the CUSTOMER fails to do so, the COMPANY reserves the right to suspend the Services. The COMPANY, following a Notice of breach of this obligation, has a period, the length of which is at its discretion, before suspending the Services.
Miscellaneous provisions
Compliance
The COMPANY provides a standard service that can be accessed via a web interface. The COMPANY shall provide the Services in accordance with those laws in the country the COMPANY is registered that are applicable to the COMPANY’s provision of its Services in general without regard for CUSTOMER’s particular use of the Services. The CUSTOMER is responsible for its own use of the Services, all activities that occur under User’s account, and that such use is compliant with legal requirements applicable for their business and any local laws that may impact its right to import, export or use the Services.
The CUSTOMER shall not be located in, and will not use any Services from, any country subject to U.S. EAR or OFAC restrictions.
Assignment
The T&Cs may not be assigned by either party without the prior written consent of the non-assigning party. Consent is not required in the context of merger, acquisition, or sale of all or substantially all the assigning party’s stock or assets, provided that the assigning party provides advance written notice thereof to the non-assigning party. Subject to the foregoing, the T&Cs shall inure to the benefit of and be binding upon the parties’ respective permitted successors and assigns.
Force Majeure
In accordance with the provisions of article 1218 of the French Civil Code, no Party may be held liable for a failure to perform its contractual obligations if this failure is due to an event beyond the control of the Parties and constitutes force majeure. The force majeure’s interpretation shall be the one retained by the French Court of Cassation.
Entire Agreement
The T&Cs constitutes the entire agreement between the parties and supersedes all other agreements, proposals, or representations, whether electronic, written, or oral, between the parties concerning its subject matter.
Severability
If any provision of this T&Cs is held to be ineffective, unenforceable, or illegal for any reason, such decision shall not affect the validity or enforceability of any of the remaining portions thereof.
Amendment
Amendment or modification of the T&Cs shall only be valid or binding upon the parties if made in writing and signed by a legal representative of each Party.
Notices
All notices and other communications required or permitted by the T&Cs or by law shall be in writing by e-mail or mail and shall be considered delivered when received if delivered by mail or similar and at the opening of business on the next Business Day for the recipient if sent by electronic mail.
Survival of Certain Provisions
Expiration or termination of the T&Cs will not relieve either Party from its obligations arising hereunder prior to such expiration or termination. Rights and obligations which by their nature should survive will remain in effect after termination or expiration of the T&Cs.
Electronic Signatures
It is agreed between the Parties that the T&Cs may be signed by any electronic means, the Parties recognising the reliability of the process, thus giving it the same legal value as a handwritten signature within the meaning of the law.
Language
Regardless of any language into which the T&Cs may be translated, the official, controlling and governing version of this Agreement shall be exclusively the English language version.
Governing Law and legal venue
The T&Cs shall be construed and interpreted in accordance with and governed by French Law without regard to its conflict of law rules.
In the event of a dispute between the Parties concerning its validity, interpretation or execution, the Parties shall endeavor to settle their dispute amicably. In the absence of an amicable agreement within 2 (two) months following the first notification sent by one Party to the other concerning the dispute concerned, the dispute shall be subject to the exclusive jurisdiction of the courts of Paris (France), unless mandatory procedural rules to the contrary exist.