DataMa Software License Agreement

SOFTWARE LICENSE AGREEMENT

 

 

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 20bis rue Louis-Philippe, 92200 Neuilly-Sur-Seine, 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.

The Licensor shall make his best effort to maintain the availability of the Hosted Services to the Customer [at the gateway between the public internet and the network of the hosting services provider for the Hosted Services], but does not guarantee 100% availability.

The Provider shall provide the Maintenance Services in accordance with the standards of skill and care reasonably expected from a service provider in the SaaS industry.

 

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 can not 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 can not 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.

The Licensor guarantees neither the absence of technical problems, nor the compatibility with a particular configuration and / or material and can not be held responsible for malfunctions related to the use of related software. In particular, the Licensor shall not be held liable for errors, whatever the cause, in the results obtained, which it is for the Licensee to verify.

The Licensor can not be held responsible for any prejudice resulting from the malfunction and unavailability of the Software or the accidental destruction of the data recorded in the Software.

In the event of a conviction of the Licensor for any reason whatsoever which is not excluded by this Agreement, it is however agreed that its liability shall be limited by mutual agreement to the price of this license.

 

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.

The Licensor can not in any way be considered as the controller of this personal data.

Moreover, the Licensee is the only one able to determine if the procedures of securing the personal data brought to its knowledge by the Licensor are likely to meet his needs in terms of security, especially with regard to personal data. It is incumbent on it, under its sole responsibility, to determine any additional security measures to be implemented in order to meet its needs and obligations in terms of security.

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.

The Licensee undertakes to respect the proprietary notices appearing on the Software and the detailed list of « open source » packages used by the Licensor in the development of the Software (Appendix 2). The Licensee undertakes in particular to respect the moral rights of the authors of open source packages involved in the Software.

The Licensor warrants that the whole Software is wholly owned and isn’t constituting in whole or in part any infringement or unfair competition.

For its part, the Licensee undertakes to immediately report to the Licensor any infringement of the Software of which it has knowledge, the Licensor being then free to take the measures it deems appropriate.

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, including during the loading, display, performance, transmission or storage of the Software.

The Licensee is prohibited from translating, adapting, arranging or modifying the Software, exporting it, or merging it with other software.

The Licensee is not authorized to make a backup copy of the Software.

 

ARTICLE 13 – CONFIDENTIALITY

In the situation where The Client wanted to sign his own Non-Disclosure Agreement (NDA) with the Licensor. Once signed this new agreement would prevail over the following Article 13 corresponding to the confidentiality agreement.

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 it is would have known about the execution of this Contract.

However, the Licensee authorizes the Licensor to disclose his name for purely commercial purposes of the Software.

As such, the Licensee authorizes the Licensor to use his name, and possibly his trademark and logo for purely promotional purposes.

The Parties recognize that any disclosure by one Party would prejudice the interests of the other Party and incur its liability.

The Parties are in a strong position, within the meaning of Article 1204 of the Civil Code, to ensure that their subcontractors comply with the confidentiality undertaking set out above.

For its part, the Licensee undertakes not to disclose information relating to the know-how of the other party.

This reciprocal commitment will continue for five ( 5 ) calendar years after the expiration of the present, as long as the confidential information and data have not fallen into the public domain.

The Licensor may be aware of the data submitted by the Licensee when the Licensee decides to communicate such data directly to the Software, without passing through its own servers.

If this is the case, the Licensor is bound by an absolute confidentiality obligation on the data transmitted by the Licensee in connection with the use 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 (as this term is defined in article 4.1 of European regulation n° 2016/679) concerning employees and / or managers of the Licensee, in order to allow him to manage the contractual relationship (hereinafter the « Personal Data« ). In this context, the Licensor is required to set up a processing of Personal Data, in compliance with the applicable regulations, the purposes of which are customer management (including management of the contract, orders, delivery, invoices, accounting, monitoring of the contractual relationship), and more generally the management of operations allowing him to communicate with the Licensee.

The processing implemented in this context is based on the legitimate interest of the Licensor, insofar as this processing is necessary for the proper performance of the contractual relationship and for compliance with its legal obligations. Personal Data and the entire file associated with the Licensee will be kept for the duration of the contractual relationship and for the applicable limitation period.

In accordance with the applicable regulations, the Licensee and/ or the employees and managers of the Licensee have a right of access, rectification, erasure of Personal Data concerning them, a right to limit processing, as well as a right of opposition to the processing of Data concerning them. The Licensee and/ or employees of the Licensee also have the right to send the Company special instructions relating to the fate of their Personal Data after their death. To exercise these rights, the Licensee may send a request by mail to the Licensor at the following address: DataMa, 20Bis rue Louis Philippe, 92200 Neuilly-Sur-Seine. Finally, the Licensee and / or the employees of the Licensee can lodge a complaint with the personal data protection authority.

 

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 (as this term is defined in article 4.1 of European regulation n ° 2016/679) concerning the Licensor, the employees and/ or managers of the Licensor in order to allow it to manage the contractual relationship (hereinafter the « Personal Data« ). In this context, the Licensee is required to set up a processing of Personal Data, in compliance with the applicable regulations, the purposes of which are customer management (including contract management, orders, delivery, invoices, accounting, monitoring of the contractual relationship), and more generally the management of operations allowing him to communicate with the Licensor.

The processing implemented in this context is based on the legitimate interest of the Licensee, insofar as this processing is necessary for the proper performance of the contractual relationship and compliance with its legal obligations. Personal Data as well as the entire file associated with the Licensor will be kept for the duration of the contractual relationship and for the applicable limitation period.

In accordance with the applicable regulations, the Licensor and / or the employees and managers of the Licensor have a right of access, rectification, erasure of Personal Data concerning them, a right to limit processing, as well as a right of opposition to the processing of Data concerning them. The Licensor and / or employees of the Licensor also have the right to send the Licensee special directives relating to the fate of their Personal Data after their death. To exercise these rights, the Licensor may send a request by mail to the Licensee. Finally, the Licensor and / or the employees of the Licensor may lodge a complaint with the personal data protection authority.

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.

This faculty is used at the risk and peril of the Party taking the initiative.

The suspension of performance will take effect immediately upon receipt by the alleged defaulting party of the notice of intention to enforce the defective non-performance exception until the alleged defaulting party executes the obligation for which a failure to come is manifest, served by registered letter with acknowledgment of receipt.

If the impediment was final or continued beyond three (3) months, the present ones would be purely and simply resolved according to the modalities defined in the Article Termination for failure of a part to its obligations.

 

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 to it by registered letter with acknowledgment of receipt. The suspension of the obligations can not 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 his obligation by registered letter with acknowledgment of receipt.

During this suspension, the Parties agree that the costs generated by the situation will be borne solely by the party prevented.

If the impediment were final or continued beyond three months, the present contract would be terminated purely and simply in the manner defined in the article entitled  » TERMINATION FOR FORCE MAJEURE « .

 

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 acknowledgement 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,

In addition to the possibility open to each of the Parties not to renew the Contract referred to in Article 3  » ENTRY INTO FORCE – DURATION OF THE CONTRACT  » , the Parties agree that in the event of non-compliance with any of the obligations of this Contract, the Licensor may suspend its services or terminate the present Contract without legal formalities, if passed a period of ten ( 10 ) days after the sending of a letter of formal notice with acknowledgment of receipt mentioning the breach noted, the non-compliance invoked remains.

The suspension or termination of this Agreement does not constitute a waiver by the Licensor of all amounts due to it under this Agreement or any damages that may result.

 

ARTICLE 19 – CESSIBILITY AND SUB-TREATMENT

 

This Agreement is entered into  » personal basis  » with the Licensee , it is expressly agreed that it will not be transferred to third parties by the Licensee for any reason itself does in any form whatsoever, even if transfer of the business, lease-management of a merger or any other restructuring operation without the prior written consent of the Licensor.

The Licensor is expressly authorized to subcontract all or part of its services.

The Licensor is meanwhile free to assign this Agreement.

 

 

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) month 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, can not be a modification of this contract, nor 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.

In the event that the execution of one or more of the clauses of this agreement would be rendered impossible by its cancellation, the Parties will try to get closer to establish a new clause in the spirit and the letter will be as close as possible from the old clause, the other stipulations of the Convention remaining in force.

Failing this, or if the general scheme of the agreement turns out to be fundamentally upset, the Parties may, by mutual agreement formalized in writing, declare the cancellation of this agreement in its entirety.

 

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.

The Licensee therefore undertakes to follow the amicable settlement procedure before entering the courts, this attempt at mediation being a condition of admissibility to the Licensee’s legal action.

Any dispute between the Licensor and the Licensee regarding the formation, performance, interpretation, validity, termination or termination of this Agreement, including for the purposes of the provisional proceedings, emergency procedures in case of summary proceedings of third parties, request or multiple defendants, will be under the jurisdiction of courts of jurisdiction of the Court of appeal of PARIS (France).

 

ARTICLE 24 – ELECTION OF DOMICILE 

 

Any alteration of the registered office or the address of one of the Parties shall not be enforceable against the other party until it has been duly notified.