This Contract for the provision of software as a service (hereinafter the “Contract”) covers the subscription to and the use of online services (hereinafter the “Services”).
This subscription shall be free of charge throughout the duration of the trial defined in article 8-6.
BY ACCEPTING THIS CONTRACT, EITHER BY TICKING A BOX TO INDICATE YOUR ACCEP-TANCE, OR BY SIGNING AN ORDER FORM REFERRING TO THIS CONTRACT, YOU HEREBY AGREE TO BE BOUND BY ALL ITS PROVISIONS.
SHOULD YOU SIGN THIS CONTRACT FOR AND ON BEHALF OF A COMPANY OR ANOTHER LEGAL ENTITY, YOU HEREBY DECLARE THAT YOU ARE DULY EMPOWERED TO BIND THAT ENTITY AND ITS AFFILIATED COMPANIES BY THESE PROVISIONS.
This Contract shall come into force on the date on which the online subscription shall take place.
PREAMBLE
The Service Provider specialises in publishing and distributing Internet-based Management and Development IT solutions, and in particular video presentations solutions such as the MY-CORPTV software.
The Service Provider offers “MYCORPTV” for rental under a SaaS (Software as a Service) ar-rangement as part of the Client’s subscription to the online services offered by SALESFORCE, so that in case of rescission of the contractual relationship with the latter, this Contract shall be rescinded automatically.
The “MYCORPTV” solution is hosted by the Service Provider, by SALESFORCE and by DAILYMO-TION.
The use of “MYCORPTV”, which is accessible at www.mycorptv.com is earmarked to indepen-dent or self-employed professionals, private companies as well as public bodies, wherever their registered headquarters are based, represented by their employees who are duly em-powered to act on their behalf on the web site.
The Contract shall be formed between the parties at the time of the acceptance of these terms and conditions.
ARTICLE 1: SUBJECT-MATTER
This Contract sets out the terms of access and of use of the solution by the Client: access to the servers of Momindum; use of the solution; other services, hosting of Data, maintenance, technical support.
DEFINITIONS
- Solutions: shall mean the operating functions listed in the appendix of the Contract and made available to the Client as part of the Application Services covered by the Contract;
- Data: shall mean any information, publications and, in general, the Data from the Cli-ent Database whose use is covered by this Contract and which may only be accessed by the users;
- Identifiers: shall mean the user ID and the password used to connect to the service and disclosed after registration;
- Internet: shall mean a worldwide set of interconnected networks;
- Intranet: shall mean a computer network inherent to a company or organisation, based on the TCP/IP protocols and the technologies of the Internet in general and which may be connected to the Internet network;
- Software: shall mean any software application provided to the Client by the Service Provider and in particular the related Solutions;
- Application Service: shall mean a service provided in SaaS mode by the Service Pro-vider, enabling the Client to use the Solutions;
- User: shall mean a person who is under the responsibility of the Client (employee, agent, representative, etc.) and who has access to the Application Services on his or her computer by virtue of this Contract.
ARTICLE 2: EFFECT, DURATION
The Contract shall come into force as of the Client’s online subscription to the service via the
www.mycorptv.com web site.
The duration of this Contract as well as the terms of its tacit renewal are set out in the quote that is appended to this Contract.
The Service Provider shall notify the impending expiry of the Contract by any suitable written means at least 3 months prior to its term, as well as the terms of its renewal proposed to the Client. Failing a reply from the Client within 30 days following the notification, the Contract shall be renewed under identical terms and conditions, unless the parties reach a new agree-ment over a new functional scope for the Application Services in order to cover the Client’s requirements.
ARTICLE 3: SCOPE
The functional scope subscribed to by the Client shall comprise: - Use of the enterprise social network “Chatter”.
- Access to MyCorpTV and all content created.
- Hosting of video presentations. Except as specifically noted in the order, the customer can host up to 4 presentations per user. The maximum number of presentations hosted is shared among different users.
- Hosting of data and transactions in the quotas imposed by Salesforce. (See their web-site)
- Each USER with a “MyCorpTV” license is authorized to install and use MyCorpTV Maker software to create video presentations. A license cannot be shared among multiple users.
- Each USER with a “MyCorpTV” license can use the SAAS MyCorpTV Maker Lite solution to create and share online video presentations. A license cannot be shared among mul-tiple users. Presentations made with this tool must be published in MyCorpTV within 5 days following registration. Otherwise, those recordings will be removed from servers. Momindum hereby grants to the CLIENT a non-exclusive right to use the Solutions listed in the Appendix of the Contract.
Momindum hereby provides a warranty against any programming defects.
Momindum shall be in charge of hosting the Data, as well as being in charge of the mainte-nance and the security of the Solutions.
Momindum shall be in charge of backing up and securing the Data.
ARTICLE 4: QUALITY OF THE SERVICES PROVIDED
The Client is aware of the technical uncertainties inherent to the Internet, and of the inter-ruptions of access that may result from this. Therefore, Momindum shall not be liable for any unavailability or slowdown of the Application Services.
The Client recognises that Momindum is unable to guarantee the continuity of the Application Services, which are provided remotely via the Internet.
Moreover, the Client must comply with the volume thresholds stated [in the quote, in the ap-pendix or in the specifications, etc.] and must notify Momindum of any increase in its require-ments in terms of processing capacity. The Client may be charged extra in case of an overrun. The Client therefore pledges to regularly acquaint itself with the pricing terms and conditions applicable in case of an overrun of the usage limits of the Services, which may be viewed at www.mycorptv.com and www.salesforce.com.
Momindum pledges to implement effective monitoring to provide a reasonable assurance that the Client can access and use the applications involved.
Momindum guarantees the launch of the Application Services.
The Application Services may be suspended occasionally owing to maintenance work that is required to ensure the proper operation of the servers of Momindum. In case of an interrup-tion of the Applicainterrup-tion Services for maintenance purposes, Momindum pledges to comply with the operating procedure described below, in order to ensure that the Client is optimally informed about the interruption and is able to take any measures with sufficient advance no-tice so as to avoid any disruption of its activity.
Momindum hereby disclaims liability for any impact that such unavailability may have on the Client’s activities.
Momindum shall only be liable for the consequences of an interruption or a suspension of the Application Services for maintenance purposes if Momindum has failed to comply with this procedure and in particular if Momindum has failed to notify the Client with sufficient advance notice in order to enable the latter to anticipate the suspension and to adapt its operations accordingly, where need be.
Momindum pledges to make any updates or upgrades of the product available to the Client throughout the term of the Contract, within the limits of the functional scope described above in article 3.
Momindum disclaims any liability for the information that shall be broadcast via the “MY-CORPTV” application, given that it does not exercise any control over this information.
Momindum has taken out the insurance policies required in order to cover the risks linked to the exercising of its activity. Momindum pledges to provide any evidence of these insurance policies to the Client, if the latter expressly requests it to do so.
Momindum declares and warrants:
- That the Solutions that it has developed are original as per the definition of this term in France’s Code de la propriété intellectuelle [intellectual property code],
- That it owns all the intellectual property rights enabling it to sign the Contract.
Momindum declares and warrants that the Solutions are not likely to jeopardise the rights of third parties.
ARTICLE 5: THE CLIENT’S OBLIGATIONS AND THE PARTIES’ MUTUAL
OBLI-GATIONS
The Client pledges to use the information concerning the products mentioned only for its own personal purposes or those of its contract partners and for the sole purposes mentioned in this Contract.
Should the Data transmitted in order to use the Application Services comprise personal data, the Client shall guarantee to Momindum that it has complied with all its obligations under France’s data protection law of 6 January 1978 and that it has informed the natural persons involved of the use of their personal data. To that end, the Client shall guarantee Momindum against any claims or complaints emanating from a natural person whose personal data is re-produced and hosted via the Application Service.
Should the Data be stored on servers that are located in countries outside the European Union, a specific authorisation to transfer the Data must be obtained from France’s CNIL Data protec-tion authority.
Momindum pledges to inform the Client about the location of the Data and in general, to dis-close all information that is useful and necessary to make the declarations.
USE OF THE DATA
The Client shall bear full editorial responsibility for the use of the Application Services.
The Client shall alone bear responsibility for the quality, the lawfulness, the suitability of the Data and content that it transmits for the purpose of using the Application Services. The Client moreover guarantees that it is the holder of the intellectual property rights enabling it to use the said Data and content.
Therefore, Momindum disclaims any liability in case of:
- Non-compliance of the Data and/or of the content with the statutes and regulations, with public order rules or with the Client’s requirements.
The Client shall guarantee Momindum immediately on request against any loss or damage that might result from its liability being invoked by a third party for a violation of this guarantee. In general, the Client shall bear full liability for the content and messages broadcast and/or downloaded via the Application Services. The Client shall remain the sole owner of the Data constituting the content of the Solutions.
ARTICLE 6: THE CHOICE OF EQUIPMENT
Prior to the signature of this document, the Client hereby declares that it is aware of the docu-mentation concerning “MYCORPTV” and of the technical specifications required for the use of the service in keeping with the preamble.
The Client shall ensure that its equipment and facilities, and in particular its browsers or means of connection, are able to use “MYCORPTV” with the requisite efficiency.
ARTICLE 7: ACCESS TO MYCORPTV
without any identification being required apart from that required to access the SALESFORCE web site.
The identifier and password shall act as evidence of the identity of the Client, which shall be liable for any use of the Solutions that takes place through them. They shall be deemed to be equivalent to an electronic signature as per the meaning of this term in article 1316-4 of the Civil Code.
The Client shall be fully and solely responsible for its identifier and password. It alone shall bear the consequences that may arise from their use by third parties who may be acquainted with same.
ARTICLE 8: ASSISTANCE
Assistance in case of problems in the use of MYCORPTV is provided by Momindum. In order to implement the Customer must designate a “super-user”, which will serve to make the con-nection between the company and Momindum and provide information to users and support everyday.
SUPPORT LEVEL 1
If problems in the use of MYCORPTV, the superuser may call Momindum, which will accept the request, record it (application number, date, time, reason), qualify the request and give basic advice for solving the problem. This is the Support Level 1. If this is not enough, the super-user may request the establishment of the Support Level 2.
SUPPORT LEVEL 2
The Assistance Level 2 is the analysis of unresolved incidents in level 1 and the definition of test scenarios to reproduce the problem and / or improve. This assistance is realized online by Momindum after the super-user sent an email to the following address: contact@momindum. com.
Client will be answered Monday to Friday from 09h to 17h, within a maximum period of 24 hours.
ARTICLE 9: PRICES
9-1: RATES
The rates shall be based on a rental model. The right to use MYCORPTV shall be granted in return for the payment of the technical initialisation costs and monthly usage costs (monthly subscription).
The precise monthly fee that shall be applicable is set out in the quote that is appended to this Contract.
The billing address shall be the address of the Client’s registered headquarters.
The following services shall be excluded from the fee and shall be billed separately: - Training services,
- Technical support services,
- The purchase of hosting packages and additional video streaming.
- Activation of the “public sharing” feature as well as the purchase of packages of views related to this option.
- And, in general, all services that do not fall within the scope of the SaaS offering. Momindum’s invoices shall be payable in advance, within 30 days following the date on which they are received, by means of a cheque sent to the abovementioned physical address, or by means of a bank transfer, after Momindum shall have provided its full bank account details. 9-2: PAYMENT
The payment due date shall be set out in the invoices. Payments may be made by banker’s draft or any means approved by both parties.
The full price mentioned in section 9.1 must be paid to Momindum before the provision of any service. In case of tacit renewal in keeping with the terms shown in the quote enclosed herewith, the Client must pay the price at least fifteen days prior to the anniversary date of the Contract.
9-3: PAYMENT DELAY OR DEFAULT
Any delay in the payment of the royalties shall give rise to the accrual of interest at the inter-est rate applied by the BCE to its most recent refinancing operation plus 7 points, from the payment due date onwards. The interest shall accrue until payment in full of all of the moneys that are due.
Notwithstanding any damages that may also be due, any failure by the Client to pay an invoice on time shall as of right lead to:
- the application of interest for late payment at a rate of three times the standard inter-est rate, without any prior notice and as of the first day of delay;
- the imposition of additional bank costs and management costs (monitoring of the re-covery process, costs of issuing letters and making follow-up telephone calls, repeat presentation of payment requests to the banks);
- the immediate suspension of the Services;
- the rescission of the Contract as of right, 30 days following the sending by Momindum of a summons by means of a letter sent by registered post with acknowledgement of receipt which is not acted upon.
9-4: FREE TRIAL
Momindum shall make the Application Services available to the Client free of charge until the last day of a period of one month following the acceptance of this Contract by the Client.
This free trial shall comprise (i) the activation of the Services, (ii) the User Guide to the Services and the Tutorials, (iv) access to the support provided by Momindum.
Any Data that the Client inputs into the Application Services during the free trial shall be irre-vocably lost should this Contract be rescinded pursuant to the free trial.
The subscription to this Contract shall become a fee-paying one as of the first day of the month following the signature of this Contract, in keeping with the terms of article 9.
The trial period shall end automatically after thirty (30) days.
ARTICLE 10: OWNERSHIP
10.1 LICENSE
Momindum is and shall remain the holder of the intellectual property rights over all elements of the Application Services and the Solutions that are made available to the Client, as well as the IT infrastructure (software and hardware) implemented or developed within the scope of the Contract.
The Contract shall not grant the Client any right of ownership over the Solutions. The tempo-rary provision of the Solutions in accordance with the terms of the Contract may not be con-strued as a transfer of any intellectual property right to the Client, as per the definition of this term in France’s Code de la propriété intellectuelle.
Momindum hereby grants the Client a personal, non-exclusive, non-transferable and non-as-signable right to use the Solutions, throughout the term of the Contract and for the world as a whole.
The Client may use the Solutions only in accordance with its requirements and their documen-tation. In particular, the license over the Solutions shall be granted only to enable the Client to use the Services, to the exclusion of any other purpose.
The right to use the Solutions shall cover the right to show and to implement the Application Services in accordance with their designated purpose, in SaaS mode, via a link to an electron-ic communelectron-ication network. The Client shall not under any circumstance make the Solutions available for use by a third party, and pledges not to make any other use thereof, such as any adaptation, modification, translation, arrangement, broadcasting, decompilation, etc., this list being non-exhaustive.
This Contract shall not grant the Client any intellectual property rights over “MYCORPTV”, which shall remain the full and exclusive property of Momindum.
The Client pledges to comply with the statements of ownership featuring on “MYCORPTV”, the various related media and the documentation.
The Client is and shall remain the owner of all of the Data that it shall use via the Application Services within the scope of the Contract.
10-2: REPRODUCTION – ADAPTATION
The Client pledges not to reproduce any element of the Software Applications, or any docu-mentation concerning them, in any way whatsoever, whatever the form thereof and on any medium whatsoever.
The CLIENT may not transfer or assign all or part of the rights and obligations arising from the Contract, be it as part of a temporary transfer, a sublicense or any other contract which pro-vides for the transfer of said rights and obligations.
The Client formally pledges not to permanently or temporarily reproduce “MYCORPTV” wholly or partly, by any means and in any form, including upon the loading, the displaying, the execu-tion or the storage of “MYCORPTV”.
The Client pledges not to translate, to adapt, to arrange or to modify “MYCORPTV”, to export it or to merge it with other IT applications.
10-3: CORRECTIONS OF ERRORS
Momindum alone shall be entitled to perform work on “MYCORPTV” to enable it to be used in accordance with its purpose, for instance to correct any errors that it might contain. The Client therefore formally pledges not to carry out any work and not to commission any third party to carry out any work on “MYCORPTV”.
ARTICLE 11: INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS
Momindum guarantees that it is the holder of all the intellectual property rights enabling it to enter into this Contract and that “MYCORPTV” is not likely to infringe any third party rights. It also guarantees that “MYCORPTV” is entirely original and is not wholly or partly the outcome of any forgery or acts of unfair competition.
The Client pledges to immediately report to Momindum any infringement of “MYCORPTV” which it should become aware of, Momindum being then entitled to take whatever measures it shall deem to be appropriate.
ARTICLE 12: LIABILITY AND FORCE MAJEURE
The Client shall be fully responsible for its use of “MYCORPTV” and shall be responsible for all aspects other than the compliance of “MYCORPTV” with its documentation, and in particular for:
- the suitability of “MYCORPTV” for its requirements, - the operation of “MYCORPTV”,
- the qualification and the competence of its personnel.
Momindum hereby disclaims liability for damage arising from the loss, the alteration or any fraudulent use of Data, the accidental transmission of viruses or of other damaging elements into the computer system of the Client pursuant to the use of “MYCORPTV.
Momindum disclaims liability for any alteration of information or Data during their transfer via telecommunication or other means.
Momindum hereby disclaims liability for any direct and indirect damage that may occur under any circumstances, such as a loss of sales, a loss of clients, any disruption of the normal course of business, a loss of earnings, a loss of brand image or any competition action considered disloyal, such as loss of contracts, etc.
The parties hereby expressly agree that in case of activation of the guarantee, the latter may not exceed 12 months’ rental, as mentioned in article 9 of the Contract.
Each of the parties shall be responsible for the consequences arising from its wrongful acts, errors or omissions, as well as the wrongful acts, errors or omissions of its subcontractors, if any, that cause direct damage to the other party.
AS TO INDIRECT DAMAGE:
Moreover, should the Client be able to demonstrate that a fault was committed by Momin-dum, the latter shall only be bound to repair the financial consequences of any direct and foreseeable damage arising from the provision of the Services. Therefore, Momindum shall not incur liability under any circumstance for any indirect or unforeseeable losses or damage incurred by the Client or by third parties, including any loss of earnings, any loss, inaccuracy or corruption of files or of Data, any loss of sales, any loss of turnover or of profits, any loss of clients, any loss of an opportunity, any loss of the cost of obtaining a product, a service or a substitution technology, in connection with or as a result of the non-performance or the faulty performance of the services.
AS TO THE CAP ON LIABILITY FOR DIRECT DAMAGE:
In any event, Momindum’s liability shall be strictly limited to the reimbursement of the mon-eys effectively paid by the Client come the date of the occurrence of the event which gave rise to liability, per user workstation and per day of interruption out of the average consumption over the past twelve months.
Momindum shall not moreover be liable for the accidental destruction of the Data by the Cli-ent or by a third party who accessed the Application Services using the IdCli-entifiers provided to the Client.
FORCE MAJEURE:
Momindum shall not under any circumstance be held liable for any damage or loss caused by an interruption or a drop in the level of the service provided the telecommunications operator, the supplier of electricity or in the event of circumstances of force majeure.
if such a breach results from an arbitrary government act or decision, including any withdrawal or suspension of any permits whatsoever, a total or partial strike, whether internal or external to the company, a fire, a natural disaster, a state of war, a total or partial interruption or the blocking of the telecommunications or electricity networks, an act of computer piracy, or in general any other circumstances of force majeure featuring the characteristics defined by the case law.
Any party which experiences circumstances of force majeure must immediately inform the other party of its inability to perform its obligations.
The suspension or delay in performing the obligations shall not under any circumstance be a cause of liability for non-performance of the obligation in question, nor shall it lead to the pay-ment of damages or penalties for lateness.
ARTICLE 13: RESCISSION
Without detracting from any damages that may also be claimed, any failure by either party to perform any of its obligations under this Contract may lead to its rescission, as of right at the initiative of the party which is not in breach, 30 days after the sending of a summons to perform the contentious obligations by means of a letter sent by registered post with acknowl-edgement of receipt which is not acted upon.
This timescale may be curtailed to 5 days after receipt of the summons should the Client use “MYCORPTV” to broadcast information that is clearly incompatible with the image of Momin-dum.
In case of rescission due to the exclusive fault of the Client, any monthly instalments paid in advance by the latter shall be kept by Momindum as penalties.
ARTICLE 14: INTEGRITY
Any tolerance or waiver by one party of the application of all or part of the other party’s com-mitments under this Contract, whatever its frequency and duration, shall not be deemed to be tantamount to a modification of this Contract, nor shall it give rise to any rights.
This Contract constitutes the full and entire compact between the parties.
During the notification of the renewal of his previous contract, Momindum will be required to report any changes made to this User Agreement. Acceptance of renewal by the CLIENT is ac-ceptance of the new conditions of use.
The nullity, voidness, lack of binding nature or unenforceability of any of the provisions of this Contract shall not result in the nullity, voidness, lack of binding nature or unenforceability of the other provisions of this Contract, which shall retain their full effect.
ARTICLE 15: DISPUTES, APPLICABLE LAW AND COMPETENT COURT
This Contract shall be governed by French law. Should this Contract be drawn up in several languages, only the French version shall be authoritative.
Should any dispute arise over the performance of this Contract, the parties to the Contract shall meet up in a bid to resolve it within 15 days following receipt of a notification of the dis-pute sent by one party to the other by registered post with acknowledgement of receipt, or by a digitally signed electronic message.
Should the mediation process fail, the Commercial Court of Paris, France shall have exclusive jurisdiction to interpret this Contract and rule on its performance and validity.
ARTICLE 16: THE PARTIES’ DOMICILE
The parties shall be deemed to be domiciled at their headquarters as set out at the start of this document.
Any modification of the registered headquarters or of the address of one of the parties shall only become binding upon the other party eight days after it is duly notified to it by means of a letter sent by registered post with acknowledgement of receipt or by means of a digitally signed electronic message.
