Welow is the owner or assignee of the rights to the software for measuring the environmental footprint of the products, herein after referred to as the "Software". The Software is available via an API ("Application Programming Interface") and provides a co-branded or white label environmental footprint categorization and estimationservice, hereinafter referred to as the "Service". The software is available in SaaS mode("Software as a Service."). The objective of the Serviceis to enable its users to facilitate and automate tasks related to the measurement of the environmental footprint of its products, in particular by automatically or manually analyzing their attributes. Welow grants to the Customer, who accepts it, a non-exclusive license to use the Service, its API and SaaS here under. The Customer wishes to offerits own customers or partners functions for estimating the environmental footprint of its products. Consequently, the Customer wishes to benefit from a license on the Software, via an API in SaaS mode("Software as a Service.")
These General Terms and Conditions define the conditions under which the license is granted by the company Welow, registered with the Nanterre Trade and Companies Register under number 948 554 175, and headquartered at 20 rue du 22 septembre, 92400 Courbevoie, to its Customers.
The Purchase Order and the Quote provided to the Customer, together with the General Terms and Conditions, are the Contractual Documents that constitute the Agreement governing the sale of services and the granting of a non-exclusive license for the use of the Service, subject to the General Terms, to the Customer by Welow. This license and the acquisition of associated services are subject to a subscription.
These General Terms and Conditions have been communicated to and made available to the Customer in accordance with the provisions of Article L 441-1 of the Commercial Code. Any subscription made by the Customer with Welow, as well as any use of the Service, implies the Customer's unconditional acceptance of these General Terms and Conditions.In the event of a contradiction between contractual documents of a different nature or different rank, it is expressly agreed between the parties that the provisions contained in the higher-ranking documents shall prevail for conflicting obligations of interpretation.
The fact that Welow does not rely on the specifications of these General Terms and Conditions at a given time or for a specific issue shall not be interpreted as a waiver of the right to rely on them at a later date.Welow reserves the right to periodically update these General Terms and Conditions, subject to prior notification to users of its Software.
Capitalized terms and expressions have the following meanings, whether used in the singular or plural.
"Access": refers to the services that make the Service accessible, in the best conditions of performance and security ;
"Anomaly": means any malfunction, degradation of performance or other non-compliance with the Contractual Documentation and/or specifications agreed between the Parties ;
"Welow API": means Welow's Application Programming Interface provided by a computer program and allowing Customer access to the Service ;
"Beneficiaries": refers to the members of the Client or its partners ;
"Purchase order"or "Membership Agreement": means the contractual document that Welow will ask its Customers to return to validate their order and membership for the use of the Software for which Welow has granted it an Operating License. This may be the Quote signed electronically by the Client or afull-fledged contract signed electronically by the Parties ;
"Customer":refers to the Customer, contracting directly with Welow, and intervening bothon his own behalf and that of its members so that he and his own customers orpartners, are authorized by Welow to use the Software ;
"End Customers":refers to all those, Customers and Beneficiaries, who will use Welow'ssoftware. These are Users of Welow's Software ;
"Contract": refers to all the contractual documents composed of : these General Terms andConditions, the quote, the purchase order or the contract itself signed between the Parties ; "Availability"or "Available": refers to the state of the Service when any Customer can access the functions of the Software and the Service, and make normal use of them to obtain results consistent with those expected, in particular with regard to the Documentation ;
"Quote":refers to the contractual document sent by Welow to the Customer with mention of the Price ;
“Documentation":refers to all manuals and/or online help, written in French or English provided on paper and/or electronic media, describing the functionalities of the Software, in its successive versions, and, in general, all functional and technical information relating to the Software necessary and/or useful for its use and operation ;
"Data": refers to the Customer's computer data and/or its products, including any personal data, generated by or sent to the Software during its use by Customers, stored on the Service Provider's Platform under the Services and accessible only by the Customers concerned. The Data is and remains the property of the Customer and/or Beneficiaries and/or End Customers concerned ;
"Identifier": refers to the identification elements of a User (identifier, API key, etc.), necessary to be able to access the Software and the Data hosted by Welow aspart of the Application; "Confidential Information": means any information or document of any form and nature whatsoever exchanged by any means between the Parties under the Contract, whether before, during or after its execution ;
"Internet": refers to the set of interconnected computer and telecommunications networks,of global dimension and based on the IP communication protocol, allowing access to content by users, via servers ;
"Service Levels": refers to the levels of quality and security expected of the Software and Service, in particular in terms of Availability, performance, response time and correction of Anomalies, as defined in this contract and which must be respected at least by Welow in the provision of the Services ;
"Platform": refers to all hardware, software, servers and networks of Welow's subcontractors, where the Service and Data are hosted ;
"Services": refers to the services provided by Welow for the benefit of the Customer under these General Terms and Conditions of Sale and the Contract, as described in Article 3 ;
"Malicious Program": refers to any harmful computer code such as viruses, logic bombs, worms, Trojan horses or any other code or instruction infecting or affecting any program,software, Data, file, database, computer or other material or element, anddamage, impairing, compromising integrity or confidentiality, incapacitating in whole or in part, diverting or diverting in whole or in part an information system from the use to which it is intended ;
"Price" and"Fee": means the fee paid by the Customer to Welow inconsideration for the Services, as defined in Article 7 ;
"Service" or"Application": refers to the Software chosen by the Customer availablein "SaaS" mode and allowing the analysis of the environmental footprint of the End Customers' Products ;
"User(s)":refers to any natural person who is an employee (permanent or non-permanent),trainee, temporary or subcontractor of the Customer, or its members, authorizedby the Customer, and having for this purpose an Identifier, to access and/oruse all or part of the Software.
Welow's activity: Welow is acompany whose ambition is to make each individual an informed actor of theenvironmental footprint of his expenses to bring about progressive changes that benefit everyone. Welow is the owner or assigneeof the rights to the software for measuring the environmental footprint of products, hereinafter referred to as the "Software". The Software is available viaan API, available in SaaS mode, and provides a co-branded or white labelcategorization and environmental footprint estimation service, herein after referred to as the "Service". Objective: The Customer wishes to offer its Customers and Beneficiaries and for itself, functions forestimating the environmental footprint of its products. This measure makes it possible to raise awareness among Customers and Beneficiaries of the impact ofproducts on the environment and to the customer to deploy eco-design strategies or reduce its environmental footprint. Consequently, the Customer wishes to benefit for himself and for his own customers and partners, theBeneficiaries, from a license to use the Service, his Welow API. Also, Welow's offer, in return for payment of the Fee provided for in Article 7 below, is to:
- Provide initial services as part of the implementation of the Service and the support of the Customer ;
- Grant the Customer and the Beneficiaries, customers orpartners of its Customer, who accept it, a non-exclusive, personal and non-transferable right to use the Software.;
- Carry out hosting and maintenance services for theApplication ;
- Provide follow-up and additional services, at the request of the Client and/or the Beneficiaries ; (together, the"Services") ;
- Provide consulting services as required.
The acceptance of thesegeneral conditions is materialized by the signature of the quote worth Purchase Order or the Purchase Order. This acceptance can only be full and complete. Anyacceptance subject to reservation is considered null and void. The User whodoes not agree to be bound by these terms and conditions must not use theSoftware. Welow reserves the right tomodify all or part of these General Conditions, in which case Welow will informthe User of the changes made as soon as they are posted on the Service. In the absence of adhesion to the new General Conditions, the User has a period of 72 hours from the date of notification to inform Welow by email. In the event that the User has not notified his disagreement within the period provided above, he will be deemed to have accepted the changes.
Access to the software and the license granted to the Customer by Welow are granted to the Customer within 30 days of acceptance by Welow of the order placed by the Customer, under the conditions provided for in these general conditions of sale.
In return for payment of the Price, Welow grants its Customer and the Beneficiaries, customers or partnersof its Customer, for the duration of the subscription, a license to use itsSoftware via an API so that they can use the Service. This is a non-exclusive, personal, non-transferable right to use the Software. This does not entail any transfer of ownership of the software to them. The Service is used on the Beneficiary's website or on other sites operated directly by the Beneficiary under one or more of its brands only. In general, Welow reserves the right to take and implement any technical decision aimed at improving the Service, subject to ensuring its continuity, under the conditions defined herein. The Documentation relating tothe Service is delivered by Welow to the Customer, who will be responsible for transmitting it to the Beneficiaries and ensuring that they comply with the said Documentation.
Welow undertakes to makeService available 7 days a week and 24 hours a day, including, on Sundays and public holidays, to End Customers, subject to the provisions below, except for scheduled maintenance periods, and in accordance with the conditions set out in Articles 5.8 and 5.9 below. The Customer acknowledges and accepts that Access to the Service and its use may be suspended by Welow,exceptionally, and in compliance with the Service Levels :
- for the duration of an unforeseeable interruption orfailure, affecting all or part of the Service, whatever the cause and, in particular in the event of a power failure, system errors affecting the ITresources of Welow or its service providers ;
- in the event of interruption of all or part of theAccess to the Service required by preventive or curative maintenanceoperations, correction or update of systems or due to computer attacks (virusattacks or denial of service for example).
Welow may also suspend Access to the Service and its use in the event that all or part of the Service becomescontrary to the terms of a law or regulation and leads Welow to must, or to consider it necessary, suspend Access to the Service concerned or to interruptits provision. Whenever possible, Welow undertakes to notify the Customer in advance of interruptions or stoppages affecting the provision of all or part of the Service. The prerequisites and specifications that must be respected by the Customer in order to ensure End Customers and users access to the Software and the benefit of its functionalities in conditions of sufficient comfort, are defined by this Agreement. The costs relating to the implementation of such a configuration arethe sole responsibility of the End Customer. In addition, the costs of access to the Platform are the sole responsibility of the Beneficiary (and are included in the Fee due under the Contract).
In return for payment of the price, Welow grants the Customer and the Beneficiaries, for the duration of the subscription, a right to use its Software via an API so that they can use the Service. To do this, Welow will provide the Customer with an Identifier allowing the latter to access the Service. The identification of the Customer by means of the Identifier sent to him is,irrefutably, imputable for the operations carried out by means of thisIdentifier. The Identifier provided by Welow to the Customer is confidential, unique and personal. The Customer issolely responsible for its use. The Customer undertakes underan obligation of result to keep secret the passwords and identifiers that havebeen given to him. In the event of loss, theft or unauthorized use of one or more Identifiers, the Beneficiary concerned will notify Welow, directly or through the Customer, immediately, by telephone, faxor e-mail in order to have them modified, and the latter undertakes to confirm the loss/theft/unauthorized use by registered letter with acknowledgment of receipt.
The Customer and theBeneficiaries are personally responsible for Internet access, necessary for theuse of the Service. The related costs will be borne exclusively by the Customerand/or the Beneficiary, who is personally responsible for taking out the necessarytelecommunications subscriptions.
In the event of non-compliance with its obligations by the Customer (and in particular, the payment obligations referred to in Article 7 of these General Terms and Conditions of Sale), Welow reserves the right to suspend ipso jure, fifteen (15) days after a formal notice sent to the Customer enjoining him to comply with his obligations remained without effect, access to the Service.
As part of the provision of the Service, Welow undertakes to comply with the Service Levels, in particular, in terms of quality, performance, availability, security and timeliness for the recovery and correction of incidents and anomalies. Welow is responsible fordetermining and implementing the necessary means to comply with its ServiceLevel commitments in compliance with the Fee agreed in these general conditionsof sale, and where applicable, the Contract for the provision of the Service. In any case, Welow mustimplement all the resources at its disposal to ensure at least compliance with Service Levels.
Welow will provide theCustomer and the Beneficiaries, in accordance with the provisions of thisarticle and in compliance with its Service Level commitments, a "ServiceSupport", consisting of providing them, by telephone or email: - the explanations necessary to access and use,remotely, the Software and the various treatments that may be carried out by it; - as well as, more broadly, any answer to any questionfrom the Customer relating to the use and operation of the Software and/or thePlatform. Support requests must beprocessed by Welow in accordance with Service Level commitments.
Corrective MaintenanceServices consist of correcting and taking all necessary actions to restore theService in the event of an incident or failure, and correcting any reproducibleAnomaly that appears in the use of the Service. In the event that a BlockingAnomaly cannot be corrected within forty-eight (48) hours after the occurrenceof said Anomaly, Welow shall recommend a temporary workaround pending adefinitive solution. Anomalies and other incidentsmay be detected by Welow or the Customer. Any incident detected by the Customeris reported to the Service Provider by telephone, fax or e-mail with adescription of the Anomaly encountered. The notification of Anomalies must becomplete, the Customer must refer to the Documentation in order to be able todescribe precisely and exhaustively the Anomalies encountered. An incomplete (i.e.,one that does not allow Welow to perform its maintenance obligations) orunfounded notification will release Welow from its obligations. Whatever the type of Anomalyand whether it has been detected by Welow or by the Customer, Welow undertakesto provide the Customer with its analysis of the Anomaly and all informationlikely to allow the Customer to assess the nature, causes and expectedresolution times of the incident. Welow will provide the Customer with regularreports until the complete and definitive resolution of the Anomaly. In addition to maintenanceperiods, Welow may be required to carry out scheduled maintenance work, whichwill be subject to prior notification to the Customer. Welow will also endeavorto plan maintenance periods at time slots that have the least possible impacton the activity of the Customer and the Beneficiaries. In any event, the duration andtime slots of execution of this scheduled maintenance work must comply with theService Levels agreed in this regard between the Parties, including the agreedAvailability.
New versions of Welow's APImay be installed by Welow on its Platform, subject to prior notification to theCustomer, as and when they become available (including improvements to theService, new versions intended to integrate patches, etc.). In case of incompatibilitywith previous versions of the Service, caused by the changes introduced byWelow in its API, Welow will refer to the Customer by email and will guaranteea minimum period of three (3) months during which the old and new versions ofthe Service will be supported. Welow warrants to the Customerthat the Software will always comply with the laws and regulations in forceapplicable to the functional and geographical scope of the Software.
The purpose of the various updates will be to make all the changes made necessary by legal or regulatory changes corresponding to the processing relating to the implementation of the service.
Welow will not provide the Maintenance Service in the following cases:
- refusal on the part of the Customer to accept anupdate proposed by Welow (at the end of the period of three (3) months referred to in Article 5.9)
- use of the Access to the Service in a manner not inaccordance with the Documentation by the Beneficiary or End Customers ;
- intervention by Customer or a third party on theSoftware and/or Service not authorized by the Agreement or by Welow ;
- anomaly generated by the equipment of the Customer,the Beneficiary, or their Access equipment ;
- failure to pay the Fee.
Welow undertakes to ensure the hosting of the Software and Data, on the Cloud Platform or hosting, under theconditions of quality, availability, security and confidentiality described inthis Agreement, which the Customer expressly accepts. Welow reserves the right atany time to change host, provided that it informs the Customer in advance andthat the new host provides the same guarantees of security and availability as the current host, which is accepted by the Customer. Welow undertakes to limit as much as possible the interruptions of Services that may result. As such, Welow is responsible for managing relations with any host in connection with the hosting andoperation of the Platform, Software and Data.
Welow acknowledges that security is a fundamental obligation in the performance of the Services, the provision of the Software and the Platform, given the extremely confidential nature of the Data of the Customer, the Beneficiaries and the End Customers. As part of the performance of the Services, Welow shall ensure the security of computer processing and/or Data in accordance with the security measures approved in this Agreement. Welow undertakes in particular to protect them against accidental or unlawful destruction, accidental loss, alteration, dissemination, introduction of Malicious Programs, or unauthorizedaccess. Welow recognizes that security is a fundamental requirement for the performance of the Services. To this end, Welow undertakes to implement appropriate technical and organizational measures in accordance with industry standard practices and, where applicable, local regulations toensure the availability, integrity and confidentiality of the Data and the Customer Information System as well as the traceability of access and actions.
If support needs or specificactions are identified, additional Services will be offered. The Additional Services arecarried out after validation of a purchase order by the Customer.
Welow transmits prior to the Customer's order a quote containing the instructions for placing the order and the applicable pricing terms including the price. If the Customer accepts the Price and the applicable terms, he signs the quote – including electronically, and returns it to Welow. The signed quote will be worth "Purchase order".
Welow may also send in addition a contract to be signed to the Customer. Any order by the Customer mustbe accepted in writing and expressly by Welow, materialized by the sending of an Identifier allowing the latter to access the Service and the software, or by any other process of validation of the order by Welow. From its acceptance by Welow, any order is deemed firm and final and commits the Customer. Consequently, the order cannot be cancelled or modified by the Customer after its acceptance by Welow, except with the prior written consent of Welow.
The Customer pays, in returnfor the Services, a fee (the "Fee") under the conditions specified below. The price is the one in forceon the day of placing the order, as defined in the quote. The price is calculated on thebasis of the price excluding VAT indicated in the quote or the purchase order andwill be increased by taxes, in particular the VAT in force on the day of invoicing. The Fee will be invoicedaccording to the conditions specified in the quote or in the purchase order. The price is payable in euros,non-cancellable, non-refundable, excluding VAT which will be added to Welow's invoices at the appropriate rate on the day of the order. In the event of a renewal ofthis Agreement, the Fee may be revised annually. No rebate will be granted.
Unless special conditions expressly agreed between the Parties, the payment of orders is made by direct debit from the bank account indicated in the SEPA direct debit mandate providedwhen signing the Quote, within the period stipulated in the Quote. The payment period of aninvoice issued by Welow may not exceed 30 days from the performance of the services by Welow. Any payment due by theCustomer may under no circumstances be suspended or subject to any reduction or compensation. In the event of late payment,Welow may suspend the Customer's access to the Service and its Software, without prejudice to any other course of action and the Customer shall payWelow a late payment penalty, the amount of which is set at a rate equal to theinterest rate applied by the European Central Bank to its most recent refinancing operation plus 10 percentage points, per day late. These penalties are calculated on the amount including VAT of the amount remaining due and run from the firstday following the due date of payment, until the day of full payment by theCustomer and Welow may invoice them without prior formalities. These late penalties are payable without reminder from Welow. If the Customer does notrespect the deadline agreed herein, then he is exposed to late payment penalties, which do not require prior notice to be due. In addition, any delay inpayment entails, ipso jure, in accordance with Articles L. 441-6 and D. 441-5of the French Commercial Code, the payment of a lump sum compensation for recovery costs in the amount of forty (40) euros. In the absence of any paymentof the price on its due date, Welow may suspend the customer's access to its services and terminate the Contract automatically seven (7) days after a formal notice remained without effect, without prejudice to any damages that may beclaimed by Welow. Welow retains ownership of the software and does not grant any license to use its software to the Customeruntil full payment of the Price by the Customer. This clause does not preclude the transfer of risks associated with the use of the software as soon as it ismade available.
The Parties agree to cooperate closely in their relations and in the implementation of the Contract. Each of the Parties undertakesto maintain an active and regular collaboration by providing the other Partywith all the elements and information that the latter may request within the framework of the Contract. If during the performance of the Services a difficulty appears, the collaboration desired by the Partiescommits them to consult each other with a view to putting in place an adapted solution to resolve the difficulty as soon as possible, by privileging the necessary continuity of the Services.
Welow will carry out the Services remotely on its premises. In the event of travel to the Client's premises, the Service Provider's staff must comply with the applicable internal regulations, in particular with regard to security and confidentiality. However, all the Service Provider's staff assigned in whole or in part to the Services, subject of the Contract, remain in all circumstances, under the sole hierarchical and disciplinary authority of the Service Provider. For the part of the Services that will be performed on the Client's premises, the Client undertakes to make available to the Service Provider, throughout the duration of the Services, the means (in particular the technical conditions) necessary for the proper performance of the Services. Welow will only be able to intervene on the Client's premises from Monday to Friday during office hours.The Client must give its prior approval in writing before any intervention by the Service Provider at the Client's premises on weekends.
Welow warrants that the Software and Services provided conform to the description in this Agreement,including functionality, performance and security. Welow warrants that the Software is free from material defects. In the event that a material defect is notified to Welow and such material defect does not result from the breach by the Customer or the Beneficiaries, of any of their obligations, the Customer may request a refund of the price paid for the remaining duration of the subscription period or request the immediate termination of the license by a notification addressed to Welow requesting a refund of the price paid for theremaining duration of the subscription period, provided that Customer provides in both cases all information necessary to resolve the defect, including a documented example of the defect and reasonable access to its tools if necessary.
Welow declares that it has all the rights allowing it to conclude the Agreement and to comply with all thestipulations thereof, and in particular, that it has the necessary andsufficient rights to grant the Customer, and the Beneficiaries, a license touse the Software. Welow warrants that theSoftware and the Service, including any updates and/or new versions, are notand will not, in whole or in part, constitute infringement. In the event that acourt decision becomes final that the Service is in whole or in part infringingthe intellectual property rights of a third party, Welow undertakes, at itsdiscretion and expense, (a) to replace or modify the Service or Software sothat it is no longer infringing, (b)obtain permission from the right holder to continue using the Service orSoftware, or (c) terminate the Agreement and return to Customer any Royaltieswrongly received, to the extent such Fees have already been paid by Customer. Welow guarantees the Customeragainst any action, claim, demand, opposition, by any person claiming that theSoftware or Service would be infringing its intellectual property rights, whichwould be initiated against the Customer, provided that:
- The Customer has immediately notified, in writing, theinfringement action or the declaration preceding it ; and
- Welow has been able to defend its own interests andthose of the Customer and, to do so, that the Customer has cooperated loyallyin such defense by providing all the elements, information and assistancenecessary to carry out such defense.
Welow undertakes to make the Software and Services available free of any Malicious Program.
The Customer guarantees Welow that he has all the rights attached to the Data. The Customer indemnifies Welow against all actions, claims, demands, oppositions, on the part of any person invoking a right of any kind on the Customer Data that would have beeninfringed by the execution of this Agreement. In this case, compensation andcosts of any kind, spent by Welow to ensure its defense, including consultingcosts, as well as any damages pronounced against it, will be borne by the Customer.
Except as specified in point 10.1above, Welow makes no other express or implied warranties regarding the application or Software, services or any other equipment, supplies or services provided by Welow under the contract. Welow bears no responsibility for any use, disposal or sale or use of the software or services, in particular outside the use for which it was designed.
Welow carries out its contractual obligations with all possible care customary in its profession. In the event of a serious failure of Welow, it will be liable for direct damage caused by this failure, to the exclusion of any indirect damage. Indirect damage shall bedeemed to be losses of data, time, profits, turnover, margins, loss of orders,customers, operations, revenues, commercial actions or damage to the brandimage, expected results and actions of third parties, including End Customers. Welow cannot be held liable for disruptions or damage inherent in electronic communications networks or having the characteristics of an event of force majeure, as defined in Article1218 of the Civil Code. Welow cannot be held responsible for difficulties relating to the use of the Service that are attributable to non-compliance by Customers or Users with the GTC. Similarly, Welow cannot be held responsible in the event of unavailability of access to the Service :
- due to the maintenance of the Service as described inArticles 5.8 and 5.9 of this Agreement;
- due to an interruption or interruption of the serviceunder the conditions described in Article 5.2 of this Agreement. In the event that Welow isheld liable for any reason or for any reason, it shall be limited to the amount of the Fee actually paid by the Customer during the calendar year. This clause shall survive any nullity, termination or termination of this Agreement.
The Customer undertakes to usethe Service under his exclusive responsibility. Customer is solely responsiblefor the use of the Service in accordance with this Agreement, the Quote, the purchaseorder and the Documentation. The Customer is also solely responsible for the Data hosted by Welow under this Agreement. It is the Client's responsibility to obtain from the End Client, the Beneficiary,verification of the legal, regulatory and contractual compliance of its Data, their processing and the results of their processing. In general, Welow cannot be held responsible for the compliance, accuracy or integrity of the Dataentrusted in connection with the use of the Service. The Customer also indemnifies Welow against any action by a third party based on the operation or malfunctionof the Service under this Agreement if such malfunction is attributable to the Customer. In the event of deletion of an account or login by an End Customer, the Customer undertakes to inform Welow,so as to allow Welow to no longer use the corresponding identifiers tosynchronize the accounts and delete the information associated with this EndCustomer.
The default availability levelis 99% on business days. The level of availability whentroubleshooting is required is as follows :
- critical issue preventing the user's client fromaccessing the application – Application features not accessible – 48 businesshours ; - performance issue that does not prevent the client oruser from accessing the application – Application functionality is partiallyinterrupted – 96 business hours. In all cases, no penalty willbe due.
Nothing in this Agreement and these General Terms and Conditions of Sale shall be construed as involving anytransfer of intellectual property rights to either Party. Consequently, allintellectual property rights used in connection with this Agreement, as well asall technologies, software, information, documents, know-how, trademarks and/orprototypes, communicated by Welow to the Customer under the Agreement remainthe exclusive property of Welow.
Welow will retain ownership ofits own methods and know-how used to perform the Services. The Service, the Software andthe Documentation relating thereto are the exclusive property of Welow in accordance with the provisions of the Intellectual Property Code. Unless otherwise provided inany other agreement, all elements composing the Service, including the interfaces (API and SaaS of Welow) made available to the Customer in connection with the execution of this Agreement and any other information provided by Welow to the Customer are and remain the exclusive property of Welow. This Agreement does not grant Customer any ownership rights in the Service, which remains the full property of Welow. The provision of the Service under the conditions provided for in this Contract cannot be analyzed as a transfer of ownership. Consequently, the Customer shall refrain from any action or act likely to directly or indirectly infringe the intellectual property rights held by Welow on the Service and its functionalities, as well as, in general, on the Welow trademarks associated with it.
The Customer remains the owner of all Data and information transmitted or created by it or the End Customer in the context of the execution of this Agreement. However, Welow will be the sole owner of all the results of the exploitation of this Data by it, in particular with regard to the ownership of the algorithms and models driven by this means. The Customer is solely responsible for the accuracy and lawfulness of the Data and information transmitted by it or the End Customer in the context of the performance of this Agreement.
Welow grants the Customer, who accepts it, a non-exclusive license to use the Service, its API under thisAgreement and for the duration thereof. The use not expressly authorized by Welow hereunder is unlawful, in accordance with the provisions of Article L.122-6 of the Intellectual Property Code. Thus, it is prohibited for the Customer to proceed :
- any representation, distribution or distribution, reproduction or development of the Service, the SaaS, the Welow API and the related Documentation, whether for a fee or free of charge and in particularany networking or use for professional or commercial purposes other than forthe sole purpose of using the Service under the conditions and limits of thisAgreement ;
- any form of use of the Service, Welow's API, Welow'sSaaS and related Documentation, in any way whatsoever, for the purpose ofdesigning, making, developing, distributing or marketing a similar, substituteequivalent service, API and SaaS as well as similar usage documentation, equivalent or substitute ;
- the adaptation, modification, transformation,arrangement of Welow's Service, API, SaaS and related Documentation for anyreason, including to correct errors ;
- any direct or indirect transcription, translation intoother languages of the Service, the API, Welow's SaaS and related Documentation;
- any use for processing not authorized by Welow ;
- any modification or circumvention of security means such as, in particular, Identifiers ;
- any intervention aimed at correcting errors, for which Welow reserves the right exclusively in accordance with Article L.122-6-1 ofthe Intellectual Property Code. The Customer must inform Welowof any attempt at unlawful use by an unauthorized third party, of which it may become aware, regardless of the modus operandi.
Each Party undertakes to limit requests for information from the other Party, including Confidential Information, to those strictly necessary for the proper performance of the Contract. Each Party undertakes to use the Confidential Information of the other Party only for the performance of the obligations established in the Contract. Thus, each Party may disclose the Confidential Information of the other Party only to those of its employees, corporate officers or co-contractors who have to know it for this purpose, and undertakes not to communicate, reproduce, publish or disclose, in any way whatsoever, this Confidential Information to third parties (other than the aforementioned employees, co-contractors or corporate officers), unless the other Party has given its prior written consent. Confidential Information may only be otherwise disclosed to the extent required by law, including by any regulatory authority. However, in such circumstances and to the extent permitted by law, the Party obliged to disclose the Confidential Information of the other Party shall notify the other Party promptly and in writing so as toenable the other Party to seek any protective measures it deems necessary. Each Party undertakes to takeall security measures, including material security measures, to ensure the conservation and integrity of the documents and information processed during the term of this Contract. Each Party shall ensure that its employees, corporate officers or contractors and its group have to know compliance with the obligation of confidentiality set out in this Article and shall ensure that they are bound by such a strict obligation of confidentiality. The obligations arising from this section shall remain in force for a period of five (5) years following the expiry date of the Agreement. The expiry of the obligations provided for inthis article shall not put an end to banking secrecy, as provided for by law. Confidential Information isnot any information that:
- would be in the public domain at the time of its transmission, or would subsequently fall into it, regardless of any breach of any provision of the Agreement, or ;
- be known to the Party to which it was intended before it was transmitted to it by the other Party, provided that the Party receiving the information can provide valid evidence of its prior knowledge, or ;
- would have been lawfully communicated by a third partyand received in good faith, or ;
- would have been communicated following anadministrative or judicial request, or ;
- would constitute information the use or disclosure ofwhich has been specifically authorized in writing by the other Party.
This Contract may be subcontracted by Welow, subject to prior information to the Customer. Inparticular, Welow may subcontract to any company in its group all or part ofthe Services rendered under the Contract. In any event, Welow shallremain solely responsible vis-à-vis the Customer for the execution of theentire Service(s) and shall obtain, on its insurance policy, the extension ofthe related guarantees. The use of subcontracting will in no way reduce the ServiceProvider's liability under the Contract towards the Customer, Welow remainingresponsible vis-à-vis the latter for the proper performance of the Contract.
Welow declares and guarantees to comply with and fulfill all its obligations under the applicable Europeanregulations on the protection of personal data (and in particular, Regulation(EU) 2016/679 of the European Parliament and of the Council of 27 April 2016)and the applicable national transposition regulations, including, in France, Law No. 78-17 of 6 January 1978relating to data processing, files and freedoms as amended (together, the"Personal Data Regulation"), applicable to personal data. The subject, duration, natureand purpose of the processing, the categories of Personal Data processed aswell as the categories of persons concerned by the processing are those definedin this Agreement. Welow acknowledges that allData is subject to compliance with the Personal Data Regulations and is subjectto professional secrecy and will make every effort to :
- not to process or consult the data or files containedfor purposes other than the performance of the Services it performs for theCustomer under this Agreement ;
- process the Data in accordance with the Customer'sdocumented instructions. If Welow considers that an instruction constitutes aviolation of the Personal Data Regulations, it shall immediately inform theCustomer. In addition, if Welow is obliged to transfer data to a third countryor an international organization, under Union law or the law of the MemberState to which it is subject, it must inform the Customer of this legalobligation before processing, unless the law concerned prohibits suchinformation for important reasons of public interest ;
- take all necessary precautions to preserve theconfidentiality and security of the Data, and in particular, to prevent themfrom being distorted, damaged or communicated to unauthorized third parties,and more generally, to implement appropriate technical and organizationalmeasures to protect the Data against accidental or unlawful destruction,accidental loss, alteration, unauthorizeddissemination or access, in particular where the processing involves datatransmissions over a network, as well as, against any form of unlawfulprocessing, it being specified that these measures must ensure, taking intoaccount the state of the art and the costs associated with theirimplementation, a level of security appropriate to the risks presented by theprocessing operations and the nature of the data to be protected ;
- ensure that persons authorized to process PersonalData under this Agreement (i) undertake to respect confidentiality or aresubject to an appropriate legal obligation of confidentiality, and (ii) receivethe necessary training in the protection of personal data ;
- take into account, with respect to its tools,products, applications or services, the principles of data protection by designand data protection by default ;
- keep a written record of all categories of processingactivities carried out on behalf of the Client including: (i) the name andcontact details of the controller on whose behalf it acts, any subcontractorsand, where applicable, the data protection officer; (ii) the categories ofprocessing carried out on behalf of the Client; (iii) where applicable,transfers of personal data to a third country or international organization,including the identification of that third country or international organizationand, in the case of transfers referred to in the second subparagraph of Article49(1) of the EU Data Protection Regulation, documents attesting to theexistence of appropriate safeguards; (iv) to the extent possible, a generaldescription of the technical and organizational security measures ;
- make available to the Client the documentationnecessary to demonstrate compliance with all its obligations and to enableaudits, including inspections, to be carried out by the Client or anotherauditor commissioned by the Client, and to contribute to such audits ;
- delete or have permanently and immediately deleted theData that the Customer has requested to be deleted. Welow shall notify Customer ofany personal data breach as soon as possible, and in any event within a maximumof six (6) hours after making the diagnosis. This notification is accompaniedby any useful documentation to enable the Customer, if necessary, to notifythis violation to the competent supervisory authority. In addition, Welow willprovide all its loyal cooperation to the Customer in order to help him meet thelegal requirements relating to the protection of Personal Data incumbent on thelatter, in particular in order to respect the rights of the persons concerned. The Customer, as datacontroller, is responsible for the formalities incumbent on him under thePersonal Data Regulations. In particular, it is the Customer's responsibilityto provide the information to the persons concerned by the processingoperations at the time of collection of the Data. The Customer is informed andexpressly accepts that the Data Hosting Services are subcontracted by Welow toa host. In general, Welow may use aprocessor (within its Group or not) to carry out specific processingactivities. In this case, it informs the Client in advance and in writing ofany envisaged change concerning the addition or replacement of othersubcontractors. This information must clearly indicate the processingactivities outsourced, the identity and contact details of the processor andthe dates of the processor agreement. The Customer then has a period of fifteen(15) days from the date of receipt of this information to submit his objections(objections which must be duly justified). This subcontracting can only becarried out if the Customer has not raised an objection within the agreedperiod. Any subcontractor of Welow isrequired to perform the obligations of this Agreement on behalf of and under Customer's instructions. It is Welow's responsibility to ensure that the processor provides the same sufficient guarantees as to the implementation of appropriate technical and organizational measures so that the processing meets the requirements of the Personal Data Regulation.
The contract is granted for aninitial period of twelve (12) months from the signature of the quote equivalentto the Purchase Order or the Purchase Order. At the end of the InitialPeriod, the Contract will then be tacitly renewable under the same conditionsfor periods of twelve (12) months (each period being referred to as the"Additional Period") unless terminated by either Party by registered letter with acknowledgment of receipt no later than three (3) months before theanniversary date of the Contract. In the event of termination ofcontractual relations, for any reason whatsoever, the Parties shall return, assoon as possible from the termination of contractual relations, all Confidential Information in their possession or to the extent that such restitutioncannot be made, shall send each other a certificate of destruction of all Confidential Information in their possession. Once returned, Welow shalldestroy copies and backups of the Data held in its systems. Customer, Users and EndCustomers shall cease all access to, and use of, the Software, Welow shallcease to provide the Services as of the end date of the Agreement.
The Contract may be terminated on each anniversary date, subject to compliance with the notice provided for in Article 16.
In the event of a Party's breach of any of the obligations imposed on it by these general conditions ofsale, the non-defaulting Party must request the holding of a steering committee in order to resolve the breach without delay. In the event of a breach by the Customer of any of its obligations, the Customer's right to use theSoftware shall cease immediately. This contract may beterminated in any of the following cases: In the event that this seriousbreach by a Party of any of the obligation’s incumbent on it by this Contractis not remedied within ninety (90) days from the sending of a registered letter with acknowledgment of receipt, notifying the breach in question, the otherParty may avail itself of the automatic termination of this Contract, withoutprejudice to any damages to which it may be entitled hereunder. The resolutionshall take place on the day following the date of receipt by the defaulting Party of a second registered letter with acknowledgment of receipt notifying itunless another effective date of the resolution which is specified in the saidnotification. In the event that the breach cannot be remedied, or in the event of one of the Parties being sentenced to a criminal sanction, the Contract may be terminated immediately and ipso jure, by registered letter with acknowledgment of receipt from the other Party. The resolution shall take effect on the day following the date of receipt of such notification, unless such subsequent effective date of the resolution may bespecified in such notification, without it being necessary for thenon-defaulting Party to give notice to the defaulting Party, not withstanding any damages to which the non-defaulting Party may be entitled. Customer may terminate the Agreement in the event of a material defect in the Software and Services asspecified in Article 10.1. In the event of termination ofthe contract for any reason whatsoever, the Customer shall pay the price due inaccordance with the contract until the effective date of such termination andreturn or destroy the confidential information as provided for in Article 13. Either party may terminate thecontract in the event of force majeure in accordance with Article 19.
Welow undertakes to take out,with an insurance company known to be solvent, insurance in operating liabilityand professional liability, in order to cover the pecuniary consequences forthe customer and Beneficiaries of bodily, material and immaterial damage for which Welow would have to answer under this Contract.
A certificate from his insurance company specifying the object, duration and extent of the guarantee,the exclusions and the amount of the insured risk may be given to the Customerat his request during the execution of this contract once per calendar year.
The Parties cannot be held liable for the non-performance of their obligations under these general conditions of sale (with the exception of payment obligations), if this non-performance is due to an event of force majeure, as defined in Article 1218 of the Civil Code, it being understood that each of the Parties undertakes to limit as much as possible the harmful consequences for the other. The Party affected by theforce majeure event, subject to the sending to the other Party of a registered letter with acknowledgment of receipt within eight (8) days from the date ofoccurrence of the event, will be exempted from the performance of its obligationswithin the limit of the impediment, disturbance or limitation caused by theforce majeure event. The other Party will then, in the same way, be exempted from the performance of its own obligations, always within the limits of impediment, inconvenience or limitation. However, if the duration ofthe interruption due to force majeure is greater than two (2) months from the date of notification of the occurrence of the case of force majeure, the Contract may be terminated automatically and without judicial formality by the unaffected Party, subject to compliance with a notice period of thirty (30)days, notified by registered letter with acknowledgment of receipt to the defaulting Party. Explicitly, are considered as cases of force majeure those usually retained by the jurisprudence of theFrench courts and tribunals, as well as the following events: war, riot, fire,internal or external strikes, lockout, occupation of the premises of thecompany Welow, bad weather, earthquake, flood, water damage, legal orgovernmental restrictions, legal orregulatory changes in forms of marketing, accidents of any kind, epidemic, pandemic, illness affecting more than 10% of Welow's staff within a period oftwo (2) consecutive months, lack of energy supply, partial or total shutdown ofthe Internet network and, more generally, private or public telecommunications networks, road blockages and impossibilities of supply of supplies and any other case beyond the express control of the Parties preventing the normal performance of this Agreement.
Welow may include the Customer's name and logo in the list of its customers as well as a briefdescription of the services provided by Welow to the Customer. Welow undertakes to comply with the graphic charter previously communicated to it by the Client,if applicable.
The fact that one of the Parties does not invoke the application of a clause of the Contract shall not be construed as a waiver of the right to avail itself of that clause in thefuture.
The Parties declare these commitments sincere. As such, they declare that they have no information totheir knowledge which, if it had been communicated, would have modified the consent of the other Party.
The relations established bythe Agreement between, on the one hand, Welow, and the Customer, on the otherhand, are those of independent contractors, and the Agreement does not intend to establish any other relationship between them. The Contract does notconstitute an association, or a mandate given by one Party to the other Party. Each therefore refrains from making a commitment in the name and on behalf ofthe other. In addition, each Party remains solely responsible for its acts, allegations, commitments, services, products and personnel.
The Contract is concluded intuitupersonae. The Customer or Welow may not assign or transfer to a third party, all or part of the rights and obligations of the Contract, without the prior written consent of the other Party.
In case of difficulties ofinterpretation resulting from a contradiction between any of the titlesappearing at the head of the clauses and any of the clauses, the titles will be declared non-existent.
If one or more stipulations of this Agreement are held to be invalid or declared as such pursuant to a law, a regulation or following a final decision of a competent court, the other stipulations will retain all their force and scope.
This Agreement expresses the entirety of the obligations of the Parties. It cancels and replaces any agreement, contracts, oral or written, which may have been previously concluded between the Parties for the same purpose. No general or specific conditions contained in the documents sent or delivered by the Parties may be incorporated into this Agreement. No provision of the Agreement may be modified without an amendment being concluded and signed between the Parties to this Agreement.
All legal actions between the Parties will be foreclosed, unless otherwise provided by public order, if they have not been brought within two (2) years from the event giving rise to the right to action.
For the execution of this Contract and unless otherwise provided, the Parties agree to address all correspondence to their respective registered offices, in writing.
Clauses declared as surviving after the end of the Agreement, regardless of the cause, continue to applyuntil the end of their particular purpose. This applies in particular to clauses of liability, ownership, confidentiality.
In the event of difficulties of execution and before any judicial proceedings, each of the Parties undertakes to appoint two persons from its company, at the "General Management" level. These persons shall meet at the initiative of the most diligent Party within eight (8) days of receipt of the letter requesting a conciliation meeting. The agenda shall be determined by the Party initiating the conciliation. Decisions, if taken by mutualagreement and in writing, shall have binding value. This clause is legally independent of this Agreement. It continues to apply despite the possiblenullity, resolution, termination or annihilation of these contractual relations.
THIS CONTRACT IS GOVERNED BYFRENCH LAW. THIS IS THE CASE FOR SUBSTANTIVE AND FORMAL RULES, NOT WITHSTANDING THE PLACES OF PERFORMANCE OF SUBSTANTIVE OR ANCILLARY OBLIGATIONS. IN THE EVENT OF A DISPUTE, EXPRESS JURISDICTION IS ATTRIBUTED TO THE COMMERCIAL COURT OF PARIS, NOT WITHSTANDING MULTIPLE DEFENDANTS OR THIRD-PARTY CLAIMS, EVEN FOR EMERGENCY PROCEDURES OR FOR PROTECTIVE PROCEEDINGS, IN SUMMARY OR BY REQUEST. IN THE EVENT OF A CONTRADICTION BETWEEN DOCUMENTS OF A DIFFERENT NATURE OR OF DIFFERENT RANK, ITIS EXPRESSLY AGREED BETWEEN THE PARTIES THAT THE PROVISIONS CONTAINED IN THE DOCUMENTS OF HIGHER RANK SHALL PREVAIL FOR THE OBLIGATIONS IN CONFLICT OF INTERPRETATION.
These terms and conditionscame into effect on 27th September 2023