General Conditions of Use

Article 1. DEFINITIONS

In the remainder of these general conditions, each of the following expressions will take the meaning of its definition, namely: 

  • Corrupt Act means the voluntary act, committed directly or indirectly through any person such as a third party intermediary, of (a) giving, offering, promising to, or (b) soliciting or accepting from, anyone (including any Public Official), for his own account or the account of a third party, any donation, gift, invitation, remuneration, or thing of value, which would be or which could be perceived as an inducement to corrupt, or as a deliberate act of corruption, in all cases with a view to inducing a person (including any Public Official) to exercise his functions in an abusive or dishonest manner and/or to obtain an undue advantage.
  • Anomaly means:
    • either a malfunction of the Software, reproducible by MADIASOFT preventing its use in accordance with the documentation or, failing that, the validation of the results obtained during the tests of the Service by the Client, prior to subscription.
    • or, if provided for in the special conditions, a malfunction of the adaptations, reproducible by MADIASOFT preventing its use in accordance with the specifications of said adaptations.
  • Affiliate means any entity controlled by the Client (the term “control” having the meaning given to it by Article L 233-3 of the French Commercial Code).
  • Customer or subscriber: the natural or legal person having subscribed to a MADIASOFT service
  • Special conditions: means the quote serving as a purchase order or the online purchase order, both of which are subject to these General Conditions .
  • General Conditions: means this document.
  • Contract : means these General Conditions, the Special Conditions and any annexes thereto.
  • Effective Date: Means the effective date of the Contract as indicated on the signature page of the purchase order or, failing that, the date of signature of the purchase order.
  • Documentation: means the description of the functionalities and the instructions for use of the Software. It is provided in electronic form in French. Any other documentation is excluded from the scope of the Contract, in particular commercial documentation and training documentation.
  • Syntec Index : Index used to measure the evolution of the cost of labor, mainly of an intellectual nature, for services provided.
  • Additional Services: Refers to additional services to the Service, which do not require specific developments. These services include analysis, configuration and training offered by MADIASOFT.
  • Software Package: set of functionalities of one or more programs and their Documentation, designed to be provided to several users for the same use. Under the Contract, the Software Package also includes all updates from the publisher and, unless otherwise specified, all specific developments ordered by the customer.
  • Services: Refers to the standard application functionalities delivered online as well as Updates and Support, billed in the form of a subscription or consumption statements.
  • Influence peddling means the voluntary act of (i) giving, offering or promising to anyone (including any Public Official), or (ii) accepting from anyone (including a Public Official), directly or indirectly, any donation, gift, invitation, remuneration, or thing of value, for one's own account or that of a third party, in all cases with a view to abusing or having abused one's real or supposed influence and obtaining a favorable decision or an undue advantage from a Public Official.

Article 2. SCOPE OF APPLICATION

These General Conditions of Use (GCU) constitute, in accordance with article L 441-6 of the French Commercial Code, the sole basis of the commercial relationship between the parties (“the General Conditions”).

They apply, without restriction or reservation, to all services provided by the company MADIASOFT. 

Their purpose is to define the conditions under which the company MADIASOFT provides services to professional Clients (“the Clients” or the “Client”) who request them, by direct contact, electronically or via paper media.

These General Conditions apply, without restriction or reservation, to all services provided by MADIASOFT to Customers, and will prevail, where applicable, over any other version and over the general conditions of purchase or other of the Customer regardless of the clauses that may appear in the Customer's documents. 

These General Conditions, supplemented by any special conditions and annexes, constitute the Contract.

These General Terms and Conditions are accessible at any time online, on the website www.madiasoft.com.  They come into force as soon as they are posted online and cannot apply to contracts signed prior to said posting. The version of the General Terms and Conditions applicable to the Client is the one in force on the website on the date the Contract is signed.

MADIASOFT reserves the right to modify the General Conditions from time to time. It will inform the Client by email within ten (10) days. Upon receipt of notification of the change to the General Conditions, and if the new version of the General Conditions does not suit the Client, the Client will have thirty (30) days to terminate the contract, failing which the new General Conditions will apply and cancel the previous ones.

Article 3. CUSTOMER INFORMATION 

It is the Client's responsibility to ensure: 

  • The suitability of the Service to its own needs, in particular on the basis of the information provided during the demonstrations and its own test period of the service; 
  • That he has the necessary skills to access and use the Service. It is the Client's responsibility to verify, in accordance with professional practice, the results obtained, in particular using the Documentation and the Service tests.

In accordance with current regulations, these General Conditions are systematically communicated to any Customer who requests them, to enable them to place an order with MADIASOFT

Any order for the MADIASOFT Company Service implies, on the part of the Client, full and complete acceptance of the Contract.

Article 4. CONTRACTUAL DOCUMENTS

The Contract consists of the following contractual documents: 

  • These General Conditions; 
  • The Special Conditions; 
  • Any annexes: List of correspondents, Business continuity plan

Article 5. ADDITIONAL SERVICES

The Contract does not cover additional Services recommended by MADIASOFT or requested by the Client to meet its specific needs. For example, consulting, training, and advisory services will be the subject of a separate contract between the Client and MADIASOFT.

Article 6. DURATION, RENEWAL 

This Contract is concluded for an initial period of one year, renewable by tacit agreement. 

This Agreement shall enter into force on the Effective Date as determined on the signature page and shall remain in force for the duration of the provision of the Service. 

Article 7. TERMINATION OF THE CONTRACT

In the event of termination, whatever the cause, the Customer will cease to use the Service as of the date of termination of the Contract. In addition, the latter will be liable to MADIASOFT for invoices unpaid at the date of termination.

Termination, or the end for any reason whatsoever, of this Contract does not give rise to the reimbursement of sums collected by MADIASOFT

The Client is informed that termination of the contract means the initiation of the procedure for erasing this data as defined in the RESTITUTION OF DATA article.

  1. Termination for breach

In the event of a breach by one of the Parties of any of the obligations imposed on it under the Contract, the other Party may formally notify it to remedy this breach within a maximum period of thirty (30) days, by email.

If at the end of this period of thirty (30) calendar days, the breach has not been or could not be remedied, the other Party may automatically terminate, by email, all or part of the Contract, without prejudice to any damages to which it may be entitled.

Upon receipt of the Customer's termination request by email, MADIASOFT will send an acknowledgment of receipt. The burden of proof that MADIASOFT has received the termination request rests with the Customer.

  1. Termination for customer convenience

Unless otherwise stipulated in the special conditions, the Customer has the right to terminate the Contract at any time, subject to expressly notifying MADIASOFT of its intention. However, one month's notice starting from the date of receipt of the termination request is required before it takes effect. 

Upon receipt of the Customer's termination request by email, MADIASOFT will send an acknowledgment of receipt. The burden of proof that MADIASOFT has received the termination request rests with the Customer.

After a period of eight days, no copies can be provided.

  1. Termination for convenience of MADIASOFT

MADIASOFT reserves the right to terminate the Contract. This termination will take effect on the expiry date of the current period, subject to mandatory 3 months' notice.

Article 8. RESTITUTION OF DATA

Upon expiry or termination of the Contract, access to the Service is closed on the last day of the Service. The Customer must therefore have, before this deadline, (i) recovered the Customer Data accessible through the functionalities of the Service or (ii) requested from MADIASOFT the return of a copy of the last backup of the Customer Data. Unless otherwise stipulated in the special conditions, any return of a copy of the last backup of the Customer Data by MADIASOFT will be made in a standard market format chosen by MADIASOFT and will be made available to the Customer in the form of a download or, if the volume is too large, by sending an external medium, as part of a service billable at the current rate. Unless otherwise stipulated in the special conditions, from the sixtieth (60th) day from the date of termination of the Contract, the process of erasing the Customer Data will be initiated in order to render them unusable. This deletion will be carried out on production data as well as on backed-up data, depending on the retention periods of the backups.

Article 9. RATES

The Service is provided at the rate specified in the specific conditions or, failing that, at the service rates in effect on the day the Contract is signed by the Client.

Current rates are expressed in euros.

The price invoiced to the Customer is the price excluding VAT to which is added the VAT displayed including VAT on the invoice sent by MADIASOFT to the Customer.  

The Client acknowledges having been informed of the pricing method and the price of the service which appear in particular on the “Quote serving as order form” or in the online order form.

Article 10. INVOICING AND PAYMENT TERMS

The Service will be invoiced as soon as it is made available. MADIASOFT reserves the right to issue invoices electronically. Unless otherwise specifically provided in the Special Conditions, the Service will be invoiced by monthly direct debit from a bank located in France or the French Overseas Territories: 

  • monthly, due date, when it is a subscription; 

Or 

  • monthly in arrears when it comes to consumption.  

The first billing for the subscription will take place on the date MADIASOFT communicates the access codes to the Service to the Customer (Effective Commissioning), or failing that, on the first day of the following month. Billing for the Service will be carried out by MADIASOFT on the basis of calendar periods and not anniversary periods. Where applicable, the first and/or last billing will be issued pro rata.

MADIASOFT invoices relating to the Service (including for online orders) will be paid by the Customer by direct debit without discount thirty (30) days from the invoice issue date. The Customer undertakes to provide their bank details (IBAN and BIC) and to complete the SEPA Mandate in paper or electronic form. From the time the SEPA Mandate is set up and in the event that the Customer signs several contracts in succession and chooses to pay the amounts due to MADIASOFT by direct debit each time, they accept that each of these contracts is governed by a single, common direct debit authorization, the amount of which varies accordingly, depending on the additions and deletions of contracts over time. 

Any late payment will automatically incur, on the one hand, late payment penalties equal to three (3) times the legal interest rate and calculated on the amount excluding tax of the sums remaining due, and on the other hand, compensation for recovery costs in the amount of €40.00, starting from the day after the date of payment of the invoice.

Non-payment of an invoice by the Customer 15 days after sending a formal notice to perform, which has remained, in whole or in part, without effect, is considered a serious breach which authorizes MADIASOFT to terminate the contract under the conditions defined in the TERMINATION above. The formal notice may be notified by email with acknowledgment of receipt.

In the event of suspension of the contract for non-payment, the Customer will bear account reactivation costs equivalent to one twelfth of the value of the annual contract. 

It is recalled that the Service invoiced does not include telecommunications charges, Internet connection charges or any other charges caused by access to the service which the Customer will otherwise assume in their entirety and under their full responsibility.

MADIASOFT may review the unit price of the subscription to its service at the time of contract renewal provided that it has notified the Customer at least three months in advance in writing. If the Customer does not consent to the increase in the monthly subscription fees, the Customer may terminate the contract in writing in accordance with the conditions described in the TERMINATION . If MADIASOFT is not notified in writing, this contract will be renewed in its entirety, including the increases, with the Customer's consent being considered as acquired.

Article 11. PRICE REVISION

The applicable regulations on price revisions result from Articles L. 112-1 to L. 112-4 of the Monetary and Financial Code. Only clauses providing for indexations based on the price of goods, products or services directly related to the subject of the contract or to the activity of one of the parties are lawful.

MADIASOFT has chosen the Syntec index as the contract index.

Beyond the initial duration of the Service, MADIASOFT may modify, once per calendar year, the prices of the Contract. 

The amount of the revised royalty will be determined by applying the following formula: 

The price of a service may be revised at each contractual deadline according to a formula which takes into account the Syntec index. For example (negotiation area): P1=P0 x S1 /S0
Where P1 = revised price, P0 = original contractual price, S0 = Syntec reference index for the month of the date of signing the contract, S1= last index published on the revision date.

If the Customer refuses to increase the amounts invoiced, the Customer will be entitled to terminate the Contract under the conditions of the TERMINATION under the subtitle Termination for the Customer's convenience.

Article 12. CUSTOMER OBLIGATIONS

In order to enable the service to be carried out, the Client undertakes in particular: 

  • Refer to the Documentation before each request for intervention; 
  • To provide MADIASOFT with all necessary information requested by MADIASOFT for the understanding and resolution of the Anomalies and Malfunctions encountered;
  • Designate, within its organization, a competent contact person in charge of processing Anomalies and Malfunctions and ensure that they are available during any intervention by MADIASOFT; 
  • To facilitate access for MADIASOFT staff to all its facilities if necessary and to ensure MADIASOFT staff have free access to the premises and to provide them with a suitable contact; 
  • To install and administer its equipment and applications not supplied by MADIASOFT, as well as its networks.

The Customer acknowledges having been sufficiently informed of the terms of access, implementation and use of the service as well as the minimum recommended configuration. 

The Client also: 

  • undertakes not to distribute the Service, make it available to third parties or rent it except as otherwise provided in the specific conditions; 
  • undertakes not to alter or disrupt the integrity or execution of the Service or the data contained therein; 
  • agrees not to attempt to gain unauthorized access to the Service or the systems or networks associated with it. 
  • undertakes not to attempt to use any contractually unauthorized functionality of the KAFINEA Service which is accessible to it

In the event that MADIASOFT notes a breach of these terms and conditions, it reserves the right, without notice and without formal notice, to suspend the service provided, to delete any information likely to contravene the aforementioned regulations and to terminate this contract under the conditions defined in the TERMINATION article .

Article 13. DECLARATION 

The Client declares that he/she is fully aware of the Internet, its characteristics and its limits, and acknowledges in particular: 

  • That data transmissions on the Internet only benefit from relative technical reliability, as they circulate on heterogeneous networks with diverse technical characteristics and capacities which are sometimes saturated at certain times of the day. 
  • That certain specific networks may depend on particular agreements and be subject to access restrictions which will not allow access to the Service. 
  • That users of the Service may be located anywhere in the world, and that the content of the Service may be reproduced, represented or more generally distributed without any geographical limitation. 
  • That data circulating on the Internet is not protected against possible misappropriation and that therefore the communication of passwords, confidential codes and more generally of all sensitive information is carried out by the Client at his own risk. 
  • That the provision of the content of the Service to users may be subject to unauthorized third-party intrusions and, as a result, be corrupted despite the granting by MADIASOFT of password-protected access. 

Article 14. INTELLECTUAL PROPERTY

MADIASOFT owns all applicable intellectual property rights relating to the Service or, where a third party owns the intellectual property, declares that it has obtained from that third party the right to market or distribute the Service. This Agreement does not grant the Customer any ownership rights relating to the Service, its technology or the intellectual property rights held by MADIASOFT or by a third party.

The Customer undertakes not to infringe, directly or indirectly, or through third parties, the property rights of the MADIASOFT Service. Indeed, the provision of the Software by MADIASOFT in no way entails the transfer of property rights to this Software and to any of its elements, nor to the associated documentation, which remain the exclusive property of MADIASOFT.

Consequently, the Client is prohibited from any adaptation, modification, even partial, transformation, decompilation, functional analysis or arrangement, transcription and translation into other languages of the software, for any reason whatsoever.

The Client is prohibited from using MADIASOFT's services for purposes other than those described herein, and in particular from making them available to third parties without prior written authorization.

The Customer agrees to bear the cost of acquiring, setting up and maintaining the means of accessing the service as well as the costs of installing and implementing the service.

Article 15. MADIASOFT STAFF

As part of the Contract, additional Services may also be requested by the Client, such as analysis, configuration, and training. This may require MADIASOFT personnel to be present at the Client's premises.

  1. Management

MADIASOFT personnel assigned to the performance of the Services remain under the administrative control and sole hierarchical and disciplinary authority of MADIASOFT for the entire duration of the Contract. 

MADIASOFT ensures the supervision and control of its personnel, including when the Services are carried out on the Client's premises. 

  1. Skill

MADIASOFT undertakes to provide sufficient staff with the required skills for the performance of the Services. 

  1. Health and safety

MADIASOFT undertakes to take all necessary steps to ensure that its staff, when on the Client's premises, comply with the Client's internal regulations and the provisions applicable to external companies present on said premises, in particular those relating to health and safety. The Client, for its part, undertakes to bring these provisions to the attention of MADIASOFT.

The Client and MADIASOFT will comply with the provisions of decree no. 92158 of 20.02.1992 setting out the specific health and safety requirements applicable to work carried out by an external company on the Client's premises.

In the event that, within the framework of the Services, MADIASOFT personnel use the Client's information system, MADIASOFT undertakes to do what is necessary to ensure that its personnel specifically comply on this occasion with all provisions gathered in the document: in good business practices, good practices and usage communicated by the client and any document communicated in the special conditions, in particular the Charters of good use, and internal circulars.

Article 16. OBLIGATIONS AND GUARANTEES OF MADIASOFT

MADIASOFT undertakes to make every effort to carry out the services provided for in the contract with the utmost care and within the specified timeframes. MADIASOFT is only bound by an obligation of means and not of results, provided that the Client has properly fulfilled its obligations. 

MADIASOFT undertakes to perform the Service in accordance with the Rules of the art of its profession and in particular to provide its know-how, experience and expertise, as well as all equipment and software.

MADIASOFT is solely responsible for the means and methods it implements within the framework of this document.

MADIASOFT will comply with all laws and regulations (and any amendments thereto) applicable to the provision of the Service and the performance of the Services.

MADIASOFT undertakes to notify the Client of any problem arising during the performance of the Services.

MADIASOFT guarantees compliance with these provisions by its staff and any subcontractors.

MADIASOFT undertakes to return to the Client any Client Data as well as any equipment, tools or other elements provided to it by the latter in the context of the performance of the Service, at the request of the Client and at the latest, upon expiry or termination, for any reason whatsoever, of the Contract.

MADIASOFT declares and guarantees that it holds full ownership of the Software Package, including, as a reminder, unless otherwise specified, all specific developments ordered by the customer.

  1. Duty of loyalty

The Parties agree, throughout the duration of the Contract, to faithfully perform their respective obligations and to seek in good faith all possible solutions likely to achieve a rapid and balanced resolution of any problems or difficulties that may arise during the performance of the Contract.

  1. Fight against undeclared work 

MADIASOFT hereby undertakes to comply with French regulations relating to the fight against undeclared work or any other similar regulations applicable when the Services are performed in another territory. 

MADIASOFT will decide alone, under its responsibility, the resources, tools, methods and means of execution necessary to carry out the service ordered.

Under no circumstances shall MADIASOFT be held liable for any damages of any kind, including operating losses, loss of data, or any other financial loss resulting from the use or inability to use the system, equipment, or services provided. The Customer assumes all risk of loss or damage that may affect its equipment or files except those mentioned in this contract.

Article 17. FINANCIAL REGULATIONS 

  1. Fight against corruption 

MADIASOFT declares and guarantees to the Client at all times, during the term of the Contract:  

  1. That it is aware of all legislation applicable to the Contract relating to the fight against corruption, and that it has implemented rules and procedures enabling it to comply with said legislation and adapt to their future developments;
  2. That neither MADIASOFT nor any of the persons it controls (these “controlled” persons including in particular directors, employees and agents) has committed or will commit, directly or indirectly, any Act of Corruption;
  3. That it has put in place appropriate rules, systems, procedures and controls aimed at preventing the commission of Corrupt Acts, by itself, its agents or other intermediaries and controlled persons, and at ensuring that any evidence or suspicion of the commission of a Corrupt Act will be thoroughly investigated, treated with appropriate diligence and reported to the Client. Evidence of the existence of these rules, systems, procedures and controls will be provided to the Client upon request;
  4. That neither MADIASOFT nor any of its agents, intermediaries or controlled persons is prohibited (or treated as such), by a governmental or international body, from responding to calls for tender, from contacting or working with this body due to proven or alleged Acts of Corruption;
  5. Fight against conflicts of interest

Throughout the duration of the Contract, MADIASOFT declares and guarantees that it will not maintain any personal or professional relationships that would contravene its professional duties or place it in a situation of conflict of interest with respect to the Client. 

MADIASOFT undertakes to notify the Client without delay of any conflict of interest relating to the commercial relationship between the Parties to which it may be subject. If the Client considers that the conflict of interest declared by MADIASOFT is incompatible with the continuation of the Contract, it may terminate the Contract automatically, without notice and without compensation. 

  1. Fight against influence peddling

MADIASOFT and its agents are not affiliated with, nor should they interact with, any Public Official, government, or government entity in connection with the services provided to the Client. For the purposes of this section, the term “Public Official” includes all elected officials, dignitaries, candidates for public office, members of royal families, magistrates, civil servants, or employees, regardless of rank, or any person belonging to or acting on behalf of:

  • a government (foreign, national or local) including any department, body, regulator, or any of their agencies or instrumentalities;
  • a government department or public authority (including, but not limited to, customs or tax authorities, embassies and any permit-issuing body);
  • a local or regional public service;
  • a state-owned or controlled enterprise (including, but not limited to, state-owned or controlled enterprises, public hospitals, universities, sovereign wealth funds, or any other state-sponsored entity);
  • a political party; or
  • an international court or a public international organization (eg, the United Nations).

Article 18. GUARANTEE AGAINST INFRINGEMENT  

In the event of a claim relating to infringement by the Software of an intellectual property right in France, MADIASOFT may, at its option and at its expense, either replace or modify all or any part of the Software, or obtain a user license for the Customer, in order to allow it to use the Service, provided that the Customer has complied with the following conditions: 

  • That the Client has accepted and performed all of its obligations under this document, 
  • That the Client has notified MADIASOFT, within eight days, in writing, of the action for infringement or the declaration preceding this action, 
  • That MADIASOFT is able to ensure the defense of its own interests and those of the Client, and to do this, that the Client collaborates loyally with MADIASOFT by providing all the elements, information and assistance necessary to carry out such defense. 

In the event that none of these measures is reasonably possible, MADIASOFT may unilaterally decide to terminate the Contract and reimburse the Client for the royalties paid over the last twelve (12) months of use of the Service. The provisions of this article define the entirety of MADIASOFT's obligations regarding patent and copyright infringement due to the use of the Software Package.

Article 19. RESPONSIBILITIES OF MADIASOFT

MADIASOFT cannot be held liable in the event of non-performance or poor performance of its obligations which is due either to the Client's actions, or to the insurmountable and unforeseeable actions of a third party to the contract, or to a case of Force Majeure, an event or incident beyond the control of MADIASOFT. MADIASOFT cannot be held liable for any damage resulting from this delay.  

The Customer agrees that MADIASOFT shall not incur any liability for any loss of profits, commercial disruption, claims that the Customer may suffer; or claims or demands made against the Customer by any third party whatsoever.

The Customer agrees that this contract is not intended to establish full and entire liability for loss, damage or harm resulting directly or indirectly from the use of the system and services, which have been specifically designed to prevent them. In any event, in the event that it is proven that MADIASOFT is liable for loss, damage or harm in the context of this contract, the Customer agrees that, whatever the grounds for its claim, and the procedure followed to implement it, MADIASOFT's possible liability due to the performance of the obligations provided for in this contract, will be limited to an amount not exceeding the amount of the annual subscription fee of the Customer.

This amount does not constitute a penalty but compensation. This compensation constitutes the exclusive remedy in the event of defective services or equipment, and the provisions of this section apply, in the event of loss, damage or injury, whatever the cause or origin, directly or indirectly to persons or property in the performance or non-performance of MADIASOFT's obligations, by negligence or otherwise, by MADIASOFT, its agents or employees. 

The above provisions are intended to establish the maximum amount recoverable by the Customer and to determine MADIASOFT's liability, i.e. the amount of the annual subscription fee.

If the Client wishes to have more extensive coverage, he may be offered specific insurance coverage, the cost of which would be separate from the cost of this contract. 

It is understood that, by subscribing to this contract, the Client waives the right to rely on advice or advertising from MADIASOFT. The Client accepts that any representation, promise, condition, incentive or guarantee, whether explicit or implicit, including marketing or fair and merchantable quality, not mentioned in writing in this contract, cannot bind either party. 

For all requests sent by email, MADIASOFT reserves the right to contact the customer and ask for confirmation of the said request by registered letter with acknowledgment of receipt.

Article 20. CUSTOMER LIABILITY

The Customer guarantees that it has all the authorizations to use and/or distribute in the territory, the information and data of any nature, hosted by MADIASOFT and is solely responsible for the consequences of their availability to the public, even if restricted on the Internet. In particular, it is solely responsible for any damages suffered or incurred by MADIASOFT, as the case may be, due to the presence of illicit data on the Customer's pages, such as defamatory and racist remarks.   

  • In the event of a breach of the provisions of the law of June 21, 2004 (“LCEN”) noted by a judicial authority within the meaning of this same law, or in the event of an injunction issued by the judicial authority to remove disputed content, MADIASOFT may take all necessary measures to remove this content or prevent access to it. It will inform the Client thereof. 
  • In the event of an amicable complaint or formal notice from a third party addressed to MADIASOFT considering that the content is illegal or causes it harm, MADIASOFT will inform the Client without delay.
    • In the absence of deletion of the disputed Content by the Client or by MADIASOFT – due to the Client's refusal or the latter's silence – the Client guarantees MADIASOFT against any recourse and award of damages to which MADIASOFT could be exposed as a result of this claim. 
    • However, by way of derogation from the foregoing, MADIASOFT may take any useful measure to remove access to the disputed content or to make access impossible, if the content appears to be manifestly illicit and will inform the Customer thereof. In the latter case, MADIASOFT will inform the Customer as soon as possible. 

Suspension or interruption of the content for the reasons mentioned above will not entitle MADIASOFT to any compensation to the Customer. Furthermore, the Customer will remain liable to MADIASOFT for the full agreed price throughout the period of suspension or interruption. 

Article 21. CLIENT AUDIT 

The Client may request additional explanations from MADIASOFT if the documents provided do not allow it to verify compliance with MADIASOFT's obligations as a subcontractor under the Contract. The Client must then submit a written request to MADIASOFT, by email, in which it justifies its request for additional explanation. MADIASOFT undertakes to provide the Client with a response as soon as possible. 

Upon receipt of the Client's request, MADIASOFT will send an acknowledgment of receipt. The burden of proof that MADIASOFT has received the audit request rests with the Client.

If, despite MADIASOFT's response, the Customer questions the veracity or completeness of the information transmitted or in the event of imminent risks to the security of the Personal Data, the Customer may carry out an on-site audit subject to compliance with the following conditions: i. the Customer makes a written request for an on-site audit to MADIASOFT, by registered letter with acknowledgment of receipt, justifying and documenting its request; ii. MADIASOFT undertakes to provide a response to the Customer specifying the scope and conditions for carrying out the on-site audit. Since the security of MADIASOFT's information system and data centers relies on their restricted access, the scope of an on-site audit will be limited to MADIASOFT's processes enabling the Service to be operated as a subcontractor of the Personal Data processing entrusted by the Customer to MADIASOFT. The duration of the audit must not exceed two (2) working days, which will be invoiced by MADIASOFT to the Customer according to the service rates in effect at the time the audit is carried out; iii. This audit mission may be carried out by the Client's internal auditors or may be entrusted to any MADIASOFT at the Client's choice, not a competitor of MADIASOFT; iv. The auditors must make a formal commitment not to disclose the information collected at MADIASOFT regardless of the method of acquisition. The signature of the confidentiality agreement by the auditors must be prior to the audit and communicated to MADIASOFT. 

As part of the audit, MADIASOFT will provide access to its premises, and generally to the documents and people necessary for the auditors to conduct the audit under satisfactory conditions. It is understood that this audit must not result in disrupting the operation of the Service. 

Article 22. COMPETENCE AND AUTHORITY OF THE SIGNATORY

The person signing this contract on behalf of the Client undertakes to have the authority to sign it and allow the installation of the systems described herein as well as the authority to contract for the services provided.

Article 23. USE OF THE SERVICE

MADIASOFT's unlimited plans are designed to allow its Customers to use its services normally without having to worry about the number of users or constant price changes. To guarantee this comfort, MADIASOFT reserves the right to classify as abusive any use of the service where the cost of the necessary resources (CPU, RAM, storage, etc.) would be higher than 80% of the sales price excluding taxes invoiced to the customer and this for more than two consecutive months.

In the event of abusive use of its services depending on the package to which the Customer has subscribed, the latter will be contacted by the MADIASOFT sales department who will offer to upgrade to a more suitable package. The Customer will of course be free to refuse and their service would then be suspended according to the terms of the TERMINATION article.

Article 24. PASSWORD, ENCRYPTION KEY AND SECURITY

In the event that the Customer subscribes to an encrypted remote backup offer for computer data :

a – Data backup

The Customer authorizes MADIASOFT to install backup software on its computers. The Customer's files are encrypted by the software before being transferred to MADIASOFT's servers. The hosted data is encrypted with a key for which only the Customer is the holder and responsible. It is the Customer's full responsibility to keep the encryption key that will have been defined during the initial commissioning. MADIASOFT does not keep the Customers' encryption keys. It cannot under any circumstances be held responsible for the loss of the encryption key without which the stored data cannot be used. MADIASOFT undertakes to host the computer data on its server and to ensure its security in their collected state. MADIASOFT guarantees that under no circumstances will the contents of the Customer's files be accessible to anyone without the express authorization of the Customer. 

b – Data restoration

Restitution of computer data as part of an encrypted remote backup service for computer data: MADIASOFT undertakes to restore the files present on its servers in the state in which the Customer sent them, provided of course that they have been included in its list of files to be saved. The Customer has taken note that it can at any time recover all or part of its computer data independently via the Internet network using the backup software provided by MADIASOFT. MADIASOFT can carry out the aforementioned restitutions via any physical medium of its choice against invoicing, which the Customer expressly accepts. MADIASOFT provides, upon acceptance of a quote by the Customer, the intervention of a technician to assist in the restoration of the restored files on the Customer's computer.

Article 25. CONFIDENTIALITY

The parties agree not to communicate to anyone, directly or indirectly, all or part of the information of any nature, commercial, industrial, technical, financial, nominative, etc., relating to the other party which has been communicated to them or of which they have become aware during the execution of this contract. This obligation will not apply if the communication of information to a third party is necessary for the execution of this contract, provided however that MADIASOFT guarantees compliance with this obligation of confidentiality by the third party. The obligation of confidentiality shall not concern information which is part of the public domain at the date of disclosure.

Confidential information does not include information which, in the absence of fault, is in the public domain; information which the receiving party was in possession of before its communication, without having received it from the other party; information which is communicated to the parties by third parties, without a condition of confidentiality; and information which each party develops independently.

The terms of this obligation are valid for the entire duration of the Contract and for two (2) years following its termination.

Article 26. ADVERTISING

MADIASOFT may use the Client's name to promote its Software Packages. The Client therefore agrees that MADIASOFT may refer to its name, company name, logo, or registered trademark of the Client on any media, including all MADIASOFT and partner websites worldwide. Furthermore, the Client may be asked to provide a testimonial about their Customer experience with MADIASOFT.  

The Client may, however, inform MADIASOFT by any written means and at any time of its refusal and/or request, where appropriate, the withdrawal of the aforementioned reference.

Article 27. ENTIRE AGREEMENT. PARTIAL INVALIDITY

These clauses, articles and specified schedules represent the entirety of the General Conditions and the contract. Any representation, promise, condition, inducement or guarantee, express or implied, oral or written, which is not mentioned in writing in these General Conditions will in no case give rise to new obligations under these General Conditions. The terms thus mentioned apply as they are, without modification except in writing as mentioned below. If any of the provisions of these General Conditions is declared null and void under a rule of law or a final judicial decision, it will be deemed unwritten. However, the other provisions herein will remain in full force and effect, and said General Conditions will remain in force.

The fact that one of the parties does not take advantage of a breach by the other party of any of the obligations referred to herein cannot be interpreted for the future as a waiver of the obligation in question.

Article 28. LANGUAGE OF THE CONTRACT AND APPLICABLE

By express agreement between the parties, these General Conditions and the operations resulting from them are governed by French law. 

They are written in French. In the event that they are translated into one or more languages, only the French text shall be authoritative in the event of a dispute. 

Article 29. FORCE MAJEURE

Neither party shall be liable for any delay or failure in the performance of its obligations hereunder if such delay or failure is due to the occurrence of a case of force majeure within the meaning of Article 1218 of the Civil Code. It is expressly agreed between the Parties that force majeure expressly concerns any event beyond their control, which could not reasonably have been foreseen at the time of entering into the Contract and the effects of which cannot be avoided by measures in accordance with the state of the art. 

In the event of the occurrence of such a case of force majeure, the execution of this contract will be suspended until the disappearance, extinction or cessation of the case of force majeure. However, if the case of force majeure continues beyond a period of thirty (30) days, the parties must come together to discuss a possible modification of the Contract.

The deadlines provided for in this contract will be automatically postponed depending on the duration of the force majeure event.

In the absence of an agreement between the parties within thirty (30) days and if the case of force majeure continues, each of the Parties will have the right to terminate this contract automatically, without any compensation being due by either party, by email addressed to the other party.

However, if upon the occurrence of the force majeure event, it appears that the delay justifies the termination of this contract, it shall be terminated automatically and the parties shall be released from their obligations.

Article 30. PERSONAL DATA

Definitions  

In all cases where they appear with a capital letter, in the singular or in the plural, in this Article, these terms will have the following meaning: “ Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing. Where the purposes and means of such processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be designated by Union or Member State law. “Processor” means the natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the controller. “Applicable regulations” means all applicable European Union directives and regulations governing the use and/or processing of personal data, including in particular the GDPR and any associated national laws. “EEA” means the European Economic Area . “GDPR ” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, repealing Directive 95/46/EC (General Data Protection Regulation). “Personal data” means any information relating to an identified or identifiable natural person (“Data Subject”). An “identifiable natural person” one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier, or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. “Customer Personal Data” means any data, information or documents provided, entered or transmitted by or on behalf of the Customer in the Services, which may include data relating to its customers and/or employees. “Processing” means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction, and “process”,  “processed” and “processes/processes” shall be construed accordingly. “Supervisory Authority” means an independent public authority established by a Member State which is responsible for the processing of personal data.

  1. Processing of Personal Data 

MADIASOFT as subcontractor of the Client's Personal Data 

The Parties acknowledge and accept that the Client is the Data Controller of the Personal Data collected and processed within the framework of the execution of the Contract and that it assumes sole responsibility for the compliance of said Processing with the applicable Regulations.  

As part of the execution of said Contract, MADIASOFT, in its capacity as Subcontractor, undertakes to process the Personal Data on behalf of the Data Controller under the conditions defined below:  

The Client guarantees and declares: 

  • That it complies with the applicable Regulations and ensures that its instructions to MADIASOFT for the Processing of Personal Data comply with them; 
  • That it is authorized, in accordance with the applicable Regulations, to communicate to MADIASOFT the Personal Data of the Persons Concerned by said Processing;  
  • That it will obtain, where applicable, the consents of the Persons Concerned by said Processing, in compliance with the applicable Regulations, in order to:
    • To communicate to MADIASOFT the said Personal Data of the Client; 
    • To allow MADIASOFT to process the Client's Personal Data for the purposes of executing said General Conditions and; 
    • That MADIASOFT may communicate said Personal Data: (a) to its service provider partners and affiliated companies; (b) to any public authority where applicable; (c) to any third party in the context of the execution of a legal or regulatory obligation incumbent on MADIASOFT; and (d) to any other person entitled to request communication of the information, including when the recipients of the Personal Data are located outside the European Economic Area. 

MADIASOFT guarantees and declares that when it acts as a Subcontractor, it does not process the Client's Personal Data: 

  • As far as this proves necessary for the execution of the General Conditions and/or;
  • Following the Client's written instructions. 

MADIASOFT as the Data Controller of the Client's Personal Data 

MADIASOFT guarantees and declares that when it acts as Data Controller, it processes the Client's Personal Data in accordance with the applicable Regulations and its Privacy Policy available at the following address https://www.madiasoft.com .

Analysis of Personal Data 

The Customer is informed and accepts that MADIASOFT may, in its legitimate business interest, collect, store and use the Customer's Personal Data generated and stored during its use of the Service (including the Customer's Personal Data, which MADIASOFT processes as Data Controller as stipulated in the MADIASOFT Privacy Policy available at the following link: https://www.madiasoft.com ) in order to:

  • To send the Customer advertising or marketing messages (including in-product messages or banner message windows) or information that may be useful to the Customer, depending on its use of the MADIASOFT Services and Products; 
  • To carry out research and development in order to improve the Services, products and applications of MADIASOFT and/or its Affiliates; 
  • To develop and provide existing and new services and functionalities (including statistical analyses, comparative analyses or forecasting services);  
  • To offer the Customer location-based services (e.g. location-related content) for which MADIASOFT collects geolocation data in order to provide the Customer with a relevant experience, 

it being understood that MADIASOFT ensures that this collected information is processed in a pseudonymous manner and is only displayed in its entirety and not in connection with the Customer or any other Data Subject. The Customer may at any time request MADIASOFT to cease the use of the Customer's Personal Data as described in this paragraph by contacting MADIASOFT at the following address: contact@madiasoft.com. 

  1. MADIASOFT’s Obligations to the Client

MADIASOFT undertakes to:

  • Assist the Client, to the extent possible, through appropriate technical and organizational measures, in fulfilling its obligation to respond to individual requests to exercise the rights of Data Subjects; 
  • Assist the Client, as far as possible and on the basis of the information available to MADIASOFT, in order to enable the latter to meet its obligations relating to:
    • To notifications to the Supervisory Authorities; 
    • In prior consultation with these Authorities; 
    • To the communication to the Persons concerned of any breach and; 
    • To privacy impact analyses. 
  1. obligations regarding its staff

MADIASOFT undertakes to: 

  • Take all reasonable measures to ensure that any employee having access to Personal Data complies with their obligations under these terms; 
  • Ensure that access to Personal Data is strictly limited to employees who need to access it for the exclusive purposes of executing the General Conditions;  
  • Ensure that employees authorized to process Personal Data have undertaken to respect the confidentiality thereof, or are bound by an appropriate legal obligation of confidentiality. If required by applicable Regulations, MADIASOFT will appoint a Data Protection Officer and make available information relating to said appointment.
  1. Security and audit 

MADIASOFT implements and maintains technical and organizational security measures, in accordance with recognized best practices in IT security and appropriate to the risks presented by the activity of Processing personal data, to protect Personal Data against any unauthorized or illicit Processing as well as the loss, alteration, or accidental communication to a third party of said Data.  

Subject to any existing confidentiality obligation with respect to a third party, MADIASOFT undertakes to make available to the Customer all information reasonably necessary to enable it to demonstrate compliance with its own obligations under this Agreement. In this respect, MADIASOFT may, in particular, provide the Customer with any security audit report prepared by itself or any independent auditor. Failing this or at the request of the Customer, MADIASOFT undertakes to allow independent audits to be carried out, including inspections by a third-party auditor with the necessary qualifications, mandated by the Customer and approved by MADIASOFT, at the Customer's expense. 

  1. Data breach 

MADIASOFT will notify the Client if it becomes aware of a breach of security rules resulting in the accidental or unlawful destruction, loss, alteration, unauthorized communication to a third party of Personal Data or unauthorized access to such data, resulting from an act or omission on the part of MADIASOFT or its subsequent subcontractors. 

  1. Return and destruction 

At the end of the General Conditions and at the request of the Client, MADIASOFT will delete or return to the Client all Personal Data concerning the Client and will destroy all existing copies of this Data, unless MADIASOFT is under a legal obligation to retain it or has another legitimate business reason to do so. 

  1. Use of subsequent subcontractors 

MADIASOFT may not use a subsequent subcontractor to carry out Processing on behalf of the Client without its prior written authorization. If the use of a subcontractor is accepted by the Client, MADIASOFT will ensure that the obligations under this document are transferred to said subsequent subcontractor.  

Article 31. AMICABLE SETTLEMENT OF DISPUTES AND COMPETENT COURT

In order to jointly find a solution to any dispute to which this contract may give rise concerning its validity, interpretation, execution, non-execution, interruption, termination, consequences and follow-ups, the parties agree to meet within 15 days of receipt of a letter with acknowledgment of receipt, notified by one of the two parties. A mediator will be appointed at the initiative of the most diligent party. The mediation costs will be borne equally by each of the parties.

In the absence of an amicable agreement between the two parties, the only jurisdiction recognized and whose jurisdiction is accepted by them is the Commercial Court of Paris, notwithstanding multiple defendants or third-party claims, even for emergency procedures or interim relief proceedings, in summary proceedings or by application.

Article 32. MISCELLANEOUS

None of the provisions of the General Conditions may be interpreted as creating, between the Client and MADIASOFT, a mandate, a subsidiary, an agent or employee-employer relationship, each party acting independently.