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TERMS AND CONDITIONS OF APPLICATION SERVICES

TERMS AND CONDITIONS OF APPLICATION SERVICES

SaaS (v201501)

Odaseva Technologies SARL, limited capital of 70 000 Euros
54, rue des Moulineaux 92150 SURESNES Fax +33 972 335 562
Siret 751 464 264 00017 RCS 751 464 264 Nanterre France
Intra-community VAT Number: FR 90 751 464 264

Odaseva Technologies is a Software-as-a-Service (SaaS) provider. It is a company who offers online business-to-business application rental solutions for Clients (« Client ») from its portal, odaseva.com.

The Client hereby declares that he has received all the information necessary to use the Application Service – Odaseva Technologies SaaS.

1. DEFINITIONS

The terms beginning with a capital letter within the Agreement, whether used in the singular or in the plural, shall be defined as below.

Solutions is the subject of this Agreement and refers to the software products within the Application Service to which the Client has access.

Data refers to information contained in the Client’s database to which only the Client’s Users have access. The use of this Data is the subject of this Agreement.

Subscription Form refers to the form that specifies the Services Client will obtain from Odaseva Technologies. This form shall provide detailed information regarding the term of Services, any limitation and fees.

Logins refers to Client’s Users “login” and the “password” necessary to access the Application upon subscription.

Internet refers to the all the world-wide technological interconnected networks;

Software refers to any software provided by Odaseva Technologies to the Client, and in particular, the aforementioned Solutions.

Application Services – SaaS refers to the SaaS services offered by Odaseva Technologies which enable the Client to access to the aforementioned Solutions.

User refers to the person under the Client’s responsibility (agent, employee, representative, etc…) who has access to the Application Services on their computer as granted by the license contracted by the Client.

2. SUBJECT

This document constitutes the Terms and Conditions applicable to all the Application Services – SaaS and Solutions ordered from the odaseva.com portal, with the exception of other relevant documents such as the Client’s General Terms and Conditions of Sale, business proposals, flyers, catalogues etc…

3. OPPOSABILITY

The Client accepts the present general conditions for all subscriptions to Services and Solutions on the odaseva.com portal.

It is the Client’s responsibility to read and accept the relevant Terms and Conditions, and any other relevant contractual documents, as listed in Clause 4.

It is implicitly understood that the Client’s signatory has the power and legal authority to enter into the Agreement concerning the Solutions service, on behalf of the signing Company.

4. CONTRACTUAL DOCUMENTS

The aforementioned contractual documents are, in order of importance:

  • The present Terms and Conditions of Application Services Agreement;
  • Any particular negotiated conditions relevant to the specific nature of the service provided by Application Service – SaaS;
  • Subscription Form.

In case of a contradiction between one and/or several provisions included in any of these documents, the higher rank document shall prevail.

5. CHARACTERISTICS OF SERVICES AND SOLUTIONS – Access Conditions
5.1. APPLICATION SERVICE PROVISION – SaaS

The Client accepts that Odaseva Technologies grants them the following rights:

  • To access Odaseva Technologies servers in the conditions detailed below;
  • To be the end user of Odaseva Technologies Solutions;
  • To benefit from a set of services, including data hosting, application services maintenance and technical assistance.

Both parties agree that the following third-party operators are necessary in order to access the Application Services – SaaS and both parties agree to the points below:

  • The Client has chosen its telecommunications operator who is responsible for Client’s Internet access. Odaseva Technologies shall not be held responsible for any interruption or downtime of this service.
  • Odaseva Technologies uses the services of the companies Salesforce.com and Amazon (hosting data). All the characteristics and constraints pertaining to these companies’ services including their availability rates, the recovery time in case of service failure and the security level are transferred to the Client.
5.2. SUBSCRIPTION OF SERVICES AND SOLUTIONS

To subscribe to the Application Services – SaaS and to the Solutions, the Client must beforehand fill out a Client Account Form on the portal odaseva.com. The Client declares for this purpose, that all the information provided is accurate, complete and up-to-date.

Within the conditions of the article “License”, the Client agrees to subscribe to the Solution(s) of their choice, for a certain duration of time « Subscription Period » and for the price listed on the Subscription form.

If the Client wishes to add extra storage space or data processing subscriptions, they may purchase the above at the same price which will be calculated pro rata for the remaining Subscription Period. All additional subscriptions shall expire on the same date as the first storage space subscription.

Odaseva Technologies reserves the right to limit the number of User(s) who are authorized to contact the Client Technical Support team.

5.3. THE ACCESS TO THE SOLUTIONS

Only the designated User(s) shall have access to the odaseva.com services. The User shall be entitled to login at any time – with the exception of maintenance periods – through:

  • An ID assigned to each User(s) by Odaseva Technologies
  • And a password sent to the Client by Odaseva Technologies.

The Client will use the above Login information each time to connect to the odaseva.com Application Services.

The Login is designed to restrict access to the Solution(s) Object(s) to User(s) designated in the Client Agreement, so as to protect the integrity and availability of the Solutions, as well as the integrity, availability and confidentiality of the Client’s Data as provided by the Client’s User(s).

Logins are personal and confidential. They can only be changed upon the Client’s request or at the initiative of Odaseva Technologies, after having sent notification to the Client. The Client agrees to make reasonable efforts to keep the logins secret and not to disclose them in any form.

The Client is solely responsible for the use and safekeeping for the abovementioned Login codes. In case of loss or theft of one of the Logins, the Client will use the procedure put in place by Odaseva Technologies allowing him to recover his logins by e-mail (procedure described on the odaseva.com portal).

5.4. FREE TRIALS AND DEVELOPER EDITIONS

Odaseva Technologies can offer free trials subscriptions of Application Services – SaaS and Solutions for a maximum period of thirty (30) days, starting from the date of acceptance of the free trial request. Odaseva Technologies can offer developer editions subscriptions of Application Services – SaaS and Solutions for a maximum period of twelve (12) months, starting from the date of acceptance of the developer edition request.

The Application Services – SaaS provided for the Free Trial and the Developer Edition are only available to new Odaseva customers and permits a restricted access to certain features as data storage space for example. It cannot be altered, or personalized and Odaseva Technologies offers no guarantee of service. The Articles 6 and 7 shall not be applied to free trials and free editions.

You may not, without our prior written consent, access or use the Free Trial or the Developer Edition:

  • for production purposes, or
  • if You are Our direct competitor, or
  • to monitor the availability, performance or functionality of the Services, or
  • for any other benchmarking or competitive purposes.

You will not be eligible for the Free Trial or Developer Edition if you or your organization create(s) more than one account to receive additional benefits under the Offer. You will be charged standard rates for use of Odaseva services if we determine that you are not eligible for the Offer.

5.5 MAINTENANCE AND SUPPORT

The Client will benefit from maintenance and technical assistance for the Application Services.

In return, the Client agrees to pay the relevant fees for the duration of Subscription Period in a timely manner.

As mentioned in Clause 5.2, Odaseva Technologies reserves the right to limit the number of User(s) who are authorized to contact the technical assistance team.

6. DURATION AND TERMINATION
6.1. DURATION OF THE TERMS AND CONDITIONS

These Subscription Terms and Conditions shall take effect from the date of the first Subscription until the expiry or termination of all the Subscriptions granted in accordance with the present ones.

In case of any amendment to The Terms and Conditions of the Application Services – SaaS, the Terms and Conditions available at the time of purchase will be defined in case of problem.

Nonetheless, for tacitly renewed Subscriptions, Odaseva Technologies reserves the right to amend the Terms and Conditions of the Application Services–SaaS as it judges necessary. All amendments will take effect immediately.

In this case, Odaseva Technologies undertakes to inform the Client of the content of the amendments without delay.

In case of disagreement with the new Terms and Conditions of the Subscription, the Client may, within thirty (30) days, terminate his Subscription. The Client will be reimbursed in accordance with the Termination for cause. Otherwise, the new Terms and Conditions of the subscription shall be deemed as wholly accepted by the Client.

6.2. DURATION OF SUBSCRIPTIONS TO SOLUTIONS

The Solutions Subscriptions are executed on the date of confirmation by the Client on the odaseva.com portal. The Subscription will continue for the duration that is specified in the application form.

All Solutions Subscriptions are renewed automatically for successive periods of the same duration as the expiring subscription period. The applicable rates and conditions shall be those in force at the time of renewal.

If either party wishes to terminate this automatic renewal, a written notification (by email) must be received at least thirty (30) days before the Subscription’s expiry date.

6.3. TERMINATION FOR CAUSE

Either party will be entitled to terminate the Subscription Terms and Conditions, in case of:

Failure by either party to complete its contractual obligations. The contract shall then be automatically terminated by the other party thirty (30) days from the date the registered letter of formal notice was posted. The formal notice must indicate the reasons for wishing to terminate the Subscription.
Within the framework of applicable law, if the other party is subject to bankruptcy or other insolvency proceedings such as a termination payment, into receivership, liquidation or assignment for the benefit of creditors.
Upon termination, the Client shall cease all use of the login access codes to the Solutions and the Application Services. The reversibility procedure will be implemented in accordance with Clause 14.

6.4. REFUND IN CASE OF TERMINATION

In case of termination for cause by the Client, Odaseva Technologies will refund all amounts paid in advance for the duration of all subscriptions remaining after the effective date of termination.

In case of termination justified by Odaseva Technologies, the Client shall pay all the sums due that have not been paid for the duration of subscriptions, including after the effective date of the termination.

7. FEES AND PAYMENT
7.1. FEES

The Application Service SaaS’s applicable fees and commercial discounts shall be those in effect at the time of the registration of the Client’s Subscription form. Unless expressly requested or mentioned, all fees will be expressed in American dollars (USD) and are exclusive of taxes and bank charges, which are at the Client’s expense.

The Client agrees to pay all the fees indicated on the subscription forms. The fees are based on the Solutions purchased and not on their actual use. The payment obligations cannot be cancelled and the fees paid are not refundable.

7.2. TERMS OF PAYMENT

The fees will be billed in advance as stipulated on the subscription form. The full amount due must be entirely settled by the Client at the moment of returning the Subscription Form. Unless otherwise expressly specified, the Client shall pay all fees by wire transfer.

The Client is responsible for providing and maintaining records of his contact details and billing information, and undertakes to inform Odaseva Technologies of any changes.

All orders are payable in American dollars (USD).

7.3. LATE OR NON-PAYMENT

Without prejudice of eventual damages, the non-payment of an invoice by the Client on the due date shall automatically entail:

the application of an interest rate equal to three times the legal interest rate, without prior notification from the first day of delay;
the bank charges and the additional management (monitoring of the recovery, mail and telephone charges, representation of debit rejections);
the suspension of Application Services – SaaS until the full payment of the due sums, provided that Odaseva Technologies has sent the Client an 8 business days’ notice reminding him about his debiting account.
Odaseva Technologies will not enforce its rights vis-à-vis the payment defaults, if fees involved are subject to a reasonable dispute and if the Client cooperates diligently to solve the disagreement.

8. APPLICATION QUALITY

The Client is informed of the technical risks inherent to the Internet, and the interruptions of access that may result. Consequently, Odaseva Technologies is unable to guarantee the continuity of the Application Services, carried out remotely via Internet, which the Client recognizes.

The Application Services may occasionally be suspended due to maintenance work, necessary for the proper functioning of the Odaseva Technologies platform. Odaseva Technologies will not be held responsible for the possible impact of this situation on the Client’s activities.

9. LICENSE

Odaseva Technologies grants the Client a world-wide, corporate-wide, non-exclusive, non-transferable license to the Solutions Application, throughout the duration of the Subscription.

The license relating to Solutions Service is granted with the sole purpose of allowing the Client to use the Application Services – SaaS, and excludes any other unauthorized purpose.

The right-of-use includes the right to represent and implement the Solutions according to their destination, in the SaaS mode via a connection to an electronic communications network.

The Client shall in no case make the Solutions available to a third party, and is strictly prohibited to use the Service for any other purpose, especially any adaptation, modification, translation, arrangement, distribution, decomposition of elements, etc. It is understood by both parties that this above list is not exhaustive.

10. DATA PROCESSING
10.1. PERSONAL DATA

If the Data submitted to use the Application services includes personal data, the Client accepts to comply with applicable laws concerning the protection of personnel Data.

The Client therefore guarantees Odaseva Technologies that it will take full responsibility in the case of any appeals, complaints or claims by a legal person, whose Personal Data is contained on the Application Services – SaaS.

Odaseva Technologies commits itself to inform the Client of the location of Data and communicate any relevant information; the Client takes full responsibility and ensures Odaseva Technologies that it will comply with all legal requirements incumbent upon it under the protection of personal Data, including the cross-border flows outside the European Union.

In this context, Odaseva Technologies informs the Client that third party operators Amazon and Salesforce.com have adhered to the Safe Harbor principles established especially between the United States and the European Union. Odaseva Technologies agrees to be vigilant concerning an requests made on the basis of the Patriot Act, and act on the Client’s behalf, in their best interest.

10.2. THE EXPLOITATION OF DATA

The Client accepts all editorial responsibility for its use of Application Services.

The Client is solely responsible for the quality, the legal application and appropriate use of the content of data it imports into on the Application Service.

The Client also guarantees that it holds the intellectual property rights to use the Data and content. Accordingly Odaseva Technologies disclaims any responsibility in case of non-compliance concerning the use of Data and / or the content, any relevant laws and regulations.

The Client guarantees that if a third party brings about a legal proceedings due to Client’s misuse of the content, the Client will take full responsibility and not hold Odaseva Technologies responsible for any damages payable.

The Client is entirely responsible for the content and distribution or download of messages via the Application Services. The Client remains the sole owner of the Data constituting the Solutions content.

10.3. DATA SECURITY

Both parties agree to implement appropriate technical tools to ensure the security of the Data.

Odaseva Technologies agrees to preserve the integrity and the confidentiality of the Data included in the Solutions and to fully respect the « Responsibility » Clause.

Upon the Client’s request, Odaseva Technologies may have access to the Client’s Data in order to ensure the correct and proper working of the Application Services – SaaS and/or the implementation of additional Solutions.

Odaseva Technologies will implement technical and organizational measures to prevent unauthorized access and dishonest use of Data, and to prevent any loss, alteration or destruction of Data.

11. PROPERTY

The Client is and shall remain the owner of all the Data on the Application Services – SaaS.

Odaseva Technologies is and remains the owner of all the Intellectual Property Rights to any part of the Application Services – SaaS and the Solutions made available to the Client, including the IT infrastructure (hardware and software) used or expressly developed as part of the Agreement.

The Agreement does not confer the Client any right of ownership of the Solutions. The temporary provision of the Solutions to the Client, in accordance with the Terms and Conditions laid down in the Agreement, does not include any transfer of intellectual property rights for the benefit of the Client, as defined by the French Code of Intellectual Property.

The Client agrees not to reproduce any part of Solutions by any means, in any form and on any platform whatsoever.

12. EVICTION

Odaseva Technologies declares and guarantees: (i) that the Solutions developed are unique within the meaning of applicable intellectual property law, (ii) that Odaseva Technologies is the unique owner of all the intellectual property rights, and has the necessary power and legal authority to sign the Agreement.

Odaseva Technologies declares and guarantees that the Solutions are not likely to affect the rights of third parties.

13. RESPONSABILITY – FORCE MAJEURE

Odaseva Technologies is held by an obligation of means, in the performance of the obligations issued from the present Application Services’ terms and conditions.

Each party is responsible for the consequences of its mistakes, errors or omissions, as well as the mistakes, errors or omissions of its subcontractors and causing direct damage to the other party.

In addition, in cases of proven fault by the Client, Odaseva Technologies will only be held liable for the repair of the financial consequences of direct and foreseeable damages of the Services. Accordingly, Odaseva Technologies shall, under no circumstances, incur any liability for loss or consequential or unpredictable damage of the Client or third parties, including in particular any loss of profit, loss, inaccuracy or corruption of files or data, commercial loss, loss of revenue or profit, loss of business, loss of an opportunity, cost of production of a product, service or technology surrogate, related to or coming from a non-performance, or a faulty performance of the services.

Assuming that Odaseva Technologies’ responsibility would be retained, the total amount of compensation Odaseva Technologies could be required to pay to the Client for any direct damage, may not exceed the amount paid by Client in a subscription term.

This liability limitation continues after the eventual termination of the contract. Odaseva Technologies shall, moreover, not be held responsible for the accidental destruction of data by the Client or a third party application services through the identifiers sent to the Client.

Neither party can be held responsible for any shortcoming whatsoever of its obligations under the Agreement, if such failure results: from a government decision, including any withdrawal or suspension of authorizations whatsoever, from a full or partial strike, internal or external to the company, from a fire, from a natural disaster, from a state of war, from a total or partial interruption or breakage in the telecommunication networks, from acts of hacking or more generally any other force majeure event that has the characteristics defined by the courts.

The party noting the event shall promptly notify the other party of its inability in performing its obligation.

The suspension of the obligations or the delay, for reasons outlined in the immediately preceding paragraph, shall in no event be a cause of responsibility for the non-performance of the obligation or induce the payment of damages or penalties.

14. REVERSIBILITY

In case of termination of the contractual relationship, whatever the reason, Odaseva Technologies undertakes to either return or destroy the data and any relevant personal information, upon the Client’s request registered up to fifteen (15) days following contract termination. Odaseva Technologies can return the data in three ways : (a) Customer download data directly on odaseva platform before contract termination (included – no cost associated); (b) Reactivation of odaseva.com platform for ten (10) days to let the customer download its data (included – no cost associated) (c) Deliver data on a physical support shipped to the customer within a period of sixty (60) days from the date of payment of the reversibility fee (not included – paid services).

Data destruction will be effective within a period of sixty (60) days from the date of reception of the registered letter.

15. CONFIDENTIALITY

Each Party undertakes to keep confidential any information or Data, they may receive from the Other Party, and in particular, not to disclose this to a third party, with the exception of employees or agents who need to know.

Each Party also agrees to use any confidential information or Data of the Other Party as only a result of exercising its rights in order to fulfill its obligations under the Terms and Conditions of the Agreement.

Regardless of the foregoing, neither party will have any obligation to respect information concerning the Other Party, in the following cases : (i) information that is in the public domain without any fault by the receiving party, (ii) information that is considered as independent to the Other Party, (iii) information previously known by the receiving Party before disclosure by the Other Party, (iv) information that would rightfully be received from a third party that is not under an obligation of confidentiality, or is disclosed under the law or a court order (in which case they should be disclosed to the extent required and after having notified in writing the party who has provided it).

The parties’ obligations with respect to confidential information will remain in force throughout the Agreement and will continue to be in vigor in perpetuity after the Agreement’s date of termination.

Each party shall return all the copies of the documents and materials containing confidential information of the other party, at the end of the Agreement, regardless of the cause. The parties also undertake that their staff, and any agents or third party will also comply with the conditions above.

16. INSURANCE

Odaseva Technologies has taken the necessary insurance to cover the risks related to the exercise of its business. Upon request by the Client, Odaseva Technologies agrees to provide any substantiating documents concerning Insurance policies taken.

17. OTHERS

Nullity, lapse, the absence of binding or unenforceability of any of the provisions of the Agreement will not affect any other provision, which will remain in force. However, the parties may, by mutual agreement, agree to replace any invalid stipulations.

The Agreement is subjected to French law, excluding any other legislation.

For the execution of the present Terms and Conditions, both parties accept that the address of their legal headquarters is the one mentioned on the Application Form. Any change of registered office or address of either party shall be binding. Each party must notify the other party within a reasonable time thereafter.

In order to find a solution to any litigation arising during the execution of the Agreement, the parties agree to meet within thirty (30) days after the receipt of the registered letter detailing the complaint. If after fifteen (15) days, the parties cannot agree on a compromise or a solution, the litigation shall be submitted to the competent court where the headquarters of the Service provider is located.