Version management

V1 - First version. Sign up via partners or directly by the Evelean sales department. Functionalities covering the CMS part, two-dimension segmentation and automatic display of content by segment.

 

IMPORTANT NOTE

The French version of this document will govern our relationship - this translated version is provided for convenience only and will not be interpreted to modify the French version. For the French version, please see 

https://www.evelean.com/fr/conditions-generales-de-ventes-et-d-utilisation

 

Identification

EVELEAN SAS with registered capital of €25,000, registered address at 27 rue du Chemin Vert, 75011, Paris, entered in the Paris trade and companies’ register under number 843 133 687, intra-community VAT number FR70843133687

hereinafter “EVELEAN” or the “Service Provider”.

EVELEAN is the owner of the “EVELEAN” platform described at the URL www.evelean.com

 

Definitions

In addition to the terms defined where necessary in the Contract, the terms which are capitalized have, within the Contract, the meaning given to them below.

Administrator

Designates the person chosen by the CLIENT who is the default main point of contract for the Service Provider. The Administrator centralizes communication between the CLIENT and EVELEAN for the operational aspects of the SaaS Service.

Fault

Designates any operational fault of the SaaS Service linked specifically to a problem affecting the platform (and therefore in no circumstances does it refer to any problem relating to the functioning of the Internet, third-party software of the client, etc.). A Fault is considered to be “Critical” if it completely prevents the use of the Platform by the CLIENT. A Fault is considered to be “Major” if it adversely affects or substantially restricts one or more major functionalities of the Platform and it cannot be bypassed other than by setting up a maintenance task.

Terms and Conditions of Contract

Designates these general terms and conditions of sale and use of the Platform which have been accepted by the Client when placing its order along with the Annexes.

Client

Designates the individual or legal entity which placed the order on the Platform.

Client Account

Designates the personal account used by the Client to access the functionalities of the Platform for which it has a subscription.

Content

Designates all documents, information or data (including personal data) and, in general, all of the CLIENT’s digital content, inserted directly or indirectly by the Client and/or processed using the SaaS Service.

Personal Data

Designates all information relating to an identified or identifiable individual.

Host

Designates all of the hardware and software of the hosting data center in which the Platform is installed and from which the SaaS Service is provided to the CLIENT. The service provider operating the hosting under a sub-contract from EVELEAN SAS is named in this Contract.

Maintenance

Designates the service of corrective maintenance of the Platform. The value of this service is included in the cost of the SaaS Charge. EVELEAN’s undertakings for this service are specifically defined within the Contract.

Partner

Designates any third party which may offer additional services around the EVELEAN SaaS solution.

SaaS Charge

Designates the sum payable by the CLIENT to the Service Provider in exchange for the right to use the SaaS Service, excluding additional services which are identified as such and which require the acceptance of a quotation as appropriate. The SaaS Charge is billed and paid according to the terms stipulated in the Contract.

SaaS Service

Designates the right for the CLIENT for the Term of the Contract:

(i) to use the Platform and the selected functionalities,

(ii) to benefit from the Content hosting services,

(iii) to benefit from the Maintenance services.

The services included in the SaaS Service form an indivisible whole for the Service Provider.

User

Designates the individuals (employee or representative of the CLIENT) authorized by the CLIENT to benefit from access to the Client account. The CLIENT is responsible for controlling access to the SaaS Service. The CLIENT alone determines the granting of rights and the authorization of the User, at its own liability. It is up to the CLIENT to provide training of the User prior to use of the SaaS Service in live operating conditions.

Purpose of the Contract

The purpose of the Contract is to define the conditions under which the Service Provider provides, through the provision of the Platform, the SaaS Service for the benefit of the CLIENT in return for the payment of a subscription. The use of the SaaS Service is granted to the CLIENT solely for the requirements of its organization and not to process data for third parties.

The list of services which make up the SaaS Service, the service levels described in the “Service Availability” article and the list of the Platform’s functionalities defined in the Annex: (i) together describe, explicitly and comprehensively, the key qualities of the SaaS Service provided by the Service Provider and in consideration of which the two parties have decided to enter into a contract, excluding any implicit quality that the CLIENT may expect and of which the Service Provider may not be aware and (ii) together mean that the SaaS Service from the Service Provider is of a quality which meets the CLIENT’s legitimate expectations in consideration of the nature of the services, usage and the value of the sum that the CLIENT undertakes to pay to the Service Provider for use of the SaaS Service.

EVELEAN draws the CLIENT’s attention to the fact that the SaaS Service offered is a standard service. Consequently, it is up to the CLIENT, prior to acceptance of the quotation, to check that the SaaS Service matches the specifications of its requirements and to ensure that the SaaS Service is scaled so that it allows the CLIENT to achieve its business objectives of which the Service Provider may not be aware.

At the request of the CLIENT, the Service Provider may provide additional services (consultancy, communications support, configuration, training, etc.) other than those explicitly included in the SaaS Service. Any additional service to be provided by EVELEAN shall be quoted for by EVELEAN and expressly accepted in writing by the CLIENT before implementation. These services will be billed separately, in additional to the SaaS Charge. EVELEAN may also assign these additional services to a Partner which will therefore assume responsibility to the client for these services.

The Client declares to have read and accepted these Terms and Conditions when placing its Order or signing the quotation.

The approval of the Order or the signature of a quotation shall therefore constitute full acceptance of these Terms and Conditions. They are regularly updated; the applicable Terms and Conditions are those in effect on the Site on the date on which the Order is placed.

Any conflicting condition imposed by the Client shall therefore, unless expressly accepted, be unenforceable on the Service Provider regardless of when it may have been brought to its attention.

The fact that the Service Provider does not, at a given moment, invoke any one of the provisions of these Terms and Conditions shall not be interpreted as a waiver of the right to invoke any one of the provisions of said Terms and Conditions at a later date.

Description of the Service

The Service offered by EVELEAN is a Lean Marketing solution for the digital environment. Lean Marketing is based on constant adjustments of web content to improve performance indicators, in particular web traffic and generation of new contacts.

By way of example, according to the functionalities selected by the Client, the SaaS Service can be used to:

- create and manage the content of its website;

- plan the publication of its content;

- create and send marketing emails;

- create content widgets;

- access traffic monitoring and conversion rate tools;

- access traffic optimization and conversion rate tools;

- generate new contacts.

The functionalities which the Client can access depend on the offer which the Client selects when placing its order.

Strict limits on the use of the Platform and the Service

With this Contract, the Service Provider hereby grants the Client non-exclusive and non-transferable access rights to the Platform. This right may not be sub-licensed, assigned, transferred or made available to a third party, free of charge or in return for payment, in any practical or legal manner. The SaaS Service may be used:

(i) only by remote access, in compliance with the identification and access rights allocation rules (the “User IDs”) of the CLIENT which shall be the sole decider of who it authorizes to use the SaaS Service via its client Account;

(ii) only for the processing of the CLIENT’s data under the conditions specifically defined in this article. In no case may the SaaS Service be used on behalf of third parties, nor shall access be given or sold to third parties by the Client or the Client's Users.

The Client may manage a group and in this regard may have several subscriptions and therefore several accounts. The Client guarantees compliance with these Terms and Conditions by any user of its accounts.

The Platform is an intellectual work of which the Service Provider retains full ownership and which the Client is forbidden from:

Copying or reproducing, representing, modifying, transmitting, publishing, adapting in full or in part by any means whatsoever and in any form;

Using in any way other than in accordance with the strictly interpreted provisions of these Terms and Conditions;

Translating or transcribing into any other language or adapting or adding any object which does not comply with its specification;

Decompiling or performing reverse engineering other than within the legally authorized limits.

This clause relates to all elements of the Platform (images, databases, etc.) other than those belonging to the Client. These elements are protected by intellectual property law or the law protecting the rights of producers of databases. In the same way, the results of the Evelean algorithms, in particular the predictions, remain the property of the Service Provider who simply grants access to them to the Client for the duration of this Contract. These elements may not, in any circumstances, be disclosed to third parties.

Strict observance by the CLIENT of the Service Provider’s intellectual property and conditions of use of the Platform are fundamental for the Service Provider. Any use of the Platform in conditions which are not provided for by the Contract without the prior written agreement of the Service Provider represent a considerable risk for the continued existence of EVELEAN SAS for which the intellectual property of the Platform constitutes a key asset. Consequently, any breach of this article, deliberate or not, by the CLIENT, is considered to constitute a sufficiently serious breach by the CLIENT which will entitle the Service Provider to immediately suspend as of right the SaaS Service with effect from the date on which the Service Provider sends a notice to the CLIENT in this regard and/or to terminate the Contract under the conditions defined below.

The CLIENT’s User IDs for logging into its Account are personal and confidential. They are assigned by the CLIENT at the CLIENT’s responsibility. They can only be changed by the CLIENT or at the Service Provider’s initiative, subject to notifying the CLIENT in advance. The CLIENT undertakes to implement all necessary measures to keep the User IDs secret and not to disclose them in any form whatsoever. The CLIENT has sole responsibility for the use of User IDs which it alone manages. In general, the CLIENT assumes responsibility for the physical and software security of the individual terminals used to access the Platform. In the event that the CLIENT were to learn of an unauthorized person having access to its Account, the CLIENT undertakes to inform the Service Provider of this without delay. In the event of the loss or theft of a User ID, the CLIENT alone shall use the procedure which allows it to recover its User IDs or to create new ones but shall inform the Service Provider that a third party may be logged in. The Client is responsible for protecting the passwords used to access the Services and for all activities and actions performed after logging in with a password. The Service Provider encourages the use of passwords consisting of a combination of upper and lowercase letters, numbers and special characters and which are at least 12 characters long. The Service Provider shall not be held responsible for any loss or damage resulting from a failure on the part of the client to comply with the foregoing.

The Client is responsible for the Content inserted from its Account. The Client declares to be the author of or to have all necessary intellectual property rights or permissions for all of the Content uploaded or which it uses in relation to the Service. It is the responsibility of the client to respect the rights of third parties.

The Client guarantees that it shall not upload Content which contains or which may contain viruses or programs which destroy data, disrupt the operation of the Service or cause harm of any kind to other users of the Service. The Client further guarantees that it shall not upload illegal content or content which could prejudice public order or offend public decency. The Client undertakes not to send Spam using the Services.

The Client is fully responsible for the creation, transmission or publication of any Content via the Platform and the consequences of its acts. The use of the Service, and in particular the hosting of Content, is at the Client’s responsibility.

The Client acknowledges that Content which is considered to breach the laws or regulations in force may be handed by the Service Provider to the law enforcement authorities. The Client is informed that the Content must be able to be viewed by any audience.

All Content, whether it is published or communicated publicly or privately, are the sole responsibility of the person who is the source of the communication of such Content. The Service Provider is not able to monitor or control the Content posted via the Services and shall not be held responsible for such Content.

The completeness, veracity, accuracy or reliability of the Content or information published via the Services by the Client is in no way assumed, supported, claimed or guaranteed by the Service Provider.

The Services may be suspended in the event that the Content is reported as being unlawful or in breach of these Terms and Conditions.

It is expressly agreed that in the event that a claim is brought against the Service Provider, for any reason in any country, by a third party on the basis in particular of industrial and/or intellectual property rights relating to Content directly or indirectly supplied or included by the Client, including by any User authorized by the Client, the Client shall fully guarantee the Service Provider from the direct and/or indirect economic and financial consequences (including the costs of the legal proceedings and of legal representation) arising from these claims.

The Client shall ensure the data is sent to the Platform. The Client may not hold the Service Provider responsible on any basis and for any reason for the non-receipt of the Content transmitted. The Client shall further ensure that a back-up of the transmitted Content is retained.

Registration/Duration of the subscription

The Client guarantees that it has registered as a professional in relation to its business activity.

The Contract is made and takes effect from the day of signature of the quotation (and of acceptance of these Terms and Conditions) and has an unspecified duration.

Availability of the Service

The Service Provider has constructed its architecture on the Amazon Web Services cloud, complying with best practice in terms of data security and service availability.

The Service Provider will do everything possible to ensure that the SaaS Platform is accessible 7 days a week, 24 hours a day, but does not guarantee it or make commitments about an availability rate.

The Service Provider alone may carry out maintenance. Once a major Fault has been reported and identified, the Service Provider will attempt to resolve it, by any means, as quickly as possible.

Faults which are not major will not necessarily be repaired.

Faults which are caused by an error by the Client, by an incompatibility with third-party software or the Client’s IT system shall not be repaired.

The Client acknowledges that the Service Provider may not, in any case, be held responsible for any interruptions in the functioning of the Internet. Furthermore, the Service may be unavailable due to maintenance or upgrade work. Insofar as possible, the Client shall be notified of these operations by a message published on the Platform twenty-four (24) hours prior to the maintenance or upgrade work being carried out.

The Service Provider reminds the Client that the provision of a link between the Platform and the Client’s IT system is not included in the Service and it is the responsibility of the Client to have a connection to a communications network which allows it to effectively receive data from the Site and to transmit them and that the costs for its internet connection and its IT system are to be borne by the Client itself.

THE SERVICE PROVIDER REMINDS THE CLIENT THAT THE INTERNET, WHICH ALLOWS THE SERVICE PROVIDER TO DELIVER THE SERVICE, IS AN OPEN AND INFORMAL NETWORK, FORMED BY THE INTERNATIONAL INTERCONNECTION OF COMPUTER NETWORKS USING THE TCP/IP STANDARD, WITHOUT ANY OBLIGATION OF SUPPLY OR OF QUALITY OF SUPPLY BETWEEN THE OPERATORS OF THESE NETWORKS. CONSEQUENTLY, THE SERVICE PROVIDER CANNOT GUARANTEE THE AVAILABILITY OF THE SERVICE WHICH IS BASED ON THE OPERATION OF THE INTERNET, NOR THAT THE USE OF THE SERVICE SHALL BE UNINTERRUPTED.

Good faith

From the date of the Client’s Order, each Party undertakes to execute the Contract in good faith, in particular by cooperating with the other Party in relation to the performance of the services for which it is responsible, for example by notifying the other Party of all documents and information required or requested to allow the Service Provider to provide the SaaS Service under the conditions provided for by the Contract, where applicable.

The CLIENT acknowledges that it has been informed by the Service Provider that the implementation and correct usage of the SaaS Service may depend on the ability of the CLIENT to provide prior training to its Administrator in the use of the SaaS Service.

Technical information and information regarding the host

The optimized browsers for the use of the SaaS Service are the most recent versions of Google Chrome,
Firefox, Mozilla and Internet Explorer.

Name of the hosting provider operating as a sub-contractor of the Service Provider: Amazon Web Services. All of the client data are hosted exclusively in Europe. As an exception, computing resources may be used in the United Kingdom.

If it is planned that the Service Provider will access the pages of the Client’s social media accounts, the Client expressly authorizes the Service Provider to access them by accepting these Terms and Conditions and to post any content there. The Client shall have complete freedom to delete the content posted by the Service Provider. The Client shall entrust its User IDs and passwords to the Service Provider which undertakes not to disclose them and to inform the Client if it is notified that a third party has had access to them.

Financial conditions

 

Order

Any order may be placed by acceptance of a quotation. Signature of the Quotation means full acceptance of these Terms and Conditions.

 

General provisions

The value of and payment terms (i) for the SaaS Charge and (iii) any additional sums owed by the CLIENT for additional services are detailed and given in Euros both exclusive and inclusive of taxes. The CLIENT is solely responsible for the payment (i) of the SaaS Charge and (ii) any other sums due for the additional services and for the payment of any taxes and/or duties relating to the execution of the Contract. The Service Provider’s invoices are payable monthly in advance on the billing date. No discount shall be applied by the Service Provider for payment prior to the date shown on the invoice or sooner than the deadline specified in these Terms and Conditions.

The invoices are monthly and are payable in Euros by bank card, check, bank transfer or any other means accepted on the quotation.

When payment is made by bank card, the Platform uses the STRIPE system, a specialist service provider in secure online payment processing. This system guarantees for the Client complete confidentiality of its bank details. The bank transaction between the Client and the secure system is therefore fully encrypted and protected. The Client’s bank details are not stored electronically by the Service Provider.

The Client guarantees to the Service Provider that it has the necessary permissions to use the payment method when placing the Order.

The SaaS Charge expresses the consideration that the CLIENT undertakes to pay to the Service Provider for use of the SaaS Service.

Any additional service request not included in the Contract will be quoted for separately and must be accepted by the Client.

Payment delay and suspension of the service

Any delay in payment by the CLIENT of more than fifteen (15) days after the contractually agreed due date and after email reminders from the Service Provider to the CLIENT is considered to constitute a sufficiently serious breach by the CLIENT to give the Service Provider the right to immediately suspend the delivery of the SaaS Service, simultaneously notifying the CLIENT and without any further advance notice or formality of any kind.

In accordance with article L.441-6 of the French commercial code, in the event of the full or partial non-payment of the SaaS Charge (or of any other sum due by the CLIENT under this Contract) by the Contractual due dates, (i) interest on arrears will automatically be incurred on any unpaid sum, on a daily basis, until the date of payment in full of the principal, interest, fees and other costs, at a rate equal to five (5) times the statutory interest rate, with no requirement to issue a reminder and without prejudice to damages which the Service Provider reserves the right to seek legally; (ii) in accordance with article L.441-6 of the French commercial code, a fixed sum of €40 for debt collection costs shall be levied as of right for each invoice in question. In accordance with article L.441-6 of the French commercial code, the debt collection costs, documented on the invoice, the sums unpaid by the CLIENT (costs of legal proceedings, expenses, disbursements and lawyers’ and bailiffs’ fees) are considered to be additional to the monies owed to the Service Provider and are to be borne in full by the CLIENT.

Notification by the Service Provider of the termination of the Contract due to the CLIENT’s failure to pay makes certain, liquidated and enforceable the total sum, excluding taxes, of the SaaS Charges owed to the Service Provider.

Unforeseen economic circumstances

In accordance with article 1195 of the French civil code, the Service Provider declares that it cannot accept the risk of an increase in the hosting and storage costs for the Platform and the CLIENT’s Data which are billed by the Host providing these special services as a sub-contractor. Consequently, any increase of more than FIFTEEN (15) % of any one of these special services notified by the Service Provider to the CLIENT is considered to constitute an unforeseen economic circumstance which makes the provision of the SaaS Service excessively expensive for the Service Provider. In this circumstance, the parties undertake to renegotiate the Contract in good faith. If a written agreement cannot be reached by means of an Addendum within thirty (30) days of the notification referred to above, each of the parties may give notice of termination of the Contract, without compensation of any kind being due to either of the parties. Before agreeing on the new price or the termination of the Contract under the above conditions, the Service Provider shall be obliged to perform the Contract under the financial conditions and following the procedures agreed with the CLIENT.

Price adjustments

The prices are subject to change. The Client, if it rejects the new prices, shall have a period of thirty (30) days to notify the same to the Service Provider. The Contract will then be terminated. If the Client does not expressly reject the new prices, they shall be applied with effect from the month following the end of the thirty (30) day period stated above.

Liability and insurance

Liability of EVELEAN SAS

The Service Provider is liable for immediate, direct and foreseeable damage caused by the partial or total improper performance of the SaaS Service, demonstrated by the CLIENT.

However, the Service Provider is not in any way liable for indirect, unforeseeable or non-consequential damages caused by the partial or total improper performance of the SaaS Service, including loss of revenue, costs of procuring Software or the supply of a service to replace the Platform.

The Service Provider does not in any circumstances guarantee that the Client will find new clients nor increase its turnover through use of the Services.

Where EVELEAN provides SEO suggestions, EVELEAN does not guarantee results for the visibility of the Client’s content.

EVELEAN SAS cannot be held liable for any damage caused by an error by the Client, a third party or due to an instance of force majeure.

The Platform may contain links to third party sites over which the Service Provider has no control. Its liability may not, therefore, be engaged due to the content of these sites.

The obligations of the Service Provider are best endeavors obligations.

In any case, the total value of the Service Provider’s financial liability is limited to the value of the SaaS Charges paid by the CLIENT for the previous eighteen (18) months of actual use of the SaaS Service. The CLIENT may only hold the Service Provider liable for one (1) year from the date of the occurrence breach in question.

The Service Provider declares to be the holder, with a well-known solvent insurance company, of an insurance policy covering its operational and professional public liability which may be incurred due to the performance of the Contract. The payment of the annual insurance premium by the Service Provider takes account of the value of the compensation contractually offered by the Service Provider under the Contract.

Liability of the Client

The Client guarantees compliance by the Users to which it grants access to the Service with this Contract and of the general terms and conditions of use of the Platform.

The role of the Service Provider is limited to the provision of the Platform to the Client and of the delivery of the related services to which the Client may have subscribed.

The Client is obliged to ensure that the Platform is used in accordance with the legal and regulatory conditions. The Service Provider does not give any guarantees to the Client with regard to the conformity how it uses or intends to use the system with the legal and regulatory conditions.

If the Client creates a website using the Platform, the Client has sole responsibility for entering all of the legally required statements on it (legal notices, Terms and Conditions of sale or use as applicable, privacy policy, etc.).

The Client must back-up the Content transmitted on the Platform.

The Client is responsible for the compliance of the data processing carried out using the Platform and guarantees to the Service Provider that it is compliant with the GDPR. The Client has sole responsibility for compliance with data protection laws for all data that it collects via its website, even if this site has been set up using the Platform. Similarly, when sending out marketing emails using the Services, the Client must ensure that it has the legal grounds allowing it to send such emails.

End of the Contract/Termination

Termination without fault

The Parties may terminate the Contract at any time by notifying the other Party by email or by letter. Any month commenced is payable.

The Client must observe the notice period of thirty (30) days from notification before the termination is effective.

In turn, the Service Provider undertakes to observe a notice period of sixty (60) days from the date of notification of no-fault termination before the termination becomes effective.

Termination due to a sufficiently serious breach or non-compliance with a specific key aspect

The Contract will be terminated as of right if one Party does not remedy either (i) a sufficiently serious breach of any of its contractual obligations, or (ii) a specific key aspect of the service, within thirty (30) days from the date of notification by the other party of the obligation to end the said breach.

End of the Contract

At the end of the term of the Contract, for any reason, the CLIENT’s access to the Platform shall be stopped from the first day of the month following the month during which the termination was requested.

Reversibility and return of the CLIENT’s Content

The Client may recover all Content processed by the SaaS Service prior to the end of the Contract.

Only subscribers with a ENTERPRISE subscription may be entitled to seek a return of their data after the suspension of the services and if the request is made within thirty (30) days of the closure.

For other subscriptions, the account data will no longer be accessible once the service has been suspended.

Thirty (30) days after the closure of the account or its suspension, all data for that account will be permanently destroyed.

Survival of clauses

In accordance with article 1230 of the French civil code, the provisions which survive at the end of the contractual period or the taking effect of the termination of the Contract, regardless of the cause and/or basis, are those provisions which by their nature survive the withdrawal of the Contract (in particular the confidentiality obligation, the non-competition undertaking, the GDPR obligations, the assignment of jurisdiction, etc.).

Guarantees relating to the Platform

EVELEAN SAS guarantees (i) that the Platform is original and (ii) that it is the holder of all intellectual property rights for the Platform, except for any modules of the Platform which enjoy a non-contaminating “Open Source” license or (iii) that it has the right to grant a user license to the CLIENT for any additional modules of the Platform included in the SaaS Service, the intellectual property rights for which are held by a third party which has granted the use of them to EVELEAN SAS in such a way that EVELEAN SAS can validly in turn grant use of them to the CLIENT under the conditions of the Contract.

During the term of the Contract, the Service Provider guarantees the CLIENT again any action or proceedings on the grounds of a possible infringement by the Platform of the intellectual property rights of a third party. ELEVEAN SAS is responsible, at its own expense and at its own choice, for the defending the action brought against the CLIENT by the third party alleging an infringement of its rights, the holder of the intellectual property rights on each additional module which has made a similar commitment to EVELEAN SAS. The Service Provider shall pay all damages which the CLIENT may be sentenced to pay by a final court judgment on the substantive matter which is res judicata. The Service Provider guarantees the CLIENT the quiet use and enjoyment of the Platform and any additional modules, provided that the CLIENT notifies it without delay of any threatened action or proceedings to this effect, allows it to defend it and cooperates with EVELEAN SAS for this defense. EVELEAN SAS shall have complete control of the civil defense, including an appeal, negotiations and the right to reach a settlement in accordance with article 2044 and subsequent of the French civil code. The CLIENT shall be solely responsible for its criminal defense, at its own expense, in order to be able to overturn the presumption of bad faith established by case law.

If EVELEAN SAS receives a civil conviction by a final court judgment on the substantive matter which is res judicata or in the event of a settlement agreed by EVELEAN SAS, EVELEAN SAS may, at its choice and expense, either (i) obtain for the CLIENT the right to continue to use the Platform and/or any additional modules modifying where necessary all or part of the Platform (and/or an additional module) so that it no longer constitutes an infringement of the rights of a third party, or (ii) if the right to continue to use the Platform (and/or any additional module) cannot be obtained or if the Platform (and/or an additional module) cannot be replaced or modified at a reasonable cost so that it no longer constitutes an infringement of the rights of a third party, it shall give notice of the termination of the Contract and return to the CLIENT the total amount of the SaaS Charges paid by the CLIENT to EVELEAN SAS since the date of the third party claim.

License and Guarantee of the Content

The Client grants to the Service Provider a license, free of charge and non-exclusive, for the whole world and for the duration of the Contract for the Content which belongs to it and which are entered into the Platform. This license includes all rights of reproduction and representation in any format especially via the internet as well as the right of modification so that the content may be incorporated into the Platform or any other medium chosen by the Client or by EVELEAN SAS. The license further includes the right to use the Client’s content and data in algorithms developed by the Service Provider to deliver the services provided for within the Contract. The Client authorizes the use of the Content for the purposes of improving the algorithms which are self-learning.

The Client guarantees that it has all intellectual property rights or image rights and that the Content does not violate any third party rights. It is expressly agreed that in the event that a claim is brought against the Service Provider, for any reason in any country, by a third party on the basis of industrial and/or intellectual property rights relating to Content directly or indirectly supplied by the Client, the Client shall fully guarantee the Service Provider from the direct and/or indirect economic and financial consequences (including the costs of the legal proceedings and of legal representation) arising from these claims.

Data Protection

Service Provider responsible for data processing

In relation to the provision of the Service, the Service Provider collects the personal data of the Client’s Administrator who is the point of contact for customer service. The data collected are:

- Email address

- First name

- Surname

- Telephone number

- Position within the client’s company

- Company registration number

The Service Provider collects and processes the personal data of the Client’s Administrator for the following purposes:

- Provision of the service;

- Order management;

- Commercial relations, payment, billing, etc.;

- Responding to any questions/complaints from Clients;

- Management of requests regarding access rights, corrections and objections;

- Management of outstanding debts and disputes;

- Management of the Contract, maintenance, etc.

The personal data of the Client’s Administrator are retained for the duration of the Contract and for up to three years after the end of the Contract and the last contact with the Client for business development purposes.

The personal data of the Client’s Administrator are processed by the Service Provider’s commercial and technical departments as well as by any sub-contractors of the Service Provider, in particular the host of the Platform, technical service providers and the intermediaries required for the performance of the contract.

The Service Provider may also disclose the personal data for the purposes of cooperating with the administrative and judicial authorities.

The Service Provider shall ensure that the personal data of the Client’s Administrator is secured in an adequate and appropriate manner and shall take the necessary precautions to preserve the security and confidentiality of the data and, in particular, to prevent them from being corrupted, damaged or disclosed to unauthorized persons.

The legal basis for the processing carried out by the Service Provider is contractual, formalized by this Contract which the Client must accept. The purposes of the processing are linked to the proper performance of this Contract.

The Client's Administrator is informed that he or she may exercise his/her rights, in accordance with the provisions of law 78-17 of 6 January 1978 as amended, to correct, delete, request the restriction of the processing and the portability of his/her data by contracting the Service Provider by telephone or email. The Client’s Administrator may, where applicable, bring an action before the French regulatory authority, CNIL.

Sub-contractor service provider

When the processing of personal data is assigned by the Client to the Service Provider, the Service Provider acts as a sub-contractor.

The purposes of the processing assigned by the Client to the Service Provider are the hosting, maintenance and optimization of the Client’s website, in particular through visitor analysis, allowing it to optimize the conversion of leads and any other service covered by the Contract which requires the processing of personal data for which the Client would be responsible for processing. If processing for other purposes is assigned by the Client to the Service Provider, the Client shall specify this in writing.

The Service Provider undertakes (i) to only process data for which the processing has been assigned under a sub-contract under the conditions in the Contract and (ii) not to perform any data processing which is not provided for by the Contract, unless at the prior, written, documented and legitimate instruction of the Client. The Client must specify to the Service Provider the retention periods for the data that the Service Provider processes as a sub-contractor.

The Service Provider reminds the Client that, in application of article 28.3, paragraph 2, of the GDPR, any instruction from the Client which may lead to a non-compliance with the GDPR or with French laws on data protection shall mean that the Service Provider is obliged to immediately inform the Client of the same. The Service Provider reserves the right to reject instructions from the Client which seem to it to be unlawful within the meaning of article 82.2 of the GDPR. In this case, written and documented refusal by the Service Provider shall not permit the Client to terminate the Contract, except where the Client is held liable by the Service Provider for termination of the Contract considered to be “without legitimate cause”.

The Client authorizes the Service Provider to engage sub-sub-contractors. The Service Provider shall inform the Client of any planned change regarding the addition or replacement of sub-sub-contractors, thereby giving the Client the possibility of raising objections to these changes (article 28.2 of the GDPR).

The Service Provider undertakes to only technically process the data of the Client present on the Site for the purposes of the Contract, to the exclusion of all other usage, for the benefit of the Service Provider or of third parties. The personal data are stored and processed by a Host which is a sub-contractor of the Service Provider, AWS, on servers located exclusively within the European Union and will not be sent outside of the European Union without the prior written agreement of the Client, unless in application of a European Union adequacy decision which allows a processor service provider to export the personal data without specific authorization. The Client may ask the Service Provider about the security measures implemented by the host.

The people at the Service Provider who have access to the Client’s data are subject to a confidentiality obligation.

The Service Provider shall delete all of the Client’s data at the end of the Contract, unless if there is a legal obligation requiring it to retain them or if the Client decides otherwise.

The Service Provider shall make available to the Client, responsible for the processing, all necessary information for demonstrating compliance with the obligations set out in this article and to allow for audits to be conducted, including inspections, provided that these audits are not unreasonable and do not destabilize the service delivered by the Service Provider. These audits may only be conducted once per year.

In accordance with article 33 of the GDPR, the Service Provider undertakes to inform the Client, within a maximum of forty-eight (48) hours of finding out about it, of any security breach of the Client’s data when this violation leads, accidentally or unlawfully, to access to or the unauthorized disclosure, alteration, loss or destruction of personal data. It is then the responsibility of the Client to notify this to (i) the relevant regulatory authority and (ii) the persons involved when this personal data security breach “is likely to result in a high risk for rights and freedoms".".

If a security breach occurs, the Service provider undertakes (i) to immediately take all appropriate technical corrective measures to stop the identified security breach, in particular in order to make the data incomprehensible to any person not authorized to have access to them and to apply them to the data affected by this security breach and (ii) to demonstrate this in writing without delay to the Client.

It is the responsibility of the Client to ensure the legality of the collection and processing and to abide by all obligations arising from data protection law and the regulations applicable to the placing of cookies from its site.

If a request is made by an internet user to exercise their rights, the Service Provider will send the Client all information required to comply with the request. For technical reasons, the one-month deadline may be exceeded. The Client is responsible for checking the legitimacy of the request to exercise rights.

Use of cookies

Session cookies will be used on the Client’s Site.

The data collected in this way relate only to technical session information such as the source IP address, the browser, or the type of device used to access the web pages (computer or mobile phone, for example).

It is the responsibility of the Client to make the website compliant by inserting a cookies banner which complies with the data protection regulations and the instructions of the CNIL. The user must consent to the placing of the cookie before the cookie is placed.

General provisions

Confidentiality

The following information is considered confidential: information relating to the Contract and to the provisions contained therein and the CLIENT’s Content handled by the SaaS Service and, in general, and not limited to, the business plan of the Parties and of their present or future activities, their staff, their expertise, whether this information is obtained directly or indirectly from the other Party, its employees, its sub-contractors, representatives or service providers. The confidential information is provided “as is”, with no guarantee, whether express or tacit, regarding their accuracy or integrity. The following do not constitute confidential information:

(i) information accessible to the public without a breach of the terms of the Contract by the party which discloses or uses it;

(ii) information validly held by one party prior to its disclosure by the other;

(iii) information validly obtained from a third party authorized to transmit or disclose said information without a breach of a confidentiality obligation.

Each Party undertakes (i) not to use the confidential information, for any reason at all, except pursuant to its rights and obligations arising from the Contract, (ii) not to disclose the confidential information to anyone, by any means whatsoever, other than to their employees, service providers or sub-contractors who require this information for the performance of the Contract, throughout the duration of the Contract and for five (5) years after its termination, regardless of the cause.

For the protection of confidential information of the other Party, each Party undertakes to implement the minimum protective measures that it would take to protect its own confidential information and undertakes to ensure that its employees, service providers and any sub-contractors who have access to the confidential information have signed, prior to any disclosure to their benefit, a confidentiality agreement which has equivalent obligations to those contained in this article.

Each party acknowledges that the one which uses or discloses, without authorization, confidential information obtained from the other party during the negotiations shall be held liable according to common law.

Force majeure

Neither of the Parties shall be held responsible for a breach of any of its contractual obligations due to the occurrence of an instance of force majeure, understood to be an event (i) beyond the control of the Party which suffers it (ii) which could not be reasonably foreseen during the conclusion of the Contract and (iii) the effects of which cannot be avoided by appropriate measures.

Throughout the duration of the force majeure, if the impediment is temporary (less than thirty days), the force majeure event suspends for the Party invoking it the execution of its obligations, provided that the resulting delay does not justify the termination of the Contract (other than for the obligation to pay the contractual sums due on the date of occurrence of the force majeure event). If the impediment is permanent or lasts more than thirty (30) days, the Contract is terminated and the Parties are freed from their obligations, subject to notification of this termination by the first party to take action. In all cases, the party affected by the force majeure must take appropriate measures in order to prevent, eliminate or reduce the causes of the delay and resume the execution of its obligations as soon as the event invoked has passed.

Use of the name of the CLIENT as a reference

The CLIENT expressly authorizes the Service Provider to use the CLIENT’s name/logo/brands in strict compliance with the CLIENT’s corporate style as a commercial reference.

Non-solicitation of personnel

Unless expressly agreed otherwise by the Parties, each Party shall refrain from engaging the employees of the other Party who have been involved in the performance of the Contract, even if the initial solicitation is made by the employee in question. This obligation is valid for the whole duration of the Contract and for twelve (12) months following the end or termination of the contract, regardless of the cause and/or the basis. In the event that one of the Parties fails to comply with this obligation, it undertakes to compensate the other Party (in particular for the costs of selection and recruitment, training costs, damages caused to its personal standing or commitments already entered into it) by immediately paying said party a lump-sum compensation fee equal to twelve (12) times that latest gross monthly salary that the employee in question received from the defaulting party.

Social security obligations and clandestine work

The Service Provider hereby certifies that its services will be delivered by employees engaged lawfully with regard to articles L.1221-10, L.3243-2 and R.3243-1 of the French labor code.

Severability

The Contract cancels and replaces all previous agreements, whether verbal or written, made by the Parties regarding the same services. For instances where any provision of the Contract is judged to be void or is treated as having never existed by a final court judgment on the substantive matter which is res judicata, the parties agree to attempt to limit, insofar as is practicable, the scope of this nullity so that the other contractual provisions remain in effect and that the economic balance of the Contract is respected. In these circumstances, the Parties undertakes to renegotiate in good faith the drafting of a new clause to replace the one declared void, unless the cause of this nullity affecting a clause constitutes a key factor for the undertakings of both or one of the parties, in which case this nullity shall nullify the entire document.

Assignment of the Contract

The Contract may not be assigned, in full or in part, free of charge or in return for payment, by either one of the Parties without the prior agreement of the other. The assignment of the Contract shall take effect on the written acknowledgment (on penalty of nullity) of the assignment.

Notification and calculation of deadlines

Each Party elects its registered office as its address for service. Any notification (formal notice, report, approval or consent) required or necessary in application of the Contract must be issued in writing and shall be considered to be validly made if (i) two (2) original copies (one (1) for the recipient) are delivered by hand and signed for or (ii) sent by registered letter with a request for confirmation of receipt to the other party or (iii) by an express courier service, with signature of a delivery receipt. Unless specifically stated otherwise in an article of the Contract, the deadlines are counted by calendar day, one week equaling six (6) business days and five (5) weekdays. Any deadline which is counted with effect from a notification shall begin from the first attempt to deliver to the recipient, the postmark being proof thereof, along with the delivery receipt from the express courier and the date handwritten on the letter delivered by hand. If a measure must be taken or a notification must be issued on a specific date or by a specific deadline and said date is not a weekday, the measure or notification in question may be carried forward to the next weekday.

Addendum and agreement on evidence

By express derogation from the provisions of Article L.110-3 of the French commercial code, the Parties acknowledge that any modification of the Contract can only be made in a written addendum, which may be in the form of an electronic document, signed by a duly authorized representative of each of the Parties (empowered by the articles of association or by special powers) (an “Addendum”). Consequently, in the absence of a previously signed Addendum, the following shall be considered null and void: (i) any verbal or written agreement (SMS, Tweet, email, letter, meeting minutes, etc.) between the Parties relating to the Contract, as well as (ii) any service, even partially performed by the Service Provider which is not expressly included within the strict scope of the SaaS Service.

The Client, by “clicking” in acceptance of these general terms and conditions of sale as well as for orders and payments, is considered to have accepted the Contract.

Computerized records stored in the Service Provider’s IT systems shall be retained in reasonably secure conditions and shall be considered as proof of communications, orders and payments between the parties.

Orders and invoices are archived on a reliable and durable medium which can be produced as evidence and to which the Client has access via its account.

Applicable law and jurisdiction

The Contract is subject to French law, both in form and substance. If the Contract is translated into a foreign language, only the version of the Contract in the French language shall prevail between the parties.

The Parties undertake to attempt arbitration before seeking legal recourse.

SHOULD THE PARTIES BE UNABLE TO REACH AN AMICABLE AGREEMENT FOR ANY DISPUTE RELATING TO THE INTERPRETATION, PERFORMANCE OR TERMINATION OF THIS CONTRACT, in accordance with article 48 of the French code of civil procedure and only for circumstances in which the CLIENT is a commercial company, JURISDICTION IS EXPRESSLY ATTRIBUTED TO THE APPLICABLE COMMERCIAL COURT FOR THE REGISTERED ADDRESS OF EVELEAN SAS, EVEN FOR INTERIM PROCEEDINGS, except for matters of subject-matter or territorial jurisdiction which cannot be contractually overridden..

 

List of annexes:

Annex 1 "List of main modules/functionalities of the Platform"

 

******************************** [end of document] ***********************************

 

 

 Annex 1 - "List of main modules/functionalities of the Platform"

 

CMS functions

Creation and management of the website

Management of web templates

Creation and management of articles

Creation and managements of CTAs (“call-to-actions”)

Management of leads

Management of emailing campaigns

 

Segmentation functions

Automatic segmentation in two dimensions of incoming traffic.

Management of segmentation parameters

Dashboard

 

Optimization function

Automatic display of content depending on visitor segment

******************************** [end of document] ***********************************