between
Orange Cloud for Business, a simplified joint stock company with a registered capital of €1,019,470, registered with the Commercial and Companies Register of Bobigny under number 501 615 280, having its head office at 1 Place des Droits de l'Homme 93210 St-Denis La Plaine
referred to as "Orange Business Services",
of the first part,
and
the client of Webcom service
referred to as "the Client",
of the second part.
referred to collectively as the "Parties" or separately as "Party"
Before launching the commercialisation of its Webcom service (hereinafter referred to as "the Service"), Orange Business Services wishes to test it as part of an experimental phase, in order to allow the Client to assess this new service and Orange Business Services to analyse, in an operational phase, how appropriate the service is to its clients' businesses and environments.
The purpose of this agreement is to define the terms and conditions in which Orange Business Services provides the Client with the Service in the context of an experimental phase.
The smooth functioning of this experimental phase will be part of, for Orange Business Services, the confirmation of the generalised commercial launch of the Service.
This agreement does not prejudge any future changes to the Service and does not under any circumstances confer a right to continue the services provided after this agreement.
This agreement constitutes the whole of the agreement between the two Parties in so far as concerns the achievement of its purpose. Only an amendment signed by the Parties can modify, add or remove the Parties' obligations in respect of the above-mentioned purpose.
It prevails over any written or verbal agreements, all correspondence or proposals, as well as all other provisions included in the documents previously exchanged between the Parties and relating to the purpose of this agreement.
The purpose of the experimentation under this agreement is to test the Service under actual conditions, and more particularly allow the Parties to test the production and maintenance procedures. The result is the implementation of active collaboration between the Parties for the examination and commissioning of the Service.
The Client and Orange Business Services jointly define the environment of the experimental phase, its scope, as well as the means and organisation needed to ensure its smooth functioning.
This experimentation is limited to the Try invoicing tier which is limited in terms of use.
Orange Business Services shall implement the means needed for the smooth functioning of the experimentation but shall not be rendered liable for any difficulties that may arise during this experimentation.
In the event of a failure of the Service, Orange Business Services agrees to implement reasonable methods in order to solve any problems encountered and to re-establish the Service as quickly as possible.
Orange Business Services may need to carry out changes liable to temporarily affect the smooth functioning of the Service and shall endeavour, as far as is possible, to reduce any disruptions that may result for the Client. In the event that these changes may have consequences for the supply of the Service to the Client, Orange Business Services shall endeavour, in so far as is possible, to inform the Client at least two calendar days before the date for the work, via e-mail stating the forecast dates, times and durations of the interruption to the Service.
The Client agrees to:
The meetings for the interviews will be set in advance with the agreement of both Parties. The Client agrees to be available to actively take part in the different exchanges by sharing their experience and be driving force for the improvements expected from the Service.
An audio recording of these interviews may be made. "Audio recording" means the soundtrack of the Client's voice, on digital media and equipment, as well as the retranscriptions of the remarks, interventions or contributions during the interviews carried out in connection with the voluntary test session on the Client's premises
In accordance with the provisions relating to image rights and the right to personal data, an authorisation shall be requested from the Client in order to allow Orange Business Services to capture, edit, broadcast, keep, analyse and exploit the recordings, for research purposes exclusively, and for a period of time that shall not exceed two years, after this time all data will be destroyed. Orange Business Services shall expressly refrain from using recordings liable to infringe the Client's privacy.
It is expressly agreed that the recordings used shall not identify individuals for the purposes of operational marketing or purposes other than those of research and the analysis of uses in the area of communications technologies.
The act of placing an order implies that the Client fully accepts this agreement without reserve. The Client acknowledges that they have checked that Service is appropriate to their requirements and that they have received from Orange Business Services all the information and advice they need to knowingly accept this agreement. The Client agrees to work with Orange Business Services, in particular by providing it with precise details of the scope and nature of their requirements, all information concerning in particular their organisation, any special constraints liable to affect the provision of the Service, their technical and IT environment in particular and more generally all information liable to allow, facilitate or improve the provision of the Service.
5.1 For the execution of this agreement, Orange Business Services has a general obligation of means
5.2 The responsibility of Orange Business Services shall only be engaged, whatever the basis and the nature of the action, in the event of a proven fault by it that has caused the Client personal, direct and certain injury. The Parties expressly agree that the following typology of damages and/or injuries shall not lead to any compensation, whether or not these were reasonably foreseeable - loss of earnings, operating loss, loss of turnover, loss of clients, damage to image and loss of data.
Throughout the duration of the experimentation agreement Orange Business Services shall not be held liable.
This agreement takes effect from the time it is signed by the last of the Parties for a limited period extending until 31 December 2016 (hereinafter referred to as "Initial Duration").
If the Client wishes to take advantage of the Service and no longer be limited in terms of use, they will only be able to do so if they subscribe to the corresponding contract and in accordance with the commercial conditions in force.
Orders for the Basic Service and optional services signed under this agreement shall expire at the end of the Initial Duration save provision to the contrary in the article "END OF THE EXPERIMENTATION".
At the end of the experimentation, and in the event that the latter were to be generalised by Orange Business Services, the latter shall inform the Client of the commercial launch date of the Service and its conditions of supply.
The Client may then:
If the Client throughout the Initial Duration of the experimentation wishes to no longer be limited in terms of use to the Try invoicing tier and signs an order form then this experimentation agreement shall cease without any compensation being owed by either of the parties. The contractual conditions in force that will apply shall be those of the new contract signed by the Client.
In the context of this agreement, any information received by any Party from the other Party must be kept confidential unless said information is expressly qualified as being non-confidential by the Party that sends it to the other.
Within the meaning of this agreement, the following shall not be considered to be confidential information: (1) information in the public domain at the time it is made available or information that is in the public domain after it has been made available provided, in this latter case, that it is not the result of a breach of an obligation of confidentiality by the Party having been made aware of the information; (2) information for which the Party that is receiving it is able to prove that they knew it already in good faith and without any violation of any other obligation of confidentiality prior to its being made available in connection with this agreement; (3) any information made available after this agreement is signed by a third party and received in good faith and without any violation of any other obligation of confidentiality by the Party to which such information was made available.
The Parties therefore agree to not use said information or data when it is not necessary for the execution of this agreement and, to not disclose said information or data to any person other than their employees and sub-contractors within the strict limits of necessity of said disclosure for the correct execution of this agreement, save prior written authorisation from the other Party.
The Parties agree to fulfil the obligations resulting from this article throughout the duration of this agreement and the year following its termination. On termination of this agreement, for any reason whatsoever, any Party that receives confidential information agrees to return it to the other Party and destroy all duplicates that may have been made of such confidential information.
Orange Business Services shall not transfer any intellectual property right concerning any one of the elements (including software programs) made available to the Client.
The Client shall refrain from installing the software on other equipment, from carrying out or causing to be carried out, any modification, including to correct any errors that may arise. The Client shall refrain from any action designed to modify, translate, adapt, disassemble, decompile, reproduce with the exception of a back-up copy, to be used for the purposes of concurrent analysis, distribution or creation of derivative works, based on all or part of the software programs, save exceptions strictly defined by law.
In the event of non-compliance by any one of the Parties with any of their substantive obligations, this agreement shall be automatically terminated fifteen days after formal notice, by registered letter with acknowledgement of receipt that has remained without effect, without prejudice to any damages which the aggrieved Party may claim.Moreover, each Party may, for convenience, terminate this agreement by informing the other Party thereof in writing at the latest thirty days before the desired termination date.
The following are expressly considered by the Parties to be cases of force majeure, apart from those presenting the criteria adopted by the case-law of the French courts - fires, water damage, natural catastrophes, storms, strikes, floods, earthquakes, attacks, explosions, wars, military operations or civil unrest, hold-ups in the means of transport or supply, power cuts, any legislative or regulatory restriction to the supply of the Service, any decision by a public authority not attributable to Orange Business Services and preventing the supply of the Service.
A case of force majeure suspends the obligations of the Party concerned during such time as the force majeure shall apply. Nevertheless, the Parties shall endeavour to minimise the consequences thereof as far as is possible. If as a result of a case of force majeure one of the Parties is unable to fulfil its contractual obligations for more than 30 consecutive days, either of the Parties may end this agreement after sending a registered letter with acknowledgement of receipt without any possibility of invoking any compensation by either of the Parties.
This agreement shall not under any circumstances be assigned, in full or in part, by the Client to a third party without the express prior agreement of Orange Business Services.
This agreement is subject to French law.
agreement amicably. In the event of a dispute concerning this agreement that cannot be solved amicably, the Parties, by mutual agreement, attribute exclusive competence to the Paris Courts. This attribution of competence will also apply in summary procedures, third party appeals or in cases where there is more than one defendant.
The fact that one of the Parties does not require at any moment the strict execution by the other Party of a stipulation or condition whatsoever of this agreement shall not under any circumstances be deemed to constitute a waiver, of any sort, of the performance of this right.
If any one of the stipulations in this agreement were to be declared null and void following a legal decision or were to be amended following a decision by a national or community authority, the Parties shall endeavour in good faith to adapt its conditions of execution, it being understood that this invalidity shall not affect the other stipulations of this agreement.
Unless otherwise indicated to Orange Business Services when this agreement is signed, Orange Business Services may mention the business name of the Client, its logo(s) and/or distinctive signs, its brand, its service marks and other commercial designations of the Client by way of reference within its communications material.
The Parties agree to consider messages received by fax or e-mail and more generally any electronic documents exchanged between them, as original documents under Article 1316-1 of the Civil Code i.e. as having the same value as that granted to the original. The Parties agree to retain any faxes or e-mails such that they may constitute faithful and long-term copies under the meaning of Article 1348 of the Civil Code.
All notifications that need to be made in connection with this agreement shall be carried out in writing (letter, fax or e-mail) to the addresses respectively indicated in the header to this agreement.
Personal data relating to the Client collected in connection with the agreement to carry out the services and work provided for therein, are intended for Orange Business Services.
Such data are liable to be the subject of automated processing, in accordance with law N° 78-17 of 6 January 1978 relating to information technology, files and liberties (so-called "Data Protection Act") as amended by law n° 2004 801 of 6 August 2004.
Orange Business Services may forward these data to its partners for the purposes of monitoring and managing the said services and work.
These data may if applicable be transferred to a country outside the European Union for the purposes of executing the agreement.
Orange Business Services may use this information in particular traffic data with a view to developing and marketing products and services. Orange Business Services may moreover use this information in connection with direct marketing operations, save express opposition by the Client.
Save express opposition, personal data may be forwarded to partners for commercial operations.
The individuals concerned benefit in accordance with the "Data Protection Act" as amended, from a right of opposition, as well as a right of access and correction of any personal data concerning them with Orange Business Services.
For certain services, Orange Business Services collects personal data in the name and on behalf of the Client. In this case, the Client agrees to comply with the legal standards (in particular compliance with the dispositions of the "Data Protection Act" as amended) governing such information communication as well as their use, in particular in so far as concerns information that is directly or indirectly personal. In this respect, the Client (i) acknowledges that the responsibility of Orange Business Services, in its capacity as operator, may not be sought if such information is used by the Client for purposes other than those provided for, accepted or tolerated by the regulations relating to information technology, files and liberties and other associated regulations; (ii) shall be responsible for any damage caused to Orange Business Services, in the event that the Client were to fail to comply with the obligations defined by the regulations referred to in the agreement, the Client agreeing to defend and compensate Orange Business Services in this connection against all actions or threats of actions or claims by third parties, whether legal or otherwise, relating to any information sent and its use by the Client.
For certain services, the Client must send its data to Orange Business Services. Consequently, Orange Business Services agree to comply with the legal standards applicable to the communication of such data as well as their use, in particular the "Data Protection Act" as amended.As data manager in accordance with these legal standards, the Client guarantees Orange Business Services that it has fulfilled all its obligations, in particular the administrative declarations and procedures with the CNIL, and that it has informed the people concerned of the use that is made of these data. Consequently, the responsibility of Orange Business Services shall not be sought in this respect, and the Client guarantees Orange Business Services against any action, complaint or claim, whether legal or otherwise, from a User whose data were to be duplicated and hosted in connection with the performance of the agreement.