TERMS OF SERVICE OF PROCESS2WINE FREEMIUM SOLUTION
The present Terms of service apply to the Freemium version of the Process2Wine solution (hereafter the ‘SOFTWARE’).
Any use of the Freemium version of Process2wine implies the full and complete acceptance by the customer of these general terms.
The fact that ERTUS GROUP does not apply any article of these conditions at a given time may not be interpreted as a waiver of the right to invoke these general terms of sale and use at a later date.
THE FOLLOWING HAS BEEN STATED BEFOREHAND:
ERTUS GROUP Company (hereafter ‘ERTUS GROUP’) is the creator, developer and publisher of the Process2Wine solutions that it distributes via, in particular, the Basic, Standard or Enterprise Premium versions. The Process2Wine solutions allow the management of the wine production activity accessible in’Software as a Service’ mode (hereafter ‘SaaS’).
ERTUS GROUP has also developed a Freemium version of the Process2Wine software in order to present all of its functionalities to the Client and to authorize him to use some of them free of charge.
The Client wishes to use a Publisher specializing in the operation of management solutions (business, accounting, commercial and/or financial) in SaaS mode. It has requested ERTUS GROUP to obtain a Freemium license for the Process2Wine solution in order to use it and evaluate its adaptation to its needs and possibly place an order, at a later date, for a paying user license for the said solution.
The Customer acknowledges having received from ERTUS GROUP or its Authorized Distributor all the information necessary to assess the suitability of this Freemium license to its needs and to take all necessary precautions for the use of the SOFTWARE.
These Terms of service (hereinafter, ‘TOS’) define the conditions under which ERTUS GROUP provides the Customer with secure access to the SOFTWARE and the conditions of use as well as the rights and restrictions that the Customer accepts, fully and without reservation, by accessing the SOFTWARE and its associated Documentation.
Customer means the natural or legal person to whom the license to use the SOFTWARE has been granted.
Documentation means paper or electronic documentation including installation and user manuals relating to the SOFTWARE.
Data means the information, publications and, in general, the data in the Customer database, the use of which is the subject of this contract, which can be consulted only by Users.
Identifiers are both the User’s own identifier (‘login’) and the connection password (&’password’), communicated to the Customer after registration to the service.
Intranet refers to a company’s or organization’s own computer network, using TCP/IP protocols and, more generally, Internet technologies, which can be linked to the Internet.
SOFTWARE means ‘Freemium Version’ of the « Process2Wine » solution provided by ERTUS GROUP to the Customer. The SOFTWARE does not include corrections or updates.
Platform means the specific combination of hardware and software environment as specified by ERTUS GROUP and owned by the Customer, from which the Customer or Users can access and use the SOFTWARE. The list of certified Platforms is communicated to the Client by ERTUS GROUP and may be modified or changed at ERTUS GROUP’s discretion, of which ERTUS GROUP will inform the Client.
Authorized Distributor means the natural or legal person who supplied the SOFTWARE to the Customer.
Service means the provision of the SOFTWARE to which the Customer accesses by logging in with his identifiers.
User means the person under the responsibility of the Customer (employee, employee, representative, etc.) and benefiting from access to the SOFTWARE on his computer for internal and professional needs of the Customer.
ARTICLE 1: Provision of the SOFTWARE
1.1. Freemium version. ERTUS GROUP provides the Client with a Freemium version of the Process2Wine solution, i.e. a presentation version of this solution with a right of use, free of charge, limited to certain functions chosen by ERTUS GROUP, with a view to the Client testing the SOFTWARE and evaluating its adaptation to its needs.
Depending on the features chosen by ERTUS GROUP, the SOFTWARE allows the User to use certain functions of the vineyard module (Blocks, WO, Cartography, Products). This list is indicative and may be modified at any time by ERTUS GROUP.
The Customer acknowledges and agrees that the SOFTWARE is provided without any services, including but not limited to hosting, support, maintenance, data recovery, warranties or liability.
ERTUS GROUP may, at any time, close access to the SOFTWARE and / or its features, in whole or in part, subject to a notice of fifteen days.
1.2. Creation of a user account. To access the SOFTWARE, the Customer must first create a user account by following the instructions provided online on the ERTUS GROUP website, including the creation of an information sheet. The creation of a user account implies the Customer’s full and complete acceptance of these TOS, who must expressly accept the TOS, without restriction or reservation, when creating his user account. If the User does not agree with all or part of the TOS, he must not use the SOFTWARE. The TOS are applicable from their acceptance by the Customer until the termination of his User account.
The User account includes the Customer’s identifiers. The User undertakes to keep them secret and not to disclose them in any form whatsoever. If one of the Customer’s identification elements is lost or stolen, the Customer must inform ERTUS GROUP without delay, which will then immediately cancel and/or update the identifier concerned.
The User is solely responsible for the use that is made of his user account, including if it pre-records on a device its identifiers, allowing automatic connection to the SOFTWARE.
Any loss, misappropriation or unauthorized use of a User’s credentials and their consequences are the sole responsibility of that User.
Access to the SOFTWARE is reserved for Users who have read and accepted by clicking, these Terms in their entirety. The express acceptance of these Terms is done by checking the box or clicking on the hyperlink provided for this purpose. Without this acceptance, access to the SOFTWARE and its use are technically impossible.
ERTUS GROUP is concerned with the permanent improvement of its solutions. In return for this Freemium license, the Client agrees to provide ERTUS GROUP with his opinion on the SOFTWARE, its use, its qualities and defects, if any, and/or to participate in surveys and satisfaction questionnaires offered by ERTUS GROUP.
The Client guarantees the truthfulness and accuracy of the information he provides when creating his user account. Fraudulent use of the SOFTWARE or contravening these TOS may result in ERTUS GROUP closing the Customer’s user account at any time, and consequently his access to the SOFTWARE.
1.3. Delivery of SOFTWARE. The SOFTWARE is available through remote access via the Internet (SAAS mode) and considered as delivered by the provision of access identifiers to Users.
1.4. Reception-Reservations. It is the Customer’s responsibility to make any reservations to ERTUS GROUP, in writing, within five (5) working days of delivery of the SOFTWARE, by letter sent by recorded delivery. The Customer must provide ERTUS GROUP, at first request, with any justification of the reality of the non-conformity of the SOFTWARE. The Customer must allow ERTUS GROUP every facility to ascertain the non-conformity of the SOFTWARE, in particular the possibility of connecting with the Customer’s access codes to reproduce the problem in its context of use. At the end of the five (5) working day period for
ARTICLE 2: Licensing
Subject to compliance with these TOS, ERTUS GROUP grants the Client, for the number of Users defined in agreement with ERTUS GROUP, a personal, limited, non-exclusive, non-assignable and non-transferable right to access the SOFTWARE, in its executable form, and to use it via the Internet and a browser for an indefinite period.
These Terms constitute a license to use, giving the Customer the right to use, under the terms and conditions herein, the SOFTWARE referred to. The SOFTWARE is in no way sold, but its use is licensed. In any event, the license is personal to the Customer and cannot be transferred or loaned to others, any other use of the SOFTWARE is strictly prohibited. The use of the SOFTWARE is thus intended to cover only the internal and professional needs of the Customer, which excludes any shared service or office service. Unless
otherwise provided, the delivery of the SOFTWARE does not include its configuration, adaptation, customization, nor its adaptation to the needs of the Customer or the configuration of its Platform.
ARTICLE 3: Limitations
3.1 Restrictions. The SOFTWARE must be used in a compliant operating environment (media, network, server, etc.) that meets the requirements and specifications defined by ERTUS GROUP. The Customer undertakes to comply with these instructions and recommendations as well as any updates communicated subsequently. Any use not provided for herein is prohibited and, in particular but without limitation, the Customer undertakes not to (nor authorize a third party to) (i) install the SOFTWARE and use it for purposes other than those described in the Documentation, (ii) make any other copy, reproduce, alter, adapt, translate in any way, incorporate into other SOFTWARE, extract, in whole or in part, the SOFTWARE or its Documentation, create derivative works from the SOFTWARE, disassemble or reverse engineer it, or attempt to discover its source codes (which are deemed strictly confidential) (iii) modify the SOFTWARE in any way whatsoever, even to the extent of correcting any errors it may contain, this right being reserved exclusively to ERTUS GROUP, (iv) distribute, sublicense, distribute, assign, rent, lend, lease, sell, give or otherwise transfer, even free of charge, all or part of the SOFTWARE, by any means, to anyone, (v) remove, hide or alter any mention of ownership, any label, any legal mention, such as mention of trademarks or copyrights, affixed on or in the credits of the SOFTWARE or the associated Documentation. ERTUS GROUP expressly reserves the right to correct any errors that may be contained in the SOFTWARE to the extent necessary to ensure that the SOFTWARE is used in accordance with its Documentation and its purpose, but also the right to adapt, modify and make improvements to the SOFTWARE or its Documentation or to stopits commercial distribution, without prior notice and without obligation to notify anyone.
3.2. Technical terms and conditions relating to the SOFTWARE. Under this license, ERTUS GROUP provides the Client with access to the SOFTWARE under the conditions set out in these TOS, except for any interruptions required due to breakdowns, technical constraints related to the specificities of the Internet network, without all of these periods of constraint being able to engage the responsibility of ERTUS GROUP, or give rise to any right to compensation. The Customer designates and ensures the responsibility of persons who will have access to the SOFTWARE. The User must identify himself with a user ID and password that are personally assigned to him, the Customer being solely responsible for their use. The identifiers and access codes are strictly personal to the Customer’s Users, the Customer undertakes to respect the confidentiality and to assume custody. The Client guarantees, on its own behalf and on behalf of the Users, the proper use of the identifiers and access codes provided to it by ERTUS GROUP and the non-disclosure of passwords and other parameters that enable the use of the SOFTWARE to be secured. Under this license, access and use of the SOFTWARE requires access by the Customer to a telecommunications network. This service is not the responsibility of ERTUS GROUP and must be provided by a telecommunications operator of the Client’s choice and under its responsibility. The Customer is also responsible for the installation and configuration of the Platforms required to access and use the SOFTWARE. Under this license, the Client also undertakes to only have data that it owns or is authorized to hold reside on ERTUS GROUP’s servers. ERTUS GROUP undertakes not to divulge the content and guarantees exclusive access to this data from the Platforms designated by the Client. ERTUS GROUP shall not, under any circumstances, be held responsible for the nature and content of the data entered by the Client in the SOFTWARE. The Client has the sole right to choose whether or not to record, store, share, send or destroy this data, and assumes sole responsibility for these choices. ERTUS GROUP assumes no responsibility or guarantee for the hosting, storage, backup and recovery of the Client’s data, which the Client will be responsible for personally. The Customer is advised to periodically back up his data. The Client undertakes to use data in the forms and methods indicated by ERTUS GROUP, where applicable. The Client accepts that ERTUS GROUP reserves the right to refuse data that does not comply with the SOFTWARE and in particular that would be detrimental to its operation, without this constituting an obligation for ERTUS GROUP to check the said data. The Client is obliged to provide data free of any virus and to ensure that there is no infringement of any third party rights (trademark rights, image rights, copyright, neighboring rights, consumer rights, etc). ERTUS GROUP reserves the right to modify or interrupt access to the SOFTWARE, at any time, without compensation or obligation. ERTUS GROUP does not assume any guarantee or liability for the interruption or suspension of access to the SOFTWARE. It is the Customer’s responsibility to analyze the functional and technical characteristics of the SOFTWARE, to check its suitability for its own needs, and then to put in place the IT means to access the SOFTWARE and to control access to the hardware by third parties.
ARTICLE 4: Limitations on interoperability
The Customer is not authorized to carry out acts of decompilation in order to make the SOFTWARE interoperable with hardware or other software before informing ERTUS GROUP in writing and as long as the information required for interoperability is available or as long as ERTUS GROUP makes reasonable efforts to provide it. In any case, the Customer undertakes not to infringe the intellectual property rights attached to the SOFTWARE and to respect the legal and documented conditions of the SOFTWARE as well as its destination before seeking or requiring any interoperability.
ARTICLE 5: Support and maintenance
This Freemium license granted to the Customer is exclusive of any technical support, maintenance or training services.
None of these services will be provided under this Freemium license. As such, ERTUS GROUP does not guarantee the functioning of the SOFTWARE, without anomaly or error.
ARTICLE 6: Warranty
The Client is fully aware of the provisions of this article and in particular of the exclusions of guarantees under which ERTUS GROUP is bound, without which it would never have made the SOFTWARE available to the Client.
6.1 Limited warranties.
6.1.1. Warranty of operation. The operation of the SOFTWARE, properly installed and / or used on certified Platforms, unmodified and regularly updated, is guaranteed to comply with the functional and technical characteristics described in the Documentation, for the duration of these TOS.
6.1.2. Confidentiality of data. ERTUS GROUP undertakes to keep the existence and content of the Client’s data strictly confidential and shall refrain from taking cognizance of it, unless otherwise instructed by the Client. The Customer is solely responsible for maintaining the confidentiality of access to its local network and access to its computer facilities. The Customer also acknowledges that the identifiers and passwords provided by ERTUS GROUP to access the SOFTWARE are strictly personal. The Customer therefore undertakes to keep them secret and not to disclose them. Therefore, any use of his login and password presumes the use of the SOFTWARE by the Customer himself. The Client undertakes to notify ERTUS GROUP immediately by fax or email of any voluntary or involuntary communication to third parties or theft of its login and password. The Customer also undertakes to change its password without delay. It is the Customer’s responsibility to request ERTUS GROUP to activate, modify or deactivate the access codes to the SOFTWARE. A specific procedure will warn the Client of the need to renew the identifiers and passwords regularly to ensure that the data is perfectly secure.
6.1.3. Accessibility. The Customer acknowledges that, due to the complex nature of telecommunications networks, the latter are likely to present undetected or unidentified malfunctions or interruptions, excluding any liability of ERTUS GROUP. Furthermore, the Client must ensure that it has the tools and means of electronic communication and the skills to access the information provided in the context of the SOFTWARE. In particular, it is recalled that the Customer must, at a minimum, be equipped with a smartphone, a tablet or
a microcomputer connected to the Internet through an Internet service provider and programs called ‘Internet browsers’. As a prerequisite, access to the SOFTWARE is via IOS or Android.
6.3. Special provisions relating to the feature ‘full web application’ of the SOFTWARE. The Customer must have the skills, hardware and software required to use the Internet and acknowledges that the characteristics and constraints of the Internet do not guarantee the availability and integrity of data transmissions. The Customer declares that he/she is aware of and accepts the characteristics and limits of the Internet and in particular accepts (i) that ERTUS GROUP cannot in any way be held responsible for difficulties or speeds and slowdowns in accessing the SOFTWARE or for the non-routing of its data, (ii) that the nature of the Internet network and in particular its technical performance and response times for consulting, querying or transferring information or content, (iii) that ERTUS GROUP cannot be held responsible for the quality of the data transmitted over the Internet, (ii) that the nature of the Internet and in particular its technical performance and response times for consulting, querying or transferring information or content are not guaranteed and may affect access to and use of the SOFTWARE, (iii) that it is his responsibility to take all appropriate measures to safeguard and protect his data and / or software and / or hardware, (iv) that data transmissions on the Internet, (iv) that data transmissions on the Internet, which include heterogeneous networks with different characteristics and capacities and which are sometimes saturated at certain times of the day, are only relatively reliable technically and may affect access to and use of the SOFTWARE, ERTUS GROUP can not commit to the reliability of data, the time of their transmission, access time to the SOFTWARE, interruptions and/or restrictions of telecom operators’ access networks, data loss, display errors, display times, and in general, the technical performance of access to and use of the SOFTWARE linked to the Internet and/or telecom operators’; networks.
ARTICLE 7: Exclusion of liability clause
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE EXCLUSIONS OF LIABILITY SET FORTH IN THESE TOSS SHALL APPLY REGARDLESS OF THE BASIS OF LIABILITY. IN NO EVENT SHALL ERTUS GROUP BE LIABLE TO THE USER AND/OR THE CUSTOMER, INCLUDING IN THE EVENT OF A THIRD PARTY CLAIM, FOR ANY CLAIMS OR COSTS WHATSOEVER RELATING TO ANY DAMAGES, INCLUDING DIRECT AND/OR INDIRECT, MATERIAL AND/OR IMMATERIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF DATA, RECORDINGS OR CONTENTS, ANY INTERRUPTION OF BUSINESS OR THE FACT THAT DATA, RECORDS OR CONTENTS ARE RENDERED INACCURATE AND RESULTING FROM THE SOFTWARE AND ITS DOCUMENTATION, ITS USE OR THE IMPOSSIBILITY OF ACCESSING AND/OR USING IT, THE LACK OF MAINTENANCE, OR THE FAILURE OF THE SOFTWARE TO OPERATE WITH ANY OTHER PROGRAM, EVEN IF ERTUS GROUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, SHOULD ERTUS GROUP BE HELD LIABLE. NOTWITHSTANDING THE PROVISIONS OF THIS ARTICLE, ERTUS GROUP DISCLAIMS AND REFUSES ANY LIABILITY FOR USE OF THE SOFTWARE AFTER TERMINATION OF THIS AGREEMENT. EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW, WITHOUT THE POSSIBILITY OF WAIVER OR CONTRACTUAL LIMITATION, NO ACTION, STATUTORY OR OTHERWISE, RELATING TO ANY LIABILITY OR WARRANTY OF ERTUS
GROUP MAY BE BROUGHT MORE THAN ONE YEAR AFTER THE OCCURRENCE OF THE CAUSE OF ACTION.
IT IS FURTHERMORE EXPRESSLY AGREED BETWEEN THE PARTIES THAT ERTUS GROUP ASSUMES NO RESPONSIBILITY FOR THE USE OF THE SOFTWARE BY THE CLIENT AND FOR THE RESULTS OBTAINED FROM SUCH USE. THE CLIENT IS FULLY AWARE OF THE PROVISIONS OF THIS ARTICLE AND IN PARTICULAR OF THE AFOREMENTIONED EXCLUSIONS OF LIABILITY, WHICH ARE ESSENTIAL CONDITIONS FOR ERTUS
GROUP, WITHOUT WHICH IT WOULD NEVER HAVE MADE THE SOFTWARE AVAILABLE TO HIM.
ARTICLE 8: Intellectual property and copyright clause
The SOFTWARE is protected by international copyright laws and treaties, as well as by other international intellectual property laws and treaties. All copyrights and other rights relating to intellectual and industrial property, patents, trademarks, trade secrets, know-how, concepts and inventions, any interest, whether or not covered by applicable law, concerning the SOFTWARE as well as all copies, modifications, improvements, corrections, updates or new versions, belong to and/or remain reserved at all times to
The information provided by ERTUS GROUP in the context of the use of the SOFTWARE is the property of ERTUS GROUP and access to the SOFTWARE does not entail any transfer of rights to the Customer. The contents of the SOFTWARE may not be, even partially, the subject of a loan, assignment, data extraction and / or transfer on any medium.
In particular, the Client acknowledges and accepts that ERTUS GROUP is the owner of all intellectual property rights to the SOFTWARE, including its databases.
In particular, the following provisions are recalled:
– Article L. 122-4 of the Intellectual Property Code: “Any representation or reproduction in whole or in part, by any means whatsoever, made without the consent of the author or publisher, is unlawful”.
– Article L. 122-5 of the Intellectual Property Code: only ‘copies or reproductions strictly reserved for the use of the copier and not intended for collective use’ and « analyses and short quotations’ are authorized’.
– Article L. 342-1 of the Intellectual Property Code ‘The database producer has the right to prohibit: 1° Extraction, by permanent or temporary transfer of all or a qualitatively or quantitatively substantial part of the contents of a database onto another medium, by any means and in any form whatsoever;
2° Reuse, by making available to the public all or a qualitatively or quantitatively substantial part of the contents of the database, whatever the form’
Any representation or reproduction not respecting the legislation in force would thus constitute a counterfeit
sanctioned by the articles L. 335-2 and following of the Code of the Intellectual Property.
ARTICLE 9: Duration and termination
This Freemium license is granted to the Client for an indefinite period. In any event, ERTUS GROUP reserves the right to terminate this Freemium license, by right, at any time, without any other obligation or liability and without any judicial intervention being required, by giving 15 days notice, without said termination giving rise to any right to compensation, damages, reparation or indemnification whatsoever, for the benefit of the Client. The Client is fully aware of the provisions of this article, which is an essential condition for ERTUS GROUP, without which it would never have made the SOFTWARE available to it.
9.2. Termination. In any event and without prejudice to any other damages it may claim, each Party reserves the right to terminate any license to use, automatically and without judicial intervention, obligation or other liability, if the other Party fails to comply with the terms of these TOS or any other conditions relating to the SOFTWARE, subject to a notice period of fifteen (15) days provided that the defaulting Party has not terminated the breach within the said notice period. Upon termination for any reason, the Customer shall
immediately, if at all, cease to use the SOFTWARE in any way. All other features of the SOFTWARE will be blocked from the date of effective termination of the Agreement. The rights and obligations that, by nature, should continue after the end of this license will still be effective.
ARTICLE 10: Confidentiality clause
10.1 Confidentiality. ‘Confidential Information » means any information relating to the business of either of the Parties hereto, as well as any information relating to the partners, suppliers or others of the other Party with whom it has business relations.
The Parties acknowledge that the SOFTWARE and its Documentation constitute and incorporate Confidential Information, which is the product of original creative efforts, trade secrets and high added value, which ERTUS GROUP has developed, constituted, acquired or licensed by committing heavy investments in research and development. Each of the Parties undertakes to treat the Confidential Information of the other Party as strictly confidential and not to use it for its own purposes. The Parties agree not to remove or cause
to be removed any proprietary or confidentiality notices. The placement of copyright notices in the Confidential Information shall not constitute publication or otherwise compromise its confidential nature. The Confidential Information may only be used by the Parties to exercise their rights and obligations under the Agreement.
10.2 Disclosure. Each Party agrees not to disclose all or any portion of the Confidential Information of the other Party, or any other information that has been designated as confidential, to any person, entity or person, except to employees or consultants of each Party authorized to use the Confidential Information, provided that each Party agrees to hold them to the terms of these TOS. Each Party acknowledges that any unauthorized use or disclosure of the Confidential Information would cause the other Party, its customers
and partners, a definite prejudice. Each Party agrees to immediately inform the other Party of any unauthorized use or disclosure and to take all available measures, at its own expense, to restore the situation and prevent them in the future. No license, even if implied, is granted as a result of the disclosure of the Confidential Information.
10.3 Duration. This confidentiality agreement shall survive both the term of this Agreement and after its expiration for any reason whatsoever, and this (i) for the legal term of protection of intellectual property rights, including any extensions thereof, with respect to Confidential Information relating to intellectualproperty rights and (ii) for a period of five (5) years with respect to all other Confidential Information.
ARTICLE 11: Data processing
11.1 Personal data processed by ERTUS GROUP. The personal data collected within the framework of the Contract is necessary for the management, execution and processing of the Client’s Freemium license. This data is kept in secure conditions, according to current technical means, in compliance with the provisions of the French law on « Information Technology and Civil Liberties » and the ‘General Data Protection Regulation (known as RGPD)’;. They will be processed by the authorized departments of ERTUS
GROUP. In accordance with the law « Information Technology and Civil Liberties » of January 6, 1978 modified in June 2018, the Customer has the right to access and rectify information concerning him/her, which can be exercised by contacting email@example.com, or by sending a letter to the attention of: Wine Management Systems – Process2Wine – Ertus Group, 10 E. Yanonali St, Suite 15, Santa Barbara, 93101 California, USA, accompanied by a copy of an identity document.
The personal information of the Customer collected directly and whose seizure is obligatory is the subject of an automated treatment in particular for the purposes of:
– Carry out operations relating to the management of the Customer, in particular: (i) validation of the TOS, (ii) creation and management of the user account, (iii) follow-up of the commercial relationship. These data are used to enable the Customer to benefit from the use of the SOFTWARE. This minimum information is necessary for professional relations between the Client and ERTUS GROUP. The lack of information prevents the proper functioning of the SOFTWARE.
– Implement marketing operations and commercial solicitation including: (i) compiling commercial statistics, (ii) managing opinions and observations on the SOFTWARE, (iii) organizing promotional operations and events. ERTUS GROUP may use this personal information to send offers and promote its services to the Client and/or Users, in particular by e-mail, SMS, or mail. The use of personal data in this context is based on the legitimate interest of ERTUS GROUP in promoting its services.
– Managing requests in particular: ERTUS GROUP will use the Customer’s personal information when he contacts the customer service department in the context of a complaint, a request or the exercise of his rights. The use of personal data in this context is based on ERTUS GROUP’s legitimate interest and compliance with the company’s legal obligations.
11.2 Data belonging to the Client. If the Data hosted on ERTUS GROUP’s servers as part of the Service includes personal data, the Client guarantees ERTUS GROUP that it has fulfilled all the obligations incumbent upon it under the French Data Protection Act of 6 January 1978 and the General Data Protection Regulation (RGPD), and that it has informed the individuals concerned of the use made of said personal data. In this respect, the Client guarantees ERTUS GROUP against any recourse, complaint or claim from an individual whose personal data is reproduced and hosted within the framework of the Service. In any event, the Client is solely responsible for the quality, lawfulness and relevance of the Data and content used in the context of the Service. The Client also guarantees that it holds the intellectual property rights allowing it to use the Data and content. Consequently, ERTUS GROUP disclaims all liability in the event that the Data and/or content do not comply with laws and regulations, publicorder or the Client’s needs. The Client guarantees ERTUS GROUP at first request against any prejudice resulting from its being called into question by a third party for a violation of this guarantee. More generally, the Customer is solely responsible for the content and messages broadcast and/or downloaded via the Service. The Client remains the sole owner of the Data that he communicates for the use of the Service.
11.3 Data security. Each of the Parties undertakes to implement the appropriate technical means to ensure the security of the data processed.
ARTICLE 12 : Non-solicitation of personnel
The Client waives the right to hire or have employed, directly or through an intermediary, any employee of
ERTUS GROUP, without the latter’s express prior agreement. This waiver is valid for the entire duration of the Contract and for 12 months following its termination. In the event that one of the Parties should fail to comply with this obligation, it undertakes to compensate the other Party by paying it immediately and onsimple request, a lump sum equal to 6 times the gross monthly remuneration of the employee at the time of his departure.
ARTICLE 13 : Verification/Audit
The Customer undertakes, upon written request from ERTUS GROUP, to provide a written certificate, signed by a duly authorized representative: (i) certifying that the use made of the SOFTWARE complies with these TOS, particularly in terms of the number of Users, and (ii) listing the site(s) from which the SOFTWARE is used. The Customer authorizes ERTUS GROUP or its representatives to carry out an internal audit of the Customer’s files, IT environment and installations in order to verify the normal use of the SOFTWARE and
compliance with these TOS. This audit shall take place during working hours and shall not unreasonablyinterfere with the Customer’s business. ERTUS GROUP or its representatives, will be entitled to copy any information discovered during the audit and that the Customer would possess in violation of the TOS.
ARTICLE 14 : Applicable law and jurisdiction
The present conditions are subject to French law. The Parties elect domicile at their registered office. Any change in the registered office or address of one of the Parties shall not be binding on the other Party until eight calendar days after it has been duly notified. THE PARTIES UNDERTAKE TO ATTEMPT TO SETTLEANY DISPUTE ARISING FROM THE EXECUTION OR NON-EXECUTION OF THE CONTRACT OR IN RELATION TO THE CONTRACT, IN AN AMICABLE MANNER, BY NOTIFYING THE OTHER PARTY BY
REGISTERED MAIL WITH A REQUEST FOR ACKNOWLEDGEMENT OF RECEIPT OF ITS (THEIR)DEFAULT(S). IN THE ABSENCE OF A REPLY WITHIN FIFTEEN (15) WORKING DAYS AND/OR IN THE ABSENCE OF AN AMICABLE SETTLEMENT WITHIN THIRTY (30) DAYS FOLLOWING RECEIPT OF THENOTIFICATION, THE PARTIES MAY BRING THE DISPUTE WITHIN THE JURISDICTION OF THE HEAD
OFFICE OF ERTUS GROUP, TO WHICH JURISDICTION IS EXPRESSLY GRANTED, INCLUDING IN THE EVENT OF AN INJUNCTION, EMERGENCY PROCEDURE, CLAIM FOR GUARANTEE OR PLURALITYOF DEFENDANTS.
ARTICLE 15 : General provisions
Failure to exercise, partial exercise of, or delay in exercising any of the rights provided for in these TOS shall not constitute a waiver of such rights, nor a waiver of any other rights. Any waiver or modification of the TOS will only be effective if it is set forth in a written document.
If any of the provisions of the TOS are deemed null and void, they will be deemed unwritten, but the other provisions will retain their force and scope, unless the nullified provision is essential for ERTUS GROUP, in which case the contract will be deemed terminated as a whole. ERTUS GROUP may, unless the Client expressly objects, take advantage of the services provided to the Client at events, in publications and on its commercial documents and/or brochures. The Customer acknowledges and accepts that these TOS
constitute the entirety of the rights and obligations governing the use of the SOFTWARE in replacement of
any previous proposal or agreement, written or verbal.