Terms and conditions of service

Restricted publication

The information contained in this document contains confidential information that should only be disclosed to relevant persons within the Client’s organisation; it should not be published or disclosed to third parties, either in whole or in part. This restriction does not in any way limit the Client’s rights to use this information if it obtains it from a source that is not subject to any restrictions.

This information, which may be subject to change if necessary, has been carefully checked and is considered to be entirely accurate. However, we cannot be held liable for any errors. DV DIGITAL also reserves the right to modify any of the products or services described in this document in order to improve their reliability, operation or principle. The customer is solely responsible for the application or use of any of the products described in this document.

DV DIGITAL does not hereby assign any rights related to its patents or those of third parties.

These General Terms and Conditions (hereinafter referred to as the ‘General Terms and Conditions’) apply between DV DIGITAL, a simplified joint stock company with a capital of €96,453.39, registered in the Lyon Trade and Companies Register under number 424 106 763, whose registered office is located at 42 route du Pont de Chêne – 69340 FRANCHEVILLE (hereinafter referred to as ‘DV DIGITAL’ or the ‘Service Provider’) and the customer (hereinafter referred to as the ‘Customer’), having signed an Order Form that incorporates these General Terms and Conditions by reference.

 

PREAMBLE

DV DIGITAL markets software packages designed and developed by other publishers (hereinafter referred to as ‘Third-Party Software Packages’ or ‘Software Packages’). The Software Packages offered by DV DIGITAL are standard products designed to meet the needs of the majority of Customers. Therefore, the Customer is solely responsible for drawing up specifications or expressing requirements. It is the Customer’s responsibility to assess their own needs extremely accurately and to ensure that the Software Packages and services they choose are appropriate for their own needs, based on the information provided by the Service Provider and the presentations and demonstrations carried out by DV DIGITAL. By not having asked DV DIGITAL for further details and/or attended an additional demonstration of the Software Packages prior to signing this agreement, the Client acknowledges that they have been sufficiently informed. DV DIGITAL cannot be held liable for any inadequacy of a feature of the Software Package to meet a need that is not expressly defined and detailed in the Client’s specifications, which, for unspecified needs, undertakes to adapt to the standard features. The specifications or equivalent document may only be taken into account after express validation by the Service Provider, prior to the signing of this agreement and, where applicable, to be included as an appendix to this agreement for information purposes.

Failing this, the document shall be deemed non-existent.

 

Article 1: Scope of Application of the General Terms and Conditions

DV DIGITAL does not recognise any of the Customer’s general terms and conditions of sale and/or purchase, whether they differ in whole or in part from these terms and conditions, unless the Service Provider has agreed otherwise in writing. Any clause to the contrary shall be deemed null and void. Unless otherwise agreed in writing by the Service Provider, the General Terms and Conditions of Sale shall remain applicable to future transactions between the Parties, notwithstanding any reservation or clause to the contrary by the Customer. DV DIGITAL is authorised to modify the content of these General Terms and Conditions of Sale, subject to notifying the Customer of the existence of such modification and its effective date, inviting them to read the new text of the General Terms and Conditions of Sale. The Customer’s agreement shall be deemed to have been obtained in the absence of written opposition within thirty (30) days of such notification, which shall result in the immediate and automatic entry into force of the amended General Terms and Conditions at the end of this period, or from the date of entry into force indicated by DV DIGITAL in the aforementioned notification.

 

Article 2: Definitions

In the General Terms and Conditions, terms and expressions identified by a capital letter have the meanings indicated below, whether used in the singular or plural:

“Affiliate”: Refers to any entity controlled by the Customer (the term ‘control’ being understood as defined in Article L 233-3 of the French Commercial Code).

“Anomaly”: Refers to a bug or incident that prevents the normal functioning of the Software Packages and/or Applications. Anomalies are classified into three (3) categories, according to their degree of severity.

– Blocking: Reproducible anomalies (including those that may be recurrent) which, individually or cumulatively, render the Software Package inoperative, or which block the use of an essential function of the Software Package, or which cause an erroneous result in the calculation methods of a function, and for which there can be no technical or organisational workaround.

– Major: Reproducible anomalies (including those that may be recurrent) which, individually or cumulatively, render the Software inoperative, or which block the use of an essential function of the Software, or which cause an erroneous result in the calculation methods of a function, but for which there is a technical or organisational workaround.

– Non-Blocking: Reproducible anomalies (including those that may be recurring) for which there is a technical or organisational workaround.

“Application”: Refers to standard computer programs designed and developed by DV DIGITAL and/or its subsidiaries and for which the Customer acquires, where applicable, a right of use under the conditions and according to the thresholds determined in the Order Form.

“Purchase Order”: Refers to the document signed by the Customer describing the items ordered, the term of the Contract and the financial conditions specific to the performance of the Services.

“Customer”: Refers to any natural or legal person using the Software Package’s features for their internal management needs.

“General Terms and Conditions”: Refers to this document.

“Special Terms and Conditions”: Refers to the document containing the description of the items ordered, their price and the terms of payment. They are also referred to as the ‘Order Form’.

“Contract”: the Contract consists of the Special Terms and Conditions supplementing these General Terms and Conditions and its appendices. Only the Contract and its appendices constitute the contractual documents, to the exclusion of any previous proposals and any correspondence exchanged between the Parties prior to the signing of the Contract. These General Terms and Conditions may be sent to the Client provided that the request is sent to the Service Provider by registered letter with acknowledgement of receipt. They are also available for consultation and download on the Service Provider’s website and thus comply with Article L441-6 of the French Commercial Code, which stipulates that communication by a service provider must be carried out by any means in accordance with professional practice. The Service Provider recommends that the Client read the General Terms and Conditions via this permanently available means of access. Any modification or alteration made to the pre-printed part of this document must be confirmed in writing by the Service Provider. Otherwise, the modification or alteration shall be deemed null and void. Consequently, placing an order implies the Client’s full and unreserved acceptance of these General Terms and Conditions, to the exclusion of any other document such as prospectuses or catalogues issued by the Service Provider, which have no value (sales, maintenance, specific development, distribution, etc.). All details and additions made by the Service Provider to the subject matter of the Contract, and brought to the Customer’s attention by any means, unless expressly contradicted by the Customer prior to the signing of the Contract, shall be deemed to have been accepted by the Customer and to form an integral part thereof.

“Documentation”: Refers to the description of the Software Package’s features and instructions for use. It is provided in electronic form in French or English and may take the form of online help for using the Software Packages.

“Data”: Refers to all data, including Personal Data, contained within the Customer’s Technical Environment and which is managed and/or generated by the use of the Software Packages and Applications.

“Personal Data”: Refers to personal data that the Client processes in connection with the performance of the Contract, within the meaning of Directive 95/46/EC and Law No. 78-17 of 6 January 1978, as amended, known as the Data Protection Act, and, as of 25 May 2018, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (known as the ‘GDPR’), this set of regulations being referred to hereinafter as the ‘Applicable Regulations’.

“Publisher”: Refers to the holder of the copyright on the Software Packages, for which a licence for use has been granted to the Customer.

“Technical Environment”: Refers to the information system available to the Customer prior to the installation of Third-Party Software Packages and/or Applications. In order for the Third-Party Software Packages and Applications to function in accordance with their Documentation, the Customer’s technical environment must comply with the Technical Requirements.

“Fixed Price”: Refers to the performance of the Services, within a contractual scope, in accordance with the financial terms and conditions and within a timeframe agreed between the Parties.

“Licences”: Refers to the rights of use granted to the Customer for the Software Packages and/or Applications, in accordance with the General Licence and Service Terms and Conditions, where applicable by separate Purchase Order.

“Licence Software Designation Agreement” (or ‘LSDA’): Refers to the End User Licence Agreement contained in the Third-Party Software Packages, which the Customer must read and accept in electronic form when installing the Third-Party Software Packages in order to use them.

“Offer”: Refers to DV DIGITAL’s technical and financial response to the needs expressed by the Customer in a set of specifications. For a Fixed-Price Project, this Offer shall constitute the contractual scope of the Services provided by DV DIGITAL.

“Technical Requirements”: Refers to the list of hardware and software environments recommended by the Service Provider and suitable for use with the Software Packages offered.

“Contractual Scope”: Refers to the Fixed-Price Services included in the Special Terms and Conditions and referred to in the DV DIGITAL Offer.

“Services”: Refers to the services provided by DV DIGITAL as set out in the Special Terms and Conditions. Depending on the provisions of the Special Terms and Conditions, these include the activation of the essential functions of the Software Packages and Applications. Where applicable, depending on the choices made by the Customer, they will include training on Third-Party Software Packages and Applications. However, unless otherwise agreed, they do not include data recovery or the creation of interfaces, for which a preliminary study must be carried out by DV DIGITAL, under the terms of a specific order.

“Third-Party Software Package(s)” (or “Software Packages”): Refers to software packages, in the form of object code, designed and marketed by Publishers other than DV DIGITAL and for which the latter has a right of use, intended to be supplied to several Users for the same application and the same function. They include their magnetic media and associated Documentation.

“Project”: Refers, for Services provided on a fixed-price basis, to the description of the Client’s Project within DV DIGITAL’s Offer.

“Time and materials”: Refers to the provision of Services on an ongoing basis and invoiced according to the number of days actually worked by DV DIGITAL, based on the average daily rate mentioned in the Special Terms and Conditions.

“Site”: Refers to the location declared by the Client in the Special Conditions as the location of the server on which the Software Package covered by these Terms and Conditions is installed. This Site may be different from the site(s) where the Users are located.

“Services”: Refers to the support and maintenance services provided by DV DIGITAL under a separate contract, in accordance with the General Terms and Conditions of Licence and Services.

“User”: Refers to individuals who are subordinate to the Client or its Affiliates and authorised to use Third-Party Software Packages and/or Applications, under the terms of these General Terms and Conditions and in accordance with the thresholds or quantities mentioned in the Special Terms and Conditions.

 

Article 3: Contractual documents

The Contract is formed between DV DIGITAL and the Customer by the following contractual documents, presented in descending order of legal value:

– the Special Terms and Conditions and, where applicable, the Service Provider’s Offer

– where applicable and in the event of the purchase of Licences, the General Terms and Conditions of Licence and Associated Services,

– these General Terms and Conditions of Service,

– their Annexes.

In the event of any contradiction between one or more provisions contained in the above-mentioned documents, the higher-ranking document shall prevail. No specific handwritten annotations added by the Customer shall be valid unless expressly accepted by DV DIGITAL.

The Customer further acknowledges that these Terms and Conditions constitute an independent contractual document that is in no way dependent on any other contract entered into with the Customer, even if the latter relates to the same Software Packages and/or Applications. Furthermore, the termination of the Services for any reason whatsoever shall have no effect on these General Terms and Conditions, which shall continue to apply to Licences acquired prior to such termination. Consequently, any sum remaining due by the Customer under these General Terms and Conditions shall be paid to DV DIGITAL, it being understood that the latter shall not refund any sum already paid under these terms and conditions. The Customer further acknowledges that the provisions of Article 1186 of the Civil Code relating to lapse cannot be invoked by the Customer to release it from its contractual obligations towards DV DIGITAL.

 

Article 4: Entry into force – Duration

Unless the Contract is terminated under the terms of the ‘Termination’ section of these General Terms and Conditions, the Contract is concluded for the duration of the Services, which corresponds either to the number of days (when the Services are performed on a time and materials basis) mentioned in the Purchase Order or to the duration of the Services included in the Scope of the Project (when the Parties have expressly agreed on a Fixed Price).

 

PROVISIONS RELATING TO BENEFITS

Warning: It is the sole responsibility of the Customer to use its internal expertise or third parties of its choice to: draw up specifications, choose the appropriate hardware and software packages based on their technical characteristics, carry out the necessary tests and acceptance procedures, etc.

In particular, as part of its advisory obligation, DV DIGITAL informs the Customer that the services and benefits it offers are necessary for the proper use of the Software Packages and Applications. Therefore, it is the Customer’s responsibility, in light of its needs and under its sole responsibility, to assess the advisability of not using DV DIGITAL’s Services. If the Services are not used, DV DIGITAL cannot be held liable for any inadequacy in relation to the needs expressed. DV DIGITAL’s sole obligation, which the Customer expressly acknowledges and accepts, is therefore to supply the Software Packages and Applications that have been ordered and that it markets. Thus, unless otherwise agreed in writing with the Customer, DV DIGITAL shall under no circumstances be required to provide services or supplies other than those expressly agreed in the Special Terms and Conditions or in a subsequent order relating thereto.

Limitations: DV DIGITAL does not guarantee that the Services will achieve the objectives or results set by the Client and/or perform specific tasks that motivated the Client to enter into this Agreement but which, on the one hand, exhaustively set out in writing beforehand and which, on the other hand, have not been expressly validated by DV DIGITAL under the conditions defined in the Preamble.

 

Article 5: Cancellation – Postponement of Services

Customers who wish to change a scheduled date for the provision of an On-site Service must notify DV DIGITAL by post or email at least eight (8) working days before the start date of the Service. In the event of cancellation or postponement less than forty-eight (48) hours before the scheduled date of performance of the Service, a daily flat-rate cancellation fee may be charged to the Client. In the event of cancellation or postponement between forty-eight (48) hours and eight (8) working days before the scheduled date of performance of the Service, an amount equal to fifty (50)% of the daily fixed cancellation fee may be claimed from the Client. The daily flat-rate cancellation fee is set by default at €1,200 excluding tax and may be amended in the special conditions.

 

Article 6: Delivery of Software Packages

The Software Packages are delivered in the form of object codes. They may be protected by a USB protection key, the installation of a code file, the use of an activation code or other means of control that materialises the Software Package User Licence. These object codes are available through various media: DVD, activation code, secure download link, etc., enabling installation of the Software Package.

Damage to or loss by the Customer, as well as theft of the protection key, shall be deemed to constitute damage to, loss of, or theft of the Software Package. In this case, the Customer shall purchase a new Software Package at the price in effect on the date of purchase of the new licence. The activation key representing the Software Package user licence is programmed to contain the features that the Customer has ordered based on the Documentation provided to them, as well as the services and demonstrations provided by the Service Provider. These features, also known as modules, are clearly specified in the Order Form. Consequently, the Customer acknowledges and accepts that when using the Software Package, modules that have not been ordered are neither accessible nor usable. If, after purchasing the Software Package, the Customer wishes to have access to a module that was not initially ordered, they must place a new order with the Service Provider for the chosen module. In this case, the delivery of the ordered module will be carried out, by reprogramming the Customer’s protection key, at the Service Provider’s discretion, either remotely via remote maintenance or by delivery of a new protection key to the Customer.

The Customer is informed that only its qualified personnel are authorised to prepare the Technical Environment for the installation and configuration of the Software Package and to provide training in the use of the Software Package.

Consequently, in accordance with its duty to advise, the Service Provider strongly urges the Customer to order the preparation, installation, configuration and training services related to the installation of the Software Packages. In the event that the Customer refuses to order these services, the Service Provider shall not be held liable for any consequences resulting from improper preparation of the equipment, non-compliant installation, incorrect configuration or misuse of the Software Packages. The Client is therefore informed of the risks associated with the installation of the Software Packages by persons other than the qualified personnel provided by the Service Provider.

 

Article 7: Acceptance

Unless using a Service, the Customer shall install the Software Packages and/or Applications under its sole responsibility. The Customer undertakes to accept them upon delivery, provided that they comply with the Purchase Order and their Documentation. Any refusal of delivery must, in order to be taken into account, be brought to the attention of DV DIGITAL’s head office by registered letter, duly justified, within forty-eight (48) days of delivery. In the event of refusal of delivery not expressed in the required form and within the required time limit and/or without justification, the Customer shall be deemed to have unilaterally and wrongfully terminated the Contract and, as a result, the Service Provider may claim the total amount of the order from the Customer. In the case of downloads, acceptance of delivery shall be deemed to have taken place at the end of the download.

 

Article 8: Description of Services

8.1. Services provided on a time and materials basis. The Service Provider shall perform the Services described in the Special Terms and Conditions, according to the number of days specified therein, in return for payment, as and when they are performed, of the price agreed between the Parties, according to the average daily rate specified in the Order Form.

The Service Provider shall send the Client, as necessary, a summary of the days of Services performed, where applicable in the form of intervention reports, on the basis of which payment for the Services shall be required.

In any event, it is understood that in the context of Services performed on a time and materials basis, the Service Provider shall only be required to perform the number of days of Services specified in the Special Conditions, to the exclusion of any other obligation, in particular with regard to a specific result or schedule of performance.

 

8.2. Services provided on a fixed-price basis.

 

8.2.1. Terms and conditions for the performance of Services.Where applicable, the Parties may expressly provide for the Services referred to in the Special Conditions to be performed on a fixed-price basis. In this case, the Fixed Price shall constitute the Service Provider’s commitment to perform the Services included in the Contractual Scope, at a total cost known in advance and accepted by the Client, the terms of which may only be revised in the event of unforeseeable circumstances or circumstances that cannot be determined in advance, in particular in the cases referred to below:

When the Services required to activate the Software Package features are ordered, they are performed by an authorised technician sent to the Installation Site by the Service Provider. The travel expenses of this technician shall be borne by the Customer and invoiced at the rate in force on the day of travel. Once the Services have been performed, the Customer is invited to proceed with the acceptance of the Software Packages and Services (the ‘Acceptance’ being defined as the verification by the Customer, under its own responsibility, of the installation and configuration carried out, in accordance with the management rules expressed and included by DV DIGITAL in specifications, where applicable, established and validated by the Customer during the preparatory workshops for the Services).

The Customer undertakes to commence provisional acceptance testing based on the test sets it has previously established. Once the Customer has completed the test sets, and within a maximum of ten (10) days, a provisional acceptance report shall be signed by the Parties. This provisional acceptance report shall specify any Anomalies detected by the Client on the basis of the reference framework constituted by the Contract, the online Documentation for the Software Package and the specifications of the equipment manufacturer, as well as, where applicable, the specific requirements exhaustively listed by the Client in the specifications appended to the Contract and including the Service Provider’s responses. The Service Provider shall have a period of twenty (20) working days from the date of the provisional acceptance report to correct any reproducible Anomalies in the Software Package identified by the Client in the provisional acceptance report and not disputed by the Service Provider.

When the Service Provider has remedied these defects and Anomalies, the Parties shall sign a final acceptance report.

Final acceptance shall be deemed automatically granted between the Parties, without the need to sign a final acceptance report:

• in the absence of Blocking Anomalies at the end of the above-mentioned time limits relating to the provisional acceptance, i.e., if no anomaly was identified at the end of the test run phase
• in the event that the Software is put into production with real data, provided that no reservations have previously been notified to the Service Provider.

The final acceptance of the Software shall constitute acknowledgment by the Client of the full conformity of the Services and, more generally, of the proper performance by the Service Provider of its obligations, in accordance with the contractual scope defined between the Parties.

 

8.2.2. Warranty. Following Acceptance, the Service Provider undertakes to correct any faults, errors, or defects contained in the Services for a period of one (1) month after final Acceptance, provided that the Client has complied with its obligations as described in the article “Client’s Obligations,” as well as in the contractual documents referred to in Article 3. The Client is required to keep intact and unchanged the various environments (test, pre-production, etc.) used for Acceptance throughout the warranty period. This undertaking is limited to the most recent version of the Software and its immediately preceding version. For the purposes of this Agreement, the terms “faults,” “errors,” or “defects” refer to significant deviations between the Software and the corresponding functional specifications. If the correction is included in the next revision, it shall be delivered together with that revision upon its release.

The corrective activities covered by the warranty do not include: Costs incurred for restoring corrupted files that cannot be recovered from backups; assistance provided to individuals who have not received any training on the Software covered by this Agreement; relocation and repair of hardware; assistance required due to malfunction of the telephone network, electrical network, or cabling; restoration of archives; costs incurred for bringing files up to date following data entry or user handling errors; reinstallation of the server operating system and client workstations; modification or reinstallation of server or client workstation settings, particularly for printers; creation of a new environment such as shared folders or new users; database administration; addition of hardware or software to the base configuration; verification of backups; reinstallation of all Software; as well as shipping, handling, and packaging costs.

 

8.2.3. Provisions specific to SaaS solutions : As part of the implementation of solutions provided in SaaS (Software as a Service) mode, in particular solutions hosted by a third-party Publisher such as Teamcenter X by SIEMENS, the Client acknowledges and accepts the following provisions:

 

1. Hosting and Operational Responsibility
   The hosting, operation, security, availability, service continuity, backups, and performance of the SaaS solution fall exclusively under the responsibility of the Publisher or its infrastructure provider. DV DIGITAL does not intervene in the operation of the platform and shall not be held liable for any unavailability, performance degradation, data loss, or incident attributable to the SaaS infrastructure.

2. Service Levels (SLA)
   Commitments regarding availability, support, and maintenance of the SaaS solution are defined by the Publisher’s contractual terms and service level agreements (SLA). Any request relating to these commitments falls under the responsibility of the Publisher. The role of DV DIGITAL is limited, where applicable, to assisting the Client in submitting and monitoring such requests.

3. Scope of DV DIGITAL’s Services
   DV DIGITAL’s services within the framework of a SaaS project are strictly limited to the services described in the Specific Conditions, such as:

• consulting and support,
• functional setup and configuration,
• potential integration with the Client’s information system,
• training and go-live assistance.

DV DIGITAL is bound by a best efforts obligation (obligation of means) in the performance of these services.

 

1. Dependence on the Publisher’s Developments
   The Client acknowledges that functional, technical, or architectural changes to the SaaS solution are decided unilaterally by the Publisher. DV DIGITAL shall not be held liable for any potential impact of such changes on the Client’s uses, integrations, or specific configurations.

2. Client’s Connectivity and Environment
   The Client remains solely responsible for the quality of its Internet connection, network, equipment, and, more generally, its technical environment enabling access to the SaaS service.

 

In the context of solutions provided in SaaS mode and hosted by a third-party Publisher, the Client acknowledges and agrees that DV DIGITAL does not have full or direct access to:

• the hosting infrastructure and technical environments of the solution,
• the underlying databases and the system data model,
• the internal administration, maintenance, or application correction mechanisms.

Consequently:

1. No Commitment to Technical Correction
   DV DIGITAL cannot undertake to directly correct any anomaly, error, malfunction, or non-compliant behavior arising from the internal operation of the SaaS solution, its data model, its architecture, or its hosting infrastructure.
2. Exclusive Responsibility of the Publisher
   The correction of technical anomalies, software defects, performance malfunctions, operational incidents, or any service disruption falls exclusively under the responsibility of the Publisher, within the framework of its contractual commitments and service level agreements (SLA).

3. Role of DV DIGITAL
   DV DIGITAL’s role is limited to:

• analyzing and qualifying incidents within the limits of the elements accessible to it,
• proposing, where applicable, functional or organizational workarounds,
• assisting the Client in reporting and monitoring requests with the Publisher.

In this respect, DV DIGITAL is bound by a best efforts obligation and shall not be held liable for correction timeframes, processing methods, or decisions taken by the Publisher.

1. Specific Warranty Exclusion
   The correction warranty provided in respect of the Services shall not apply to anomalies or malfunctions resulting from:

• the standard operation of the SaaS solution,
• technical limitations of the platform,
• upgrades or updates imposed by the Publisher,
• or any element falling within the technical scope not accessible to DV DIGITAL.

Article 9: Training

9.1. Training Content.
The content of DV DIGITAL’s training sessions is described in the training materials, which may be provided to the Client upon simple request. If the Client wishes to obtain a training agreement, it must request one from DV DIGITAL and accept the pre-printed document entitled “Training Agreement.” Any agreement issued on the basis of the information initially provided by the Client may not be modified (including the number and names of trainees) and will be subject to the corresponding invoicing.

9.2. Paying Organization.
The Client remains liable towards DV DIGITAL for the training fees incurred, even if the invoice is issued to a paying organization at the Client’s request. Any invoicing by DV DIGITAL to a paying organization shall give rise to administrative handling fees in the amount of one hundred ninety (190) euros excluding VAT. The preparation and monitoring of any file with a paying organization are the Client’s responsibility and fall under its sole liability. In this respect, the Client undertakes to provide DV DIGITAL, prior to the delivery of the relevant training session(s), with confirmation of coverage from its paying organization. Failing this, the training shall be invoiced directly to the Client, who agrees thereto, and shall be payable by the Client in accordance with the provisions set out in the article “Payment Terms.” Any invoice issued shall become due and payable without modification after its issuance.

9.3. Registrations.
Registrations are processed by DV DIGITAL in the order in which registration forms are received. If the selected training session is fully booked on the date of registration, a new date will be proposed to the Client. Registration shall be confirmed by DV DIGITAL no later than eight (8) days before the start of the session.

9.4. Participants.
The Client registering a participant must ensure that the participant has the required level and motivation necessary for understanding and successfully completing the training session(s) provided. The Client’s trainees attending each day of training undertake to sign DV DIGITAL’s daily attendance sheet.

9.5. Performance Terms.
Training Services shall be performed by DV DIGITAL in accordance with the following arrangements:

Multi-client sessions at DV DIGITAL’s premises:
When training services are delivered at premises made available by DV DIGITAL, the Client shall bear its own meal and travel expenses.

Services at the Client’s premises:
The trainer’s meal and travel expenses shall be invoiced to the Client on a flat-rate basis in accordance with the conditions defined in the “Purchase Order.”

Training upon proposal:
At the Client’s request, a customized training proposal with pricing shall be prepared by DV DIGITAL and accepted by the Client. The training may take place either on-site or at DV DIGITAL’s premises. Travel and/or meal expenses shall be invoiced in accordance with the conditions defined in the “Purchase Order.”

Web Training Services:
Where applicable, DV DIGITAL may offer training in the form of Web Training Services or e-learning. To attend Web Training Services provided by DV DIGITAL, the Client must have an operational telephone connection and internet access. The implementation and proper functioning of these elements shall, in any event, remain the Client’s responsibility.

9.6 Cancellation and/or Postponement

Cancellation and/or Postponement by the Client:
Any Client wishing to modify the date of registration or cancel participation in a training session must notify DV DIGITAL’s training department by letter or email sent at least eight (8) business days prior to the start date of the session.

In the event of cancellation or postponement occurring less than forty-eight (48) hours before the scheduled start date of the session, a flat-rate cancellation fee equal to one hundred percent (100%) of the session price may be charged to the Client.

In the event of cancellation or postponement occurring between forty-eight (48) hours and eight (8) business days before the scheduled start date of the session, a flat-rate cancellation fee equal to fifty percent (50%) of the session price may be charged to the Client.

If, in the absence of cancellation or postponement under the conditions specified above, the Client fails to attend the scheduled session, a flat-rate absence fee equal to one hundred percent (100%) of the session price may be charged to the Client.

Postponement by DV DIGITAL:
A training session may be postponed if the number of participants is insufficient. A session scheduled at the Client’s premises may also be postponed in the event of the trainer’s unavailability or the unavailability of the initially planned means of transport (e.g., strikes, severe weather).

The Client shall be informed as soon as possible once DV DIGITAL becomes aware of the event.

 

Article 10: Intellectual Property

10.1. Results of the Services.
Each Party shall retain ownership of the intellectual property rights belonging to it prior to the effective date of the Agreement.

DV DIGITAL shall retain ownership of the deliverables resulting from the Services, such as configurations and interfaces, as well as documents, studies, products, and data created or provided by DV DIGITAL under the Agreement (hereinafter the “Results”). All rights relating to the Results are and shall remain vested in DV DIGITAL. This Agreement does not operate as a transfer of ownership rights for the benefit of the Client, nor does it create any joint ownership between the Client and DV DIGITAL with respect to the Results.

DV DIGITAL grants the Client a personal, non-exclusive, non-transferable, and non-assignable right to use the Results for the operation of the Software, under the terms and within the limits set forth in the General License and Services Conditions. Consequently, the Client shall refrain from making the Results available to any third party, whether directly or indirectly, whether for consideration or free of charge, in any form whatsoever and for any reason whatsoever.

10.2. Know-How : Each Party shall remain the sole owner of the know-how it possesses independently of this Agreement or that it acquires during the performance of this Agreement, and shall therefore remain free to use it. Accordingly, DV DIGITAL shall be free to perform similar services for other Clients. Neither Party may claim any rights whatsoever over the other Party’s know-how.

 

FINANCIAL PROVISIONS

 

Article 11: Price

The prices of the items ordered under the Agreement are stated in Euros, excluding taxes, and are set out in the Specific Conditions and/or in the Purchase Order.

 

Article 12: Invoicing and Payment

12.1. Time and Materials Services

Where the Services are performed on a time and materials basis, they shall be invoiced to the Client as they are carried out, within the limit of the number of days set out in the Specific Conditions, and at the daily rate stipulated in the Agreement.

DV DIGITAL’s invoices shall include a statement of the number of days invoiced, where applicable, based on intervention reports which shall be made available to the Client.

 

12.2. Fixed-Price Services

For Services performed on a fixed-price basis, the Client shall pay, on the date of signature of the Agreement, a deposit equal to thirty percent (30%) of the total amount of the Services, excluding VAT and excluding training services. The balance shall be paid in accordance with the schedule set out in the Service Provider’s Proposal, where applicable, based on the identified Project milestones.

 

12.3. Payment Terms

DV DIGITAL’s invoices shall be paid by the Client by bank transfer or direct debit within thirty (30) days from the invoice issue date. In the case of payment by direct debit, the Client undertakes to provide its bank details (RIB) and to complete the direct debit authorization requested by the Service Provider.

 

12.4. Price Revision

The prices for time and materials Services shall be indexed on January 1 of each year, either in accordance with the variation of the Syntec index for IT services for the month of July of each year, or, in any event, subject to a maximum variation capped at three percent (3%).

In the event of a price revision based on the Syntec index, the Parties agree in advance to apply the following formula:

P= Po x Syntec

Syntec Co

Po = price agreed upon at the time of signature of the Agreement;

Syntec = value of the index for the month of July preceding the revision;

Syntec Co = value of the index for the month of July preceding the signature of the Agreement.

 

12.5. Non-Payment or Late Payment

Any late payment shall automatically give rise, without prior formal notice, to the application of late payment penalties at a rate equal to three times the legal interest rate, calculated on a daily basis.

The Service Provider reserves the right to suspend the performance of the Services in the event of non-payment, following formal notice sent by Registered Letter with Acknowledgment of Receipt remaining unsuccessful for more than fifteen (15) days, until full payment of the outstanding invoice. Such suspension shall not be deemed a termination of the Agreement by the Service Provider, nor shall it give rise to any right to compensation for the Client. Under no circumstances may payments be suspended or subject to any set-off without the Service Provider’s prior written consent. Any partial payment shall first be applied to the non-preferred portion of the debt, and then to the amounts with the earliest due date.

In accordance with Article L.441-6 of the French Commercial Code, any late payment shall also automatically entitle DV DIGITAL to apply to the Client a fixed indemnity of forty (40) euros per invoice concerned by the aforementioned late payment.

Furthermore, failure by the Client to pay any invoice by its due date shall entitle DV DIGITAL to demand immediate payment of all other invoices, including those not yet due.

By way of derogation from Article 1253 of the French Civil Code, it is expressly agreed that where several invoices are outstanding and the Client makes a partial payment, DV DIGITAL shall be free to allocate such payment at its discretion.

It is further recalled that the Software license and/or the provision of IT work, such as developments, involve the granting of copyright rights to the Client. In the event of non-payment under the conditions set out above, and if the Service Provider decides to terminate the Agreement, any continued use of the Software and/or the work delivered by the Client shall be deemed an act of infringement.

 

GENERAL PROVISIONS

 

Article 13: Client’s Obligations

13.1. The Client has selected the Software and, where applicable, the Applications, based on the Documentation and information which it acknowledges having received. It is the Client’s responsibility to assess its own needs with the utmost precision and to evaluate their suitability in relation to the Software and/or the Applications.

13.2. It is the Client’s responsibility to ensure that its own structures are capable of accommodating the processing of the selected Software and that it possesses the necessary expertise for its implementation. In particular, the Client must verify that its Technical Environment complies with the Technical Prerequisites.

13.3. The Client undertakes, where deemed necessary by the Service Provider, to grant the latter access to the Client’s installation in order to perform the Services.

Any refusal by the Client to grant the Service Provider access to its installation shall release the Service Provider from any liability and from any commitment towards the Client.

13.4. The Client shall be solely responsible for:

• the use it makes of the Software, as well as the use of the results it may obtain based on the characteristics and specifications specific to each of them, the Client being required at all times to verify, in accordance with the rules applicable in its own profession, the results it obtains;

• implementing any appropriate procedures and measures intended to protect its hardware, software, and passwords, to back up its data (before and after performance of the Services), and to protect itself against any viruses or intrusions;

• the selection and acquisition, whether prior or subsequent, from third parties, of hardware and software, as well as any potential incompatibilities with the items ordered under the Agreement, unless such acquisitions have been expressly and previously validated by the Service Provider. In the absence of such validation, the Service Provider’s liability, whether direct or indirect, shall not be engaged for any malfunctions or disruptions that may occur in the operation of the Client’s installation;

• project management of its IT systems in the event that it appoints multiple service providers;

• compliance with the Technical Prerequisites (present and future) in order to avoid harmful consequences such as slowdowns, blockages, or data alteration;

• any consequences affecting the Software covered by the Agreement resulting from modifications decided and/or carried out by the Client, its installation, or its Environment.

13.5. The Client declares that any software or application used, which may or must interface with the Software, consists of lawful versions, and shall indemnify and hold the Service Provider harmless against any third-party claims in this respect.

13.6. It is also the Client’s responsibility to take all necessary precautions to ensure the security and preservation of the documents, files, recorded data, and information media it uses, and to select and implement the means required to control access to them and to protect them against any unauthorized disclosure or accidental destruction.

 

Article 14: Cooperation

For the proper performance of this Agreement, the Client undertakes to actively, regularly, and in good faith cooperate with DV DIGITAL. Accordingly, the Client shall provide DV DIGITAL with all information necessary for the performance of the Services and shall inform DV DIGITAL, as the Services are being performed, of any difficulties of which it is aware or which it may reasonably foresee based on its knowledge of its field of activity.

The Client acknowledges that DV DIGITAL is not the author of the Software. Consequently, all warranties relating to the Software, including in particular warranties of conformity, non-infringement, latent defects, and peaceful enjoyment, are intended to be borne by the Publisher. Therefore, the Client shall submit any warranty claim of any nature whatsoever directly to the Publisher pursuant to the LSDA. The Client accepts that, in order to benefit from such warranties, it shall be responsible for taking all necessary steps directly with the Publisher, whose contact details shall be provided by DV DIGITAL upon express request. In the event that the Client submits any warranty claim whatsoever to the Service Provider, the Service Provider’s sole obligation in this respect shall be to forward such claim to the Publisher as promptly as possible.

With the exception of this obligation, the Service Provider disclaims all warranties of any kind whatsoever. The Client acknowledges that the performance of the Software depends on its ability to use it properly. In this respect, the Service Provider does not warrant that the Software will meet all of the Client’s needs, nor that its operation will be uninterrupted or error-free.

 

Article 15: Liability

In the performance of all the Services, the Service Provider shall be subject to a best efforts obligation.

The Service Provider shall not be held liable for any damage suffered by the Client in connection with the Agreement where such damage has been caused by the Client’s negligence, error, or fault, by the act of a third party, by force majeure, or by any other cause or event beyond the reasonable control of the Service Provider.

Without prejudice to the foregoing provisions, the liability of each Party shall be limited to direct and foreseeable damages.

Consequently, under no circumstances shall either Party incur liability for indirect or unforeseeable damages, whether tangible or intangible. This includes, in particular, loss of profit, loss of business, business interruption, loss of turnover or profit, loss of customers, loss of opportunity, loss or corruption of files or data, the cost of obtaining substitute products, services, or technology, or any other financial loss arising from or resulting from this Agreement. Any damage suffered by a third party shall be considered indirect damage and shall therefore not give rise to compensation.

In the event that the Service Provider’s liability is established, the total and cumulative compensation, for all causes combined, including principal, costs, and interest, to which the Client may be entitled, shall be limited to the total amounts paid by the Client to the Service Provider for the Services during the twelve (12) months preceding the event or cause giving rise to liability, provided that amounts corresponding to Services validated by the Client shall be deducted, which the Client consequently undertakes not to challenge.

Subject to the application of mandatory legal provisions, no legal action may be brought on the basis of contractual liability or any warranty under the Agreement after the expiry of a period of two (2) years from the occurrence of the event giving rise to such action.

The Parties acknowledge that the price of the Agreement reflects the allocation of risks arising therefrom, as well as the economic balance intended by the Parties, and that the Agreement would not have been concluded without the limitations of liability set out herein.

 

Article 16: Force Majeure

DV DIGITAL shall not under any circumstances be held liable in the event of force majeure as defined in Article 1218 of the French Civil Code and by the case law of the French courts.

Initially, cases of force majeure shall suspend the performance of the Agreement. If the force majeure event continues for a period exceeding three (3) months, the Agreement shall be automatically terminated, unless otherwise agreed by the Parties.

 

Article 17: Termination

Without prejudice to any other rights, DV DIGITAL may immediately terminate the Agreement by operation of law, without thereby incurring any obligation or liability, (i) if the Client fails to pay the maintenance invoices due after receiving formal notice from DV DIGITAL; (ii) if the Client breaches any obligation under the Agreement and fails to remedy such breach within thirty (30) days from written notice given by DV DIGITAL for this purpose; (iii) if the Client undergoes a reorganization, merger, change of control, or assignment; (iv) if the Publisher informs DV DIGITAL of the discontinuation of maintenance and/or commercialization of the Software; (v) to the extent permitted by law, if the Client is subject to judicial reorganization or liquidation proceedings; and (vi) if DV DIGITAL faces unforeseen difficulties resulting in an increase in the cost of the Services disproportionate to the price set out in the Purchase Order. Furthermore, insofar as the Client is no longer authorized to use the Software, for any reason whatsoever, this Agreement shall be automatically terminated by operation of law.

 

Article 18: Confidentiality

The Agreement, as well as all information exchanged between the Parties or of which they may become aware in the course of performing the Agreement, regardless of its medium and including the Software and Applications, shall be considered confidential (hereinafter the “Confidential Information”). Each Party undertakes to protect the Confidential Information and not to disclose it to any third party without the prior written consent of the other Party.

Each Party shall be released from its confidentiality obligations with respect to any information that:
(i) was in that Party’s possession prior to its disclosure by the other Party, provided that such possession did not directly or indirectly result from the unauthorized disclosure of such information by a third party;
(ii) was in the public domain at the date of acceptance of the Agreement or enters the public domain after that date without any breach by that Party of its confidentiality obligations under the Agreement;
(iii) was independently developed by that Party; or
(iv) must be disclosed pursuant to a legal requirement or by order of a competent judicial or administrative authority, or where disclosure is necessary for the purposes of a legal action and/or judicial proceedings.

The Parties undertake to comply with the obligations arising from this Article for the entire duration of the Agreement and for a period of five (5) years following its termination.

 

Article 19: Assignment

19.1. The Agreement may under no circumstances be assigned, whether in whole or in part, whether for consideration or free of charge, by the Client without the prior, express, and written authorization of DV DIGITAL.

19.2. DV DIGITAL reserves the right to assign the Agreement without any formalities. In the event of assignment, the assignee entity shall be substituted for DV DIGITAL as of the effective date of the assignment. The Client expressly acknowledges that the assignee entity shall become its contractual counterparty.

 

Article 20: Non-Solicitation of Personnel

The Client undertakes, during the term of the Agreement and for twelve (12) months following its termination, not to hire or engage, directly or indirectly, any member of the Service Provider’s personnel, without the Service Provider’s prior written authorization.

In the event of breach, the Client shall immediately pay the Service Provider a lump-sum indemnity equal to the salary of the solicited employee for the twelve (12) months preceding their hiring, including both employee and employer social contributions. The Service Provider may also claim compensation for any actual loss suffered insofar as such loss exceeds the amount corresponding to salary-related charges alone.

 

Article 21: Anti-Corruption

DV DIGITAL is an ethical company that attaches particular importance to the fight against fraud and corruption and expects any person or company in a relationship with DV DIGITAL to adhere to the same principles and to strictly comply with applicable regulations.

Accordingly, any contracting party of DV DIGITAL (hereinafter the “Contracting Party”) irrevocably undertakes to comply with the provisions set out in this Article.

Any breach by the Contracting Party of the provisions of this Article shall be considered a serious breach entitling DV DIGITAL, at its discretion, to terminate this Agreement without notice or compensation, without prejudice to any damages that DV DIGITAL may claim as a result of such breach.

The Contracting Party warrants that any person, whether natural or legal, acting on its behalf in connection with this Agreement:

• a) Shall not, by act or omission, do anything that could engage the liability of DV DIGITAL for non-compliance with applicable anti-corruption laws and regulations;
• b) Shall implement and maintain its own ethics and anti-corruption policies and procedures;
• c) Shall promptly inform DV DIGITAL of any event of which it becomes aware that could result in the granting of any undue advantage, financial or otherwise, in connection with this Agreement;
• d) Shall provide any assistance necessary to enable DV DIGITAL to respond to a request from a duly authorized authority relating to anti-corruption matters.

The Contracting Party shall indemnify DV DIGITAL against any consequences, including financial consequences, resulting from its breach of the obligations set out in this Article.

The Contracting Party hereby authorizes DV DIGITAL to take any reasonable measures necessary to verify the Contracting Party’s strict compliance with the obligations set out in this Article.

Article 22: Employment and Social Regulations

DV DIGITAL undertakes to comply with all applicable legal and regulatory provisions incumbent upon it in matters of labor law and social legislation, and in particular to provide the Client, upon request, with any certificates or attestations that the Client is legally entitled to require.

If DV DIGITAL’s personnel are required, for the purposes of performing the Agreement, to work on the Client’s premises, DV DIGITAL undertakes to comply with the health and safety rules in force at the Client’s premises, as communicated by the Client to DV DIGITAL. In this respect, DV DIGITAL undertakes to:

• give all necessary instructions to its personnel to ensure that they comply with the health and safety regulations in force at the Client’s premises and communicated by the Client to DV DIGITAL;
• take all necessary measures, under its sole responsibility, to ensure the medical supervision of its personnel.

In any event, DV DIGITAL’s personnel shall remain employees of DV DIGITAL. They shall perform their duties under the direction, control, and responsibility of DV DIGITAL, which shall throughout the performance of the Agreement be responsible for their administrative, accounting, and social management.

MISCELLANEOUS PROVISIONS

23.1. DV DIGITAL processes Personal Data in accordance with the provisions set out in the Appendix “Personal Data Processing and Protection Policy.” The Client shall be responsible for carrying out any formalities, declarations, or authorization requests required under applicable laws and regulations with respect to the processing it performs and the Data processed.

23.2. The Client agrees that the Service Provider may freely and without prior formalities subcontract all or part of its obligations under this Agreement, under its own responsibility.

23.3. The Client agrees that the Service Provider may, after informing the Client, make any appropriate modifications necessary to correct an error, provided that such modifications do not substantially alter the proper performance of the Agreement. Should this be the case, the Parties undertake to consult each other in order to find a mutually acceptable solution.

23.4. The Client authorizes the Service Provider to cite its name and/or reproduce its logo as a reference or for its own promotional purposes in the Service Provider’s various marketing materials, in any form or medium whatsoever, in the course of its commercial activities and for third parties, without granting the right to use any other distinctive signs belonging to the Client other than those expressly referred to in this clause.

23.5. The failure of either Party to invoke any of the obligations set out in the Agreement shall not be construed as a waiver of the obligation in question at a later date.

23.6. If one or more provisions of the Agreement are held to be invalid or declared as such pursuant to a law or following a final decision by a competent court, the remaining provisions shall remain in full force and effect.

23.7. DV DIGITAL reserves the right to invoice the Client for time spent investigating the causes of incidents where the incident encountered by the Client does not originate from a service or supply provided by DV DIGITAL under this Agreement. The price for such time shall be the daily rate indicated in the financial terms of the Proposal in the case of a time and materials offer, or €1,200 excluding VAT per day in the case of a fixed-price offer.

23.8. The Client is informed that, in the event of an audit of its computerized accounting, the Service Provider shall make the IT documentation available to the tax authorities and, upon the Client’s express request and subject to remuneration to be agreed upon by mutual consent, shall assist the Client in responding to any request for information from the tax authorities concerning such documentation.

 

Article 24: Governing Law and Jurisdiction

THESE TERMS AND CONDITIONS SHALL BE GOVERNED BY FRENCH LAW. IN THE EVENT OF A DISPUTE, EXPRESS JURISDICTION IS GRANTED TO THE COMMERCIAL COURT OF LYON, NOTWITHSTANDING MULTIPLE DEFENDANTS OR THIRD-PARTY PROCEEDINGS, INCLUDING FOR SUMMARY PROCEEDINGS OR INTERIM OR PROTECTIVE MEASURES, WHETHER BY WAY OF SUMMARY APPLICATION OR PETITION.

PERSONAL DATA PROCESSING AND PROTECTION POLICY

Article 25 : Definitions

Whenever they appear with an initial capital letter, whether in the singular or plural, in this Article, the following terms shall have the meanings set out below:

“Controller” means the natural or legal person, public authority, agency, or other body which, alone or jointly with others, determines the purposes and means of the Processing. Where the purposes and means of such Processing are determined by European Union law or by the law of a Member State, the Controller may be designated, or the specific criteria applicable to its designation may be provided for, by European Union law or by the law of a Member State.

“Processor” means the natural or legal person, public authority, agency, or other body which Processes Personal Data on behalf of the Controller.

“Applicable Regulations” means all applicable European Union directives and regulations in force governing the use and/or Processing of Personal Data, including in particular the GDPR and all related national laws.

“EEA” means the European Economic Area.

“GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data, repealing Directive 95/46/EC (General Data Protection Regulation).

“Personal Data” means any information relating to an identified or identifiable natural person (the “Data Subject”). An “identifiable natural person” is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, identification number, location data, online identifier, or to one or more specific factors relating to their physical, physiological, genetic, mental, economic, cultural, or social identity.

“Client Personal Data” means the data, information, or documents provided, entered, or transmitted by the Client, or on its behalf, within the Services, and which may include data relating to its customers and/or its employees.

“Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction, and the terms “process,” “processed,” and “processing” shall be construed accordingly.

“Supervisory Authority” means an independent public authority established by a Member State which is responsible for monitoring the Processing of Personal Data.

 

Article 26: Personal Data

26.1. Terms of Processing of Personal Data

The Parties acknowledge and agree that the Client acts as the Controller of the Personal Data collected and processed in connection with the performance of the General Terms and Conditions accepted by the Client, and that it assumes sole responsibility for ensuring that such Processing complies with the Applicable Regulations.

In the performance of the said General Terms and Conditions, DV DIGITAL, in its capacity as Processor, undertakes to process Personal Data on behalf of the Controller under the conditions defined below:

The Client declares:

• That it complies with the Applicable Regulations and ensures that its instructions to DV DIGITAL regarding the Processing of Personal Data comply therewith;
• That it is authorized, in accordance with the Applicable Regulations, to communicate to DV DIGITAL the Personal Data of the Data Subjects concerned by such Processing;
• That it shall obtain, where applicable, the consent of the Data Subjects concerned by such Processing, in compliance with the Applicable Regulations, in order to:

Communicate the said Client Personal Data to DV DIGITAL;
Allow DV DIGITAL to process the Client Personal Data for the purposes of performing the said General Terms and Conditions; and
Enable DV DIGITAL to communicate such Personal Data: (a) to its service provider partners and affiliated companies; (b) to any public authority, where applicable; (c) to any third party in the context of compliance with a legal or regulatory obligation binding on DV DIGITAL; and (d) to any other person legally entitled to request disclosure of the information, including where the recipients of the Personal Data are located outside the European Economic Area.

DV DIGITAL represents and warrants that, when acting as Processor, it shall process the Client’s Personal Data only:

• To the extent necessary for the performance of the General Terms and Conditions; and/or
• In accordance with the Client’s written instructions.

26.2. Analyse des Données à caractère personnel

26.2. Analysis of Personal Data

The Client is informed and agrees that DV DIGITAL may collect, retain, and use the Client’s Personal Data generated and stored during the use of the Services for the purposes of:

• Conducting research and development in order to improve DV DIGITAL’s and/or its Affiliates’ Services, products, and applications;

• Developing and providing existing and new services and functionalities (including statistical analyses, benchmarking analyses, or forecasting services); and

• Offering the Client location-based services (e.g., location-related content), for which DV DIGITAL collects geolocation data in order to provide the Client with a relevant experience.

It is understood that DV DIGITAL shall ensure that such collected information is processed in a pseudonymized manner and is displayed only in aggregated form, and not in connection with the Client or any other Data Subject. Such Processing shall be carried out by DV DIGITAL in its capacity as Controller and on the basis of its legitimate commercial interest. The Client may at any time request that DV DIGITAL cease using the Client’s Personal Data as described in this paragraph by contacting DV DIGITAL at the following address: contact@DVDIGITAL.com

The Client is informed and agrees that DV DIGITAL may record and use its Personal Data in order to send advertising or marketing messages (including electronic communications) that may be of interest to the Client, based on its use of DV DIGITAL’s Services and Products. The Client’s Personal Data shall be processed by DV DIGITAL in its capacity as Controller, on the basis of its legitimate commercial interest. The Client may at any time request that DV DIGITAL cease using its Personal Data as described in this paragraph by clicking the “unsubscribe” button in the relevant message or by contacting DV DIGITAL at the following address: contact@DVDIGITAL.com

 

Article 27: Obligations of DV DIGITAL

DV DIGITAL undertakes to:

• Assist the Client, where possible, through appropriate technical and organizational measures, in fulfilling its obligation to respond to Data Subjects’ requests to exercise their rights;
• Assist the Client, where possible and on the basis of the information available to DV DIGITAL, in enabling the Client to comply with its obligations relating to:

Notifications to Supervisory Authorities;
Prior consultations with such Authorities;
Communications to Data Subjects of any Personal Data breach; and
Data protection impact assessments.

DV DIGITAL further undertakes to:

• Take all reasonable measures to ensure that any employee having access to Personal Data complies with its obligations under this Agreement;
• Ensure that access to Personal Data is strictly limited to employees who need access for the sole purpose of performing the General Terms and Conditions;
• Ensure that employees authorized to process Personal Data have committed themselves to confidentiality or are subject to an appropriate statutory obligation of confidentiality.

Where required by Applicable Regulations, DV DIGITAL shall appoint a Data Protection Officer and make available information relating to such appointment.

DV DIGITAL shall implement and maintain appropriate technical and organizational security measures, commensurate with the risks presented by the Personal Data Processing activities, in order to protect Personal Data against unauthorized or unlawful Processing and against accidental loss, alteration, or disclosure to third parties.

Subject to any existing confidentiality obligations towards third parties, DV DIGITAL undertakes to make available to the Client all information reasonably necessary to demonstrate compliance with its own obligations hereunder. In this respect, DV DIGITAL may provide the Client with any security audit report prepared by itself or by an independent auditor. Failing this, or at the Client’s request, DV DIGITAL undertakes to allow independent audits, including inspections by a qualified third-party auditor appointed by the Client and approved by DV DIGITAL, at the Client’s expense.

 

Article 28: Personal Data Breach

DV DIGITAL shall notify the Client if it becomes aware of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure to a third party of Personal Data, or unauthorized access to such data, resulting from an act or omission on the part of DV DIGITAL or its sub-processors.

 

Article 29: Transfer of Data Outside the EEA

The Client expressly agrees that DV DIGITAL may transfer the Client’s Personal Data within DV DIGITAL or its Group in accordance with the terms and conditions set out in DV DIGITAL’s framework agreements relating to data transfer and processing, which incorporate the European Commission’s Standard Contractual Clauses.

The Client acknowledges and agrees that the performance of the General Terms and Conditions it has accepted may involve the Processing of Personal Data by sub-processors located in countries outside the EEA. However, DV DIGITAL shall not transfer Personal Data outside the EEA to a sub-processor without the Client’s prior written consent where such transfer is not subject to: (a) an adequacy decision (pursuant to Article 45 of the GDPR); or (b) appropriate safeguards (pursuant to Article 46 of the GDPR); or (c) binding corporate rules (pursuant to Article 47 of the GDPR).

 

Article 30: Retention of Personal Data

At the Client’s request, DV DIGITAL shall delete or return to the Client all Personal Data relating to it and shall destroy all existing copies of such Data, unless DV DIGITAL is legally required to retain them or has another legitimate business reason for doing so.

 

Article 31: Use of Sub-Processors

DV DIGITAL may not engage a sub-processor to carry out Processing on behalf of the Client without the Client’s prior written authorization. Where the use of a sub-processor is approved by the Client, DV DIGITAL shall ensure that the obligations set out herein are imposed on such sub-processor.

General Terms and Conditions of License and Associated Services

 

Restricted Publication

The information contained in this document includes confidential information that may be disclosed only to the Client’s relevant personnel; it may not be published or disclosed to third parties, in whole or in part. This restriction shall in no way limit the Client’s rights to use such information if the Client obtains it from a source not subject to any restriction.

This information, which may be modified if necessary, has been carefully verified and is considered entirely accurate. However, no liability shall be accepted in the event of error. DV DIGITAL further reserves the right to modify any of the products or services described in this document in order to improve their reliability, operation, or design. The Client remains solely responsible for the application or use of any of the products described in this document. DV DIGITAL does not hereby grant any rights relating to its patents or those of third parties.

These General Terms and Conditions (hereinafter the “General Terms”) apply between DV DIGITAL, a simplified joint-stock company (société par actions simplifiée – SAS) with a share capital of €96,453.39, registered with the Lyon Trade and Companies Register under number 424 106 763, having its registered office at 42 route du Pont de Chêne – 69340 FRANCHEVILLE (hereinafter “DV DIGITAL” or the “Service Provider”), and the client (hereinafter the “Client”) who has signed a Purchase Order incorporating these General Terms by reference.

 

PREAMBLE

DV DIGITAL markets software packages designed and developed by other publishers (hereinafter referred to as “Third-Party Software Packages” or “Software Packages”). The Software Packages offered by DV DIGITAL are standard products designed to meet the needs of the greatest number of Clients. Consequently, the drafting of a specifications document or a statement of requirements is the sole responsibility of the Client and remains under its full responsibility.

It is the Client’s responsibility to assess its own needs with the utmost precision and to ensure the suitability of the Software Packages and services it independently selects to meet its needs, in light of the information provided by the Supplier as well as the presentations and demonstrations carried out by DV DIGITAL.

Failing to request additional information from DV DIGITAL and/or to attend an additional demonstration of the Software Packages prior to signing these Terms, the Client acknowledges having been sufficiently informed. DV DIGITAL may not be held liable for any lack of suitability of a Software Package feature for a need not expressly defined and detailed in the Client’s specifications document; for unspecified needs, the Client undertakes to adapt to the standard functionalities.

The specifications document or any equivalent document shall only be taken into account after the Supplier’s express validation prior to signature and, where applicable, attached hereto as an appendix for information purposes only. Failing this, the document shall be deemed non-existent.

 

Article 1: Scope of Application of the General Terms

DV DIGITAL shall under no circumstances recognize the Client’s general terms and conditions of sale and/or purchase, whether wholly or partially different from these Terms, unless expressly agreed otherwise in writing by the Supplier. Any contrary clause shall be deemed unwritten.

Unless otherwise agreed otherwise in writing by the Supplier, these General Terms of Sale shall remain applicable to future transactions between the Parties, notwithstanding any reservation or contrary clause from the Client.

DV DIGITAL is authorized to amend the content of these General Terms of Sale, subject to notifying the Client of such modification and its effective date, and inviting the Client to review the updated version of the General Terms of Sale. The Client’s agreement shall be deemed acquired in the absence of written objection within thirty (30) days following such notification, which shall result in the immediate and automatic entry into force of the amended General Terms upon expiry of such period, or as from the effective date indicated by DV DIGITAL in the notification referred to above.

 

Article 2: Definitions

In the General Terms, capitalized terms and expressions, whether used in the singular or plural, shall have the meanings set out below:

“Affiliate”: means any entity controlled by the Client (“control” having the meaning given to it in Article L.233-3 of the French Commercial Code).

“Anomaly”: means a malfunction or incident preventing normal operation of the Software Packages and/or Applications. Anomalies are classified into three (3) categories, depending on their level of severity:

• Blocking: Reproducible anomalies (including recurring anomalies) which, individually or cumulatively, render the Software Package inoperative, or block the use of an essential function of the Software Package, or cause an erroneous result in the calculation methods of a function, and for which no technical or organizational workaround exists.

• Major: Reproducible anomalies (including recurring anomalies) which, individually or cumulatively, render the Software Package inoperative, or block the use of an essential function of the Software Package, or cause an erroneous result in the calculation methods of a function, but for which a technical or organizational workaround exists.

• Non-Blocking: Reproducible anomalies (including recurring anomalies) for which a technical or organizational workaround exists.

“Application”: means standard software programs designed and developed by DV DIGITAL and/or its subsidiaries, for which the Client may acquire a right of use under the conditions and thresholds set out in the Purchase Order.

“Purchase Order”: means the document signed by the Client describing the ordered items, the term of the Agreement and the financial terms of the Services.

“Client”: means any individual or legal entity using the functionalities of the Software Packages for its internal management needs.

“General Terms”: means this document. The General Terms consist of the General Terms and Conditions of License and Associated Services and, where the Client has chosen to purchase services relating to Third-Party Software Packages and Applications, the General Terms and Conditions for Services.

“Specific Conditions”: means the document describing the ordered items, their price and the payment terms. They are also referred to as the “Purchase Order”.

“Agreement”: the Agreement consists of the Specific Conditions supplementing these General Terms and their appendices. The only contractual documents are the Agreement and its appendices, to the exclusion of any prior proposal and any correspondence exchanged between the Parties prior to signature of the Agreement. These General Terms may be sent to the Client provided that the request is sent to the Supplier by registered letter with acknowledgement of receipt; they are also available for consultation and download on the Supplier’s website and comply with Article L.441-6 of the French Commercial Code, which provides that a service provider must communicate its terms by any means consistent with professional practice. The Supplier recommends that the Client review the General Terms via this permanently available access method. Any modification or alteration made to the pre-printed part of this document must be confirmed in writing by the Supplier; failing that, such modification or alteration shall be deemed null and void. Consequently, placing an order implies the Client’s full and unconditional acceptance of these General Terms, to the exclusion of any other document such as brochures or catalogues issued by the Supplier, which have no value (sale, maintenance, specific development, distribution, etc.). Any details and additions provided by the Supplier regarding the subject matter of the Agreement and brought to the Client’s attention by any means, unless expressly contradicted by the Client prior to signature, shall be deemed accepted by the Client and shall form an integral part hereof.

“License Activation Date”: unless otherwise specified, means the date on which the Publisher generates the license installation file.

“Renewal Date”: means the anniversary date of the Agreement on which it will be renewed, for the period defined between the Parties.

“Request”: means any reproducible operating incident encountered by the Client when using the Software Package, as well as any Anomaly, that the Client notifies to DV DIGITAL. Requests give rise to the opening of a ticket with DV DIGITAL’s Support teams.

“Documentation”: means the description of the Software Package functionalities and user instructions. It is provided electronically in French or English and may take the form of online help for use of the Software Packages.

“Data”: means all data, including Personal Data, contained within the Client’s Technical Environment and managed and/or generated through the use of the Software Packages and Applications.

“Personal Data”: means personal data processed by the Client in the performance of the Agreement, within the meaning of Directive 95/46/EC and French Law No. 78-17 of 6 January 1978 as amended (Data Protection Act) and, as from 25 May 2018, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (GDPR), together referred to as the “Applicable Regulations”.

“Publisher”: means the holder of the copyright in the Software Packages for which a license has been granted to the Client.

“Technical Environment”: means the Client’s information system existing prior to the installation of the Third-Party Software Packages and/or Applications. In order to ensure the operation of the Third-Party Software Packages and Applications in accordance with their Documentation, the Client’s Technical Environment must comply with the Technical Prerequisites.

“Licenses”: means the rights of use granted to the Client, based on the number of Users and the financial terms set out in the Specific Conditions, as from the License Activation Date, in compliance with the rights granted under Article 5 hereof and for the term of the Agreement. Licenses may be acquired under a Subscription or Rental model.

“License Software Designation Agreement” (or “LSDA”): means the end-user license agreement contained in the Third-Party Software Packages, which the Client must review and accept electronically upon installation of the Third-Party Software Packages in order to use them.

“Rental”: means the licensing model under which the usage fee is calculated as a rent paid by the Client in proportion to the number of Users set out in the Specific Conditions. Rental will be renewed under the conditions of Article 4 on the Renewal Date and will include the Services relating to the Software Packages, under the conditions set out in the Specific Conditions, for the term of the Agreement.

“Maintenance”: means the delivery of Software Package updates and the related Service for the term of the contract associated with the license owned by the Client.

“Technical Prerequisites”: means the list of hardware and recommended software environment specified by the Supplier and suitable for the use of the offered Software Packages.

“Services”: means the support services provided by DV DIGITAL under Article 6 hereof. The Client automatically benefits from the Services under a Subscription or Rental model for the duration of the Usage Fee.

“Subscription”: means the order of Licenses and associated Support, in consideration of a Usage Fee, for a number of Users and for a defined term at the time of order, as recalled in the Specific Conditions.

“User”: means individuals in a relationship of subordination with the Client or its Affiliates and authorized to use the Third-Party Software Packages and/or Applications under these General Terms and within the thresholds/quantities set out in the Specific Conditions.

“XaaS”: means “Xcelerator as a Service”; the order of Licenses and associated Support in consideration of a Usage Fee, for a number of Users and for a defined term at the time of order, as recalled in the Specific Conditions.

 

Article 3 : Contractual Document

The Agreement is formed, between DV DIGITAL and the Client, by the following contractual documents presented in descending order of legal precedence:

• the Specific Conditions,

• the present General Terms of License and Services,

• where applicable and in the event of recourse to Services, the General Terms of Services,

• any Appendices.

In the event of contradiction between one or more provisions contained in the documents mentioned above, the higher-ranking document shall prevail. Any specific handwritten annotation added by the Client shall have no value unless expressly accepted by DV DIGITAL.

The Client further acknowledges that the present General Terms constitute an independent contractual document which in no way depends on any other agreement concluded with the Client, even if the latter concerns the same Software Packages and/or Applications. Furthermore, termination of the Services for any reason whatsoever shall have no effect on the present General Terms, which shall continue to apply to the Licenses acquired prior to such termination. Consequently, any sum remaining due by the Client under the present General Terms shall be paid to DV DIGITAL, it being understood that the latter shall not refund any sum already paid under the present terms. The Client further acknowledges that the provisions of Article 1186 of the French Civil Code relating to lapse may not be invoked by it in order to release itself from its contractual obligations towards DV DIGITAL.

Article 4 : Entry into force – Duration

4.1. Duration of the License

4.1.1. Maintenance, Subscription & Xaas. The right to use the Licenses shall enter into force on the date of signature of the Agreement or, failing that, no later than the License Activation Date (or communication to the Client of the activation codes) for the duration of use mentioned in the Specific Conditions. Unless otherwise specified, it shall remain in force for a minimum duration of three (3) years corresponding to the Client’s order. Upon expiry, the right to use the Licenses must be renewed by the Client by contacting the DV DIGITAL teams three (3) months prior to its expiry date. The Client who decides not to renew the Agreement must notify DV DIGITAL of this decision by registered letter with acknowledgement of receipt three (3) months before the end of the current period so that DV DIGITAL may inform its Publisher Partners. Upon expiry of the Agreement, the Client shall no longer have any right of use over the Software Packages under subscription, Xaas and/or over the related Applications/Modules and shall no longer benefit from the Services.

4.1.2. Rental. The right to use the Licenses shall enter into force on the date of signature of the Agreement or, failing that, no later than the License Activation Date (or communication to the Client of the activation codes). Unless otherwise specified in the Specific Conditions, it shall remain in force for an initial duration of one (1) year. Upon expiry, the right to use the Licenses must be renewed by the Client by contacting the DV DIGITAL teams three (3) months prior to its expiry date. The Client who decides not to renew the Agreement must notify DV DIGITAL of this decision by registered letter with acknowledgement of receipt three (3) months before the end of the current period so that DV DIGITAL may inform its Publisher Partners. Upon expiry of the Agreement, the Client shall no longer have any right of use over the Software Packages under subscription, Xaas and/or over the related Applications/Modules and shall no longer benefit from the Services.

4.2. Duration of the Services

4.2.1. The Client who has acquired the Licenses relating to the Software Packages and/or Applications from DV DIGITAL shall benefit from the Services under the conditions of Article 6 for a minimum commitment period of three (3) years. Upon expiry of this period, the Services must be renewed with DV DIGITAL by the Client, unless notification is sent by the Client to DV DIGITAL by registered letter with acknowledgement of receipt three (3) months before each expiry date.

4.2.2. Notwithstanding the foregoing, DV DIGITAL may, during the entire duration of the Agreement, including during the initial term, subject to one (1) year’s notice, inform the Client by registered letter with acknowledgement of receipt of the discontinuation of the Services for a Software Package, thereby resulting in the end of the provision of the Service for the Software Package and/or Applications concerned.

 

INTELLECTUAL PROPERTY

Article 5 : Rights granted

The use of the Software Packages shall mean their permanent or temporary reproduction in order to enable their operation in accordance with the provisions of the present General Terms and the Documentation associated with the Software Packages, insofar as the loading, display, execution, transmission or storage of the Software Packages requires reproduction.

5.1 : Scope of the rights granted relating to the Third-Party Software Packages

5.1.1. The Client has a personal, non-assignable and non-transferable right to use the Software Package and the Updates possibly provided by the Publisher, exclusively in object code form, which is granted to it for its internal operating needs and those of its Affiliates within the limits of the rights acquired and under the conditions defined by the present General Terms and the terms of the “LSDA” of the relevant Publisher, for the duration of the Usage Fee and in accordance with the Specific Conditions.

5.1.2. Unless otherwise provided in specific conditions accepted by DV DIGITAL, each license of rights of use of the Software Packages is granted within the limits of the rights acquired, for the duration of the Usage Fee associated with the duration of the Agreement, for one or more named User(s).

By way of derogation from the foregoing, the right to use the Software Package may be extended to one or more other hardware equipment or Sites strictly listed with the prior express written consent of DV DIGITAL and the relevant Publisher, in consideration of a Usage Fee, the amount of which must be contractually agreed for all Sites, whether located in France or abroad.

DV DIGITAL reserves the right not to authorize or to withdraw at any time and without notice its authorization for any Site located in a country subject to US or French export control laws or for any other reason duly justified by DV DIGITAL.

5.1.3. The Agreement may in no case be assigned or transferred, even free of charge, to Affiliates, even for those benefiting from rights of use under the Agreement. Affiliates may only use the Software Package in compliance with the terms and conditions hereof. In any event, the Software Package may only be subject to a single installation on the Site(s) referred to in the Specific Conditions.

The Client undertakes to ensure compliance with the terms of the Agreement by its Affiliates and shall bring its content to their attention.

5.1.4. The Software Package must be used:

• in accordance with the provisions of the Agreement and the prescriptions contained in the Documentation;

• solely for the personal and internal needs of the Client or its Affiliates, by its employees, to the exclusion of any third party outside its Group;

• by authorized and qualified personnel who have previously undergone appropriate training for the use of the Software Package in order to obtain the desired results;

• in accordance with the Technical Prerequisites, and for the Site(s) mentioned in the Agreement;

• within the limit of the number of accesses acquired or the number of employees or the number of companies (where such limitations apply to the Software Packages).

5.1.5. In the context of outsourced management of the Licenses, after written consent of DV DIGITAL, the third party performing the services, its possible hosting subcontractor and the Client shall all be subject to compliance with the present General Terms and the Client shall guarantee such compliance. No novation shall occur. Furthermore, all invoices relating to the Software Package shall remain due by the Client directly and shall be paid by it to DV DIGITAL.

5.1.6. Any use of the Software Package not in compliance with its intended purpose as defined above shall constitute an infringement of the exploitation rights of the Software Package and therefore an act of counterfeiting in accordance with the provisions of Article L.335-3 of the French Intellectual Property Code.

5.1.7. DV DIGITAL warrants to the Client that it is either the holder of the economic rights in the Software Packages, the Applications and their Documentation, or that it holds authorization from the author of the Software Packages and that it may consequently grant to the Client the right of use provided herein.

In the event of a claim alleging that the Software Packages infringe an intellectual property right in France, DV DIGITAL may, at its choice and at its expense, either replace or modify all or part of the Software Packages, or obtain for the Client a license of use, provided that the Client has complied with the following conditions:

• that the Client has accepted and performed all of its obligations under the present document;

• that the Client has notified DV DIGITAL, within eight (8) days, in writing, of the infringement action or of the declaration preceding such allegation;

• that DV DIGITAL is able to ensure the defense of its own interests and those of the Client, and for this purpose, that the Client cooperates loyally with DV DIGITAL by providing all elements, information and assistance necessary to conduct such defense.

If none of these measures is reasonably feasible, DV DIGITAL may unilaterally decide to terminate the license of the infringing Software Packages and refund to the Client the royalties paid for said licenses.

DV DIGITAL shall assume no liability where the allegations relate to:

• the use of a version of the Software Packages other than the current and unmodified version, if the conviction could have been avoided by using the current and unmodified version;

• the combination, implementation or use of the Software Packages with programs or data not supplied by DV DIGITAL.

5.2 : Limits to the rights granted

The Client acknowledges that the Software Packages constitute intellectual works which it and its personnel undertake to treat as such by refraining from:

• any copy or reproduction in whole or in part of said Software Packages or their Documentation by any means and in any form, except for the backup copy authorized in accordance with the provisions of the French Intellectual Property Code (Article L.122-6-1), and except for a backup copy in accordance with the provisions of Article L.122-5 of the French Intellectual Property Code;

• any translation, adaptation, arrangement or other modification of the Software Packages, except for parameterization or specific developments carried out by the Client (subject to the functionalities integrated into the Software Packages allowing such parameterization or developments);

• any intervention on the programs composing the Software Packages, whatever its nature, including for the purpose of correcting errors that may affect said Software Packages, insofar as the right to correct such errors is reserved exclusively for the Publisher of the Software Packages;

• any reproduction of the Software Package code or translation of the form of such code in order to obtain the information necessary for the interoperability of said Software Packages with other independently created software packages, the information necessary for interoperability being accessible to the Client, upon request addressed to DV DIGITAL, under the conditions defined by law;

• any making available of the Software Packages, directly or indirectly, for the benefit of a third party, whether free of charge or for consideration, in particular by rental, assignment, loan, shared use, facilities management or ASP.

5.3 : Scope of the rights granted relating to Applications

The provisions of Articles 5.1 and 5.2 of the present General Terms shall apply to the rights of use of the Applications, which the Client expressly acknowledges and accepts.

5.4 : Technical protection measures

5.4.1. Information. The Client is informed and expressly accepts that, in accordance with the applicable legal provisions, DV DIGITAL Software Packages include technical devices necessary for connected support and assistance services, and which notably, during an Internet connection and for the Software Packages concerned, allow the Client via a web-service, either automatically or, where applicable, at the initiative of DV DIGITAL, to send to DV DIGITAL information relating to the Client’s identification (corporate name, address, telephone number, company registration number, IP address), identification of its Software Package (Client code, product code and serial number, License), and the context of use (number of connected users, type of applications used). The information obtained by DV DIGITAL through these technical devices may also be used by DV DIGITAL in the context of anti-counterfeiting measures, in order to detect and prevent any unlawful or non-compliant use of the Software Packages concerned.

Where the Software Package is equipped with such a device requiring activation by the Client, the latter undertakes to activate this function upon simple request from DV DIGITAL and to provide DV DIGITAL with the file containing the information described above. Any circumvention or attempted circumvention of these technical devices is prohibited and shall be sanctioned in accordance with the legal provisions in force.

5.4.2. Audit. In addition to the implementation by DV DIGITAL of the Technical Protection Measures referred to in Article 5.4.1, the Client shall provide, at the request of DV DIGITAL, a sworn statement certifying the compliant use of the Software Package under the terms of the present Agreement. In the event that the Client refuses to activate these devices or to provide such a statement, DV DIGITAL or the Reseller may conduct an on-site Audit.

In the event of use exceeding the acquired rights by less than 10%, an additional Usage Fee shall be invoiced to the Client. In the event of use equal to or greater than 10% of the acquired rights, the additional Usage Fee invoiced shall be increased by 50% as well as the Audit costs incurred by DV DIGITAL or the Publisher. Furthermore, in the event that the Client uses a function or option for which it has not acquired rights, DV DIGITAL shall invoice the additional Usage Fee in accordance with the applicable price list. In the event of non-payment of the invoice on its due date, DV DIGITAL reserves the right to terminate the present Agreement, without delay after having notified the Client by registered letter with acknowledgement of receipt, without prejudice to DV DIGITAL taking all necessary steps to recover its claims. The Client’s information collected during the Audit operations shall be considered confidential information and may only be used for the purposes of the Audit and any necessary regularization.

Notwithstanding the foregoing, the Client is informed that the Publisher may at any time prohibit DV DIGITAL from selling to the Client the additional Licenses necessary to regularize the situation. In such case, DV DIGITAL may not oppose this in order to allow the Publisher the freedom to undertake any action it deems appropriate against the Client, which the latter acknowledges and accepts without reservation.

 

PROVISIONS RELATING TO SUPPORT AND MAINTENANCE

Warning. Subject to the provisions of this Article, the Services may not be mobilized by the Client in the following cases:

• handling or use of the Software Package not in compliance with the Documentation;

• handling or use of the Software Package by a third party and/or by persons who have not received the necessary training for its use;

• failure by the Client to install an Update, it being specified that DV DIGITAL provides maintenance of the Software Package within the limit of the previous Major Version marketed by the Publisher and within a maximum period of one (1) year following the official release of the Major Version succeeding the Version in use by the Client;

• malfunction of the Software Package resulting from problems caused by software and/or hardware not supplied by DV DIGITAL;

• modification of the Software Package by the Client;

• failure by the Client to comply with its obligations under the Agreement, and in particular handling or use of the Software Package for maintenance purposes by any person not previously authorized to do so by DV DIGITAL;

• failure of the Client’s hardware and/or non-compliance with the Technical Prerequisites;

• non-payment of invoices relating to the Service.

 

Article 6 : Description of the Services

6.1. Technical support. The Support includes:

• technical assistance by telephone or email in order to respond, insofar as possible, to difficulties encountered by the Client concerning the operation of the standard functionalities of the Software Package;

• assistance by email or by call-back via the DV DIGITAL Technical Support address (assistance@DV Digital.com) and/or the telephone support center number (0806079970* cost of a local call or 0251729977) during Business Days from 9:00 a.m. to 12:00 p.m. and from 1:30 p.m. to 5:30 p.m. Monday to Thursday and from 1:30 p.m. to 5:00 p.m. on Friday excluding public holidays, for any information and advice requested by the Client regarding the use of the Software Package for improved user comfort; Outside these time slots and in the event of temporary unavailability of the Supplier’s advisors, the Client’s requests may be sent by email;

• the recording and analysis of Anomalies by DV DIGITAL, which shall be duly reported and documented by the Client in the context of its Support request.

It is specified that technical support does not constitute remote training or methodological assistance as described in Article 7.

6.2. Technical Contacts. The Client shall designate by email sent to DV DIGITAL at least two (2) technical contacts within its organization to centralize Technical Support requests and implement the responses provided by Technical Support within the Client’s information system as well as Updates, to the exclusion of any other natural persons within the Client’s organization for the performance of the Agreement (“Technical Contacts”). These Technical Contacts are natural persons possessing adequate technical skills and who are previously trained in the administration and use of the Software Package. Their substitutes or replacements, even temporarily, must also meet these training requirements regarding the Software Package and the Client shall inform DV DIGITAL thereof in writing as soon as possible. These contacts are responsible for analyzing the problem and presenting it to DV DIGITAL. They are the only persons authorized to submit a Request to DV DIGITAL Support, which shall not be required to respond to Requests originating from other contacts. These persons must also have the necessary skills to use the Software Packages and install Updates and/or patches.

The Technical Contacts have access to DV DIGITAL Technical Support during Business Days:

• either by email at: assistance@DV Digital.com

• or by requesting a call-back from a member of the Technical Support team.

6.3. Performance conditions. In order to facilitate the performance of the Services, the Client undertakes to describe precisely its Request and the situation encountered (description of context, error messages, sequence of menus, etc.), documenting it where applicable by any means at its disposal in order to enable DV DIGITAL to reproduce and qualify any incidents and/or Anomalies brought to its attention.

DV DIGITAL’s response shall be provided in electronic form.

In the absence of an immediate response and/or handling, the time for handling the Request by a DV DIGITAL technician shall be eight (8) Business Hours from registration of the Request made during Support opening hours.

The Service may only be provided by DV DIGITAL insofar as:

• the Users have previously been trained in the use of the Software Packages and their Updates;

• the Software Packages are used on hardware supplied by or compliant with the Publisher’s Technical Prerequisites;

• the Client uses one of the last two Major Updates of the Software Package;

• the Client has the technical means enabling remote assistance.

6.4. Recording and follow-up. An incident number is assigned to the Client for each triggering of a Request for handling.

Each handling gives rise to the recording of a handling sheet recorded in a call tracking database.

The call history and details of the interventions carried out are provided upon written request to the Technical Contacts authorized by the Client.

6.5. Corrective Maintenance. Corrective Maintenance is implemented where access to the Source Codes of the Software Package is essential to correct the Anomaly encountered by developing an Update within the Publisher’s Research & Development services.

Insofar as this Service has been subscribed to by the Client, the Supplier shall endeavor to correct or propose a workaround for any malfunction of the Software Package reported to it by the Client and which prevents the Software Package from operating in accordance with its operating specifications described in the Documentation. In the course of providing this Service, DV DIGITAL may determine the origin of a hardware failure on which the Software Package is used, it being specified that the resolution of such failure is excluded from the Agreement and may only be performed under additional services that may be ordered by the Client. Failing to implement a workaround, in particular in the event of a Blocking Anomaly, DV DIGITAL shall forward the Request to the Publisher so that it may be handled and a fix may be provided via an Update. The Client is informed that DV DIGITAL’s sole obligation under the present Agreement consists in forwarding the Request to the Publisher, without being bound by any time limit for handling or correcting the Anomaly encountered, which depends exclusively on the Publisher.

In order to enable the implementation of the Corrective Maintenance Services, the Client must promptly inform the Supplier by communicating in writing via the Technical Support email address the information enabling DV DIGITAL to recognize and reproduce the Anomaly. In particular, the Client undertakes to transmit to the Supplier a precise description of its hardware and software configuration as used when the Anomaly occurred, it being understood that it shall only be taken into account insofar as DV DIGITAL succeeds in reproducing it.

6.6. Updates. Depending on technical availability and the nature of the Updates, the Client may download the Updates via the Software Package, according to the regularity of their integration into the Software Package by the Publisher.

The Client is informed that certain Updates, due to their content (functional or ergonomic evolutions) or their technical complexity (which may notably, but not exhaustively, result in parameterization modifications), may require the performance of service provisions (notably installation and/or training). The Client is further informed that parameterization services are not included in the provision of Updates.

6.7. Warranties. The Client acknowledges that DV DIGITAL is not the author of the Software Packages developed by third-party publishers. Consequently, all warranties relating to the Software Packages, notably warranties of conformity, non-infringement, hidden defects and peaceful enjoyment, are intended to be borne by the Publisher. Consequently, the Client shall address any warranty claim of any nature directly to the Publisher pursuant to the LSDA. The Client accepts that, in order to benefit from such warranties, it shall take all necessary steps directly with the Publisher, whose contact details shall be provided to it, upon express request, by DV DIGITAL. In the event that the Client addresses a warranty claim of any nature to the Supplier, the Supplier’s sole obligation in this respect shall be to forward such claim to the Publisher as soon as possible.

Except for this obligation, the Supplier excludes all warranties of any nature whatsoever. The Client acknowledges that the performance of the Software Packages depends on its ability to use them properly. In this respect, the Supplier does not guarantee that the Software Packages will meet all the Client’s needs, nor that their operation will be continuous and error-free.

6.8. Suspension of the Services. The Services shall be suspended if:

• the Client itself makes modifications to the components of the Software Package, whatever their nature: executable binary programs, procedures, screens and standard reports or generally to the other components delivered;

• the Client adds any software or packages not compatible with the Software Package or the database system used by the Software Package;

• the Client does not implement update versions of the Software Package, Software or operating systems at its disposal after expiration of the maintenance periods periodically communicated by the respective publishers;

• the Client does not implement patches or work procedures transmitted by the Supplier to prevent recurrence of Anomalies;

• the Client does not apply the recommendations issued by the Supplier pursuant to the present General Terms;

• the Software Package has been changed, modified or maintained by the Client or by a third party without the Supplier’s prior written consent;

• the malfunctions are due to external reasons to the Software Package including, but not limited to, interruption of telecommunication and/or electrical networks, insufficiency of equipment on which the Software Package is to operate, accidents or natural disasters.

6.9. Duty to inform. In order to enable DV DIGITAL to perform the Services, the Client must provide DV DIGITAL with all means and information to facilitate the performance of the Services, and notably provide all documents, information and existing elements necessary for proper understanding of the problem raised.

The Client undertakes to comply with the normal conditions of use of the Software Package and the recommendations of DV DIGITAL, in particular those described in the Software License Agreement.

Under its duty to inform, the Client must communicate to DV DIGITAL any changes in the configuration of its IT equipment that may affect the use of the Software Package or likely to have a negative impact on the Services. The Client must inform DV DIGITAL by registered letter with acknowledgement of receipt of any change of hardware, operating system and, more generally, any changes made to the entire system.

6.10. Access to the Software Packages. The Client shall provide access to the Software Package and the dedicated Technical Environment and shall facilitate the intervention of DV DIGITAL representatives in the performance of their mission, during agreed hours.

6.11. Necessary equipment. The Client undertakes to equip itself, at its own expense, with the hardware, software, networks and technical environments necessary for remote maintenance.

6.12. Interventions. The Client shall refrain from entrusting maintenance operations to a third party. Failing this, DV DIGITAL’s liability under the present Agreement may not be incurred.

6.13. Data backup. The Client undertakes to back up its data, files or programs contained therein in order to avoid any loss or deterioration. The Client remains exclusively responsible for the security of its information and shall not disclose such information except insofar as necessary for the performance of the Services. The Client is fully aware that the Services require constant and active cooperation of the Parties.

Article 7 : Excluded Services

The Services strictly include only those described in the Article “Services Provided”. Any services relating to hardware, software or operating systems, system administration or configuration, assistance in the performance of tests, deployment of the Software Package in an environment, interoperability of the Software Package with other software or information systems, installation services, implementation, expert services, audit, training or consulting directly or indirectly related to Updates and falling within DV DIGITAL’s other activities (Analysis, expertise and consulting…), parameterization or any other IT or functional advice are not covered by the present General Terms and must be agreed under a separate agreement with the Supplier.

By the Client

The Services are not intended to compensate for a lack of training in the use of the Software Package and the Client undertakes to ensure that its employees or external consultants concerned follow training adapted to their respective user profiles for the proper use of the Software Package.

For the purpose of specifying the Services provided, the following services are not provided under the Services:

• requests for training, installation, consulting or assistance services which may be offered by DV DIGITAL or its partners under training, installation, consulting or assistance agreements;

• handling of Anomalies affecting parameterization (elements extracted or generated through access to the standard functions of the Software Package) resulting (i) from handling errors, manifest negligence, misuse and more generally any non-compliant use and/or (ii) from non-observance by the Client of usage rules or directives of hardware manufacturers, of the Publisher of the Software Package and of the publisher of the database system and/or (iii) from failure to comply with instructions, procedures, security and precautionary measures and other various warnings contained in the Documentation of the Software Package;

• requests for travel or intervention on the Client’s Site;

• (i) maintenance services relating to software and infrastructure of the Technical Environment and/or (ii) hardware, accessories and supplies, unless a separate agreement has been concluded between the Parties;

• the occasional or regular implementation of backups and their control and/or restoration of degraded or deleted files or archives and/or updating of files following input or handling errors;

• reloading (i) the server operating system and client workstations or (ii) any software not published by DV DIGITAL;

• software other than those specified in the Agreement and operating simultaneously or in conjunction with the Software Package.

 

FINANCIAL PROVISIONS

 

Article 8 : Price

8.1. Price. The prices of the items ordered under the Agreement are indicated in Euros excluding taxes and appear in the Specific Conditions and/or in the Purchase Order. Upon acceptance of the Agreement, the Client shall pay to DV DIGITAL the total amount including taxes of the items ordered, namely the Licenses excluding Services.

8.2. Usage Fee. In consideration of the right to use the Software Package granted to it, the Client undertakes to pay the amount of the fee for each Software Package or Application concerned.

 

Article 9 : Invoicing and payment

9.1. Invoicing terms.

9.1.1. Licenses – Rental – Maintenance – Subscription and Xaas Fees. The related invoicing shall be carried out according to the conditions defined in the Purchase Order.

9.1.2. Services. During the entire duration of the Agreement, the Services shall be invoiced according to the conditions defined in the Purchase Order.

The same invoicing terms shall apply upon renewal of the Agreement under the conditions of Article 4 of the Agreement.

9.2. Payment terms

9.2.1. Licenses – Rental – Maintenance – Subscription and Xaas Fees

DV DIGITAL’s invoices shall be paid without discount by bank transfer or direct debit within thirty (30) days from the date of issuance of the invoice for Clients who have obtained coverage approval with Facto.

In the event of refusal of coverage by Facto, payment shall be made by the Client upon receipt of the invoice.

In the case of direct debit, the Client undertakes to provide its bank details (RIB) and to complete the direct debit authorization requested by the Supplier.

9.2.2. Services & Maintenance

DV DIGITAL’s invoices shall be paid without discount by bank transfer or direct debit within thirty (30) days from the date of issuance of the invoice for Clients who have obtained coverage approval with Facto.

In the event of refusal of coverage by Facto, payment shall be made by the Client upon receipt of the invoice.

In the case of direct debit, the Client undertakes to provide its bank details (RIB) and to complete the direct debit authorization requested by the Supplier.

The same payment terms shall apply upon renewal of the License under the conditions of Article 4 of the Agreement.

9.2.3. Price revision

In the event of an update of the recommended public price list of our partners (publishers, manufacturers, Service Providers, others), the prices of Maintenance, Services and Usage Fees (in the case of a Rental) shall be indexed on the renewal date of the Agreement, in accordance with the amount of the revision indicated by our partners.

In the absence of variation of the current public price lists of our partners, the prices of Maintenance, Services and Usage Fees (in the case of a Rental) shall be indexed on 1 January of each year:

• either according to the variation of the Syntec index for IT services for the month of July of each year,

• or with a variation limited to three (3)%.

In the event of a price revision according to the Syntec index, the Parties agree in advance to the following formula:

P = Po x Syntec
Syntec Co

Po = price agreed upon signature of the Agreement.

Syntec = value of the index in July preceding the revision

Syntec Co = value of the index in July preceding the signature of the Agreement.

9.2.4. Absence or late payment

Any late payment shall automatically give rise, without prior notice, to late payment penalties at a rate equal to three times the legal interest rate, calculated per day of delay.

The Supplier reserves the right to suspend performance of the Services, in the absence of payment, after formal notice by registered letter with acknowledgement of receipt remaining unsuccessful for more than fifteen (15) days, until payment of the outstanding invoice, without such suspension being considered as termination of the Agreement by the Supplier nor giving rise to any right to compensation for the Client. Under no circumstances may payments be suspended or subject to any compensation without the Supplier’s prior written consent. Any partial payment shall first be applied to the non-preferential portion of the debt, then to the sums whose due date is the earliest.

In accordance with Article L.441-6 of the French Commercial Code, such late payment shall also automatically entitle DV DIGITAL to apply to the Client a fixed indemnity of forty (40) euros per invoice concerned by the late payment.

Furthermore, failure by the Client to pay an invoice on its due date shall allow DV DIGITAL to demand payment of all other invoices, including those not yet due.

By derogation from Article 1253 of the French Civil Code, it is expressly agreed that where several invoices are due and the Client makes a partial payment, DV DIGITAL shall be free to allocate such payment as it sees fit.

It is further recalled that the license of Software and/or provision of IT works such as developments imply the granting of copyright to the Client. In the event of non-payment under the conditions set out above, and if the Supplier decides to terminate the Agreement, use of the Software Package and/or works provided by the Client shall be considered as counterfeiting.

GENERAL PROVISIONS

 

Article 10 : Obligations of DV DIGITAL

DV DIGITAL undertakes to implement all necessary means for the performance of the Services. Given the state of the art, DV DIGITAL does not guarantee that the Services will resolve all difficulties encountered, or that after its intervention the difficulty encountered will not reappear, or that any other difficulty will not arise later.

Nevertheless, DV DIGITAL guarantees that the Services shall be performed with professional diligence and care. The obligations undertaken by DV DIGITAL are limited to the correction of Anomalies of the Software Package and its restoration into conformity with the Documentation.

 

Article 11 : Obligations of the Client

11.1. The Client has chosen the Software Packages and, where applicable, the Applications, in light of the Documentation and the information which it acknowledges having received. It is the Client’s responsibility to assess with the utmost precision its own needs and to evaluate their suitability to the Software Packages and/or Applications.

11.2. It is the Client’s responsibility to ensure that its own structures are capable of processing the chosen Software Package and that it has the necessary competence for its implementation. It is in particular the Client’s responsibility to verify the compliance of its Technical Environment with the Technical Prerequisites.

11.3. The Client undertakes, where the Supplier deems it necessary, to allow the latter access to the Client’s installation in order to carry out useful interventions, during the maintenance service opening hours of the Supplier.

Any refusal by the Client to allow access to its installation shall release the Supplier from any liability and any commitment towards the Client.

11.4. The Client is solely responsible for:

• the use it makes of the Software Packages as well as the use of the results it may obtain according to the characteristics and specifications specific to each of them, the Client always having to verify, according to the rules in use in its own profession, the results obtained;

• the implementation of any useful process and measure intended to protect its hardware, software, passwords, to back up its data (before and after performance of the services), and to protect itself against any virus or intrusion;

• the choice and acquisition, prior or subsequent, from third parties of hardware and software as well as their possible incompatibilities with the items ordered under the Agreement, unless the Supplier has expressly and previously validated such acquisitions. In the absence of such validation, the Supplier’s liability, directly or indirectly, may not be incurred for malfunctions and disturbances which may appear in the operation of the Client’s installation;

• the project management of its computerization in the event of multiple suppliers chosen by it;

• compliance with the Technical Prerequisites (present and future) in order to avoid harmful consequences such as slowdowns, blockages, alteration of Data;

• all consequences, at the level of the Software Packages subject to the Agreement, resulting from modifications decided and/or carried out by the Client, of its installation or of its Environment.

11.5. The Client declares that any software or package used that may or must interface with the Software Packages are lawful versions and guarantees the Supplier against third-party claims in this respect.

11.6. It is also the Client’s responsibility to take all necessary precautions to guarantee the security and preservation of documents, files, recorded data and information media used and in its possession, to choose and implement means to control access thereto and ensure their security against any unauthorized communication or untimely destruction.

 

Article 12 : Cooperation

For proper performance hereof, the Client undertakes to cooperate actively, regularly and in good faith with DV DIGITAL. Thus, it shall be the Client’s responsibility to provide DV DIGITAL with all information necessary for the performance of the Services provided and to inform DV DIGITAL of all difficulties of which it may become aware or which its knowledge of its field of activity enables it to foresee, as the Services are performed.

 

Article 13 : Liability

For the performance of all Services, the Supplier shall be subject to a best-efforts obligation.

The Supplier shall not be held liable for damage suffered by the Client in connection with the Agreement where such damage has been caused by the negligence, error or fault of the Client, by the act of a third party, by force majeure or by any other cause or event beyond the Supplier’s reasonable control.

Without prejudice to the foregoing, the liability of each Party is limited to direct and foreseeable damages.

Consequently, under no circumstances may the Parties incur liability for indirect or unforeseeable damages, whether material or immaterial, including notably loss of profit, decrease in activity, loss of operation, loss of turnover or profit, loss of clientele, loss of opportunity, loss or corruption of files or data, cost of obtaining a substitute product, service or technology, or any other financial losses originating from or resulting from the present Agreement. Any damage suffered by a third party constitutes indirect damage and therefore does not give rise to compensation.

In the event that the Supplier’s liability is retained, the total and cumulative compensation, all causes combined, principal, costs and interest, to which the Client may be entitled shall be limited to the total sums paid by the Client to the Supplier in respect of the Software Packages supplied under the Agreement during the twelve (12) months preceding the event or cause giving rise to its liability.

Subject to mandatory legal provisions, no legal action may be brought on the basis of contractual liability or any warranty under the Agreement after the expiry of a period of two (2) years from the occurrence of the event giving rise to such action.

The Parties acknowledge that the price of the Agreement reflects the allocation of risks arising from the Agreement, as well as the economic balance desired by the Parties, and that the Agreement would not have been concluded without the limitations of liability set out herein.

 

Article 14 : Force majeure

DV DIGITAL’s liability may under no circumstances be sought in the event of force majeure. Expressly, the following shall be considered as cases of force majeure, in addition to those usually recognized by the case law of French courts and tribunals: total or partial strikes internal or external to DV DIGITAL, blockage of means of transport for any reason whatsoever, unavailability or shortage of hardware ordered from DV DIGITAL’s suppliers or subcontractors, judicial liquidation of one of its suppliers or subcontractors, blockage or disruption of communication, telecommunication or postal means.

Initially, cases of force majeure shall suspend performance of the Agreement. If cases of force majeure last for more than three (3) months, the Agreement shall be automatically terminated, unless otherwise agreed by the Parties

 

Article 15 : Termination

Without prejudice to any other rights, DV DIGITAL may immediately terminate the Agreement by operation of law, without incurring any obligation or liability as a result thereof, (i) if the Client does not pay the maintenance invoices due after receipt of a formal notice from DV DIGITAL; (ii) if the Client breaches an obligation of the Agreement and does not remedy such breach within thirty (30) days from written notification by DV DIGITAL to that effect; (iii) if the Client is subject to reorganization, merger, change of control, or assignment; (iv) where the Publisher has informed DV DIGITAL of the discontinuation of maintenance of the Software Package and/or the discontinuation of its marketing; (v) to the extent permitted by law, if the Client is subject to judicial reorganization or liquidation proceedings; and (vi) if DV DIGITAL faces unforeseen difficulties resulting in an increase in the cost of the Services disproportionate to the price defined in the Purchase Order. Furthermore, where the Client is no longer authorized to use the Software Package, for whatever reason, the present Agreement shall be terminated by operation of law.

 

Article 16 : Confidentiality

The Agreement as well as all information exchanged between the Parties or of which they may become aware during performance of the Agreement, whatever their medium and including the Software Packages and Software, shall be considered confidential (hereinafter the “Confidential Information”). Each Party undertakes to protect the Confidential Information and not to disclose it to third parties without the prior written authorization of the other Party.

Each Party shall be released from its confidentiality obligations with respect to any information (i) which was in its possession prior to its disclosure by the other Party without such possession resulting directly or indirectly from unauthorized disclosure of such information by a third party, (ii) which is part of the public domain at the date of acceptance of the Agreement or which subsequently falls into the public domain without the cause being attributable to a breach by that Party of its confidentiality obligations under the Agreement, (iii) which has been independently developed by that Party, or (iv) whose disclosure is required by law or by a competent judicial or administrative authority, or made necessary for the purposes of legal action and/or proceedings. The Parties undertake to comply with the obligations arising from the present Article for the entire duration of the Agreement and for five (5) years following its termination.

 

Article 17 : Assignment

17.1. The Agreement may in no case be assigned in whole or in part, whether for consideration or free of charge, by the Client without the prior written, express consent of DV DIGITAL.

17.2. DV DIGITAL reserves the right to assign the Agreement without formalities. In the event of assignment, the assignee establishment shall be substituted for DV DIGITAL as from the date of assignment. The Client expressly acknowledges that the assignee establishment shall become its contractual counterparty.

 

Article 18 : Non-solicitation of personnel

The Client undertakes, during the duration of the Agreement and twelve (12) months after its end, not to recruit or have work directly or indirectly any member of the Supplier’s personnel, except with the latter’s prior written authorization. In the event of breach, the Client shall immediately pay the Supplier a lump-sum indemnity equal to the salary of the poached employee during the twelve (12) months preceding his/her departure, including employee and employer social charges, and may furthermore claim compensation for the actual damage suffered if it exceeds the salary charges alone.

 

Article 19 : Anti-corruption

DV DIGITAL is an ethical company that attaches particular importance to combating fraud and corruption and intends that any person or company in relationship with DV DIGITAL adhere to the same principles and strictly comply with the regulations in force.

Consequently, any contracting party of DV DIGITAL, hereinafter the “Contracting Party”, undertakes to irrevocably comply with the provisions set out in this Article.

Any breach by the Contracting Party of the provisions of this Article shall be considered a serious breach authorizing DV DIGITAL, if it so wishes, to terminate the present Agreement without notice or compensation, without prejudice to any damages to which DV DIGITAL may be entitled as a result of such breach.

The Contracting Party warrants that any person, natural or legal, acting on behalf of the Contracting Party in connection with the present Agreement:

a) Shall not, by act or omission, do anything likely to engage DV DIGITAL’s liability for non-compliance with existing regulations relating to the fight against corruption;

b) Shall implement and maintain its own ethics and anti-corruption policies and procedures;

c) Shall inform DV DIGITAL without delay of any event of which it becomes aware that could result in the obtaining of an undue advantage, financial or otherwise, in connection with the present Agreement;

d) Shall provide all necessary assistance to DV DIGITAL to respond to any request from a duly authorized authority relating to anti-corruption matters.

The Contracting Party shall indemnify DV DIGITAL against any consequences, notably financial, of a breach by it of the obligations set out in this Article.

The Contracting Party hereby authorizes DV DIGITAL to take any reasonable measure intended to verify the strict compliance by the Contracting Party with the obligations set out in this Article.

 

Article 20 : Social regulations

DV DIGITAL undertakes to apply all legal and regulatory provisions incumbent upon it in matters of labor law and social legislation and in particular to provide the Client, at its request, with any certificates which the latter may be entitled to require.

Where DV DIGITAL’s employees are required to work, for the needs of performance of the Agreement, on the Client’s premises, DV DIGITAL undertakes to comply with the rules relating to safety and hygiene in force at the Client’s premises and which shall have been communicated by the Client to DV DIGITAL. In this respect, DV DIGITAL undertakes to:

• give all necessary instructions to its employees so that they comply with the safety and hygiene regulations in force at the Client’s premises and communicated by the Client to DV DIGITAL;

• take all necessary measures to ensure, under its own responsibility, the medical supervision of its employees.

DV DIGITAL’s personnel shall in all circumstances remain employees of said company. They shall perform their duties under the direction, control and responsibility of DV DIGITAL, which shall ensure throughout performance of the Agreement their administrative, accounting and social management.

 

DISPOSITIONS DIVERSES

21.1. DV DIGITAL implements processing of Personal Data in accordance with the provisions of the Appendix “Personal Data Processing and Protection Policy”. It shall be the responsibility of the Client to carry out the procedures, declarations and authorization requests provided for by the laws and regulations in force concerning the processing it carries out and the Data processed.

21.2. The Client accepts that the Supplier may freely and without prior formalities subcontract all or part of its obligations hereunder, under its responsibility.

21.3. The Client accepts that the Supplier, in order to correct an error, after having informed the Client thereof, may carry out any appropriate modification, provided that it does not substantially alter the proper performance of the Agreement. Should this be the case, the Parties undertake to meet in order to jointly find a solution.

21.4. The Client authorizes the Supplier to cite its name and/or reproduce its logo as a reference or for its own advertising within the various marketing materials of the Supplier, in any form and medium whatsoever, within the framework of its commercial activity, intended for third parties, without granting the right to use other distinctive signs belonging to the Client other than those referred to in the present clause.

21.5. The fact that one of the Parties does not avail itself of one of the obligations referred to in the Agreement may not subsequently be interpreted as a waiver of the obligation in question.

21.6. If one or more provisions of the Agreement are held invalid or declared as such pursuant to a law or following a final decision of a competent court, the other provisions shall retain their force and scope.

21.7. DV DIGITAL reserves the right to invoice the Client for time spent investigating the causes of incidents where the incident encountered by the Client does not originate from a service or supply provided by DV DIGITAL hereunder.

21.8. The Client is informed that, in the event of an audit of its computerized accounting, the Supplier shall make available to the tax authorities the IT documentation and shall assist the Client upon its express request and for remuneration to be defined by mutual agreement, in order to respond to any request for information from the authorities concerning such documentation.

Article 22 : Governing law and jurisdiction

THE PRESENT TERMS ARE GOVERNED BY FRENCH LAW. IN THE EVENT OF A DISPUTE, EXPRESS JURISDICTION IS GRANTED TO THE COMMERCIAL COURT OF LYON, NOTWITHSTANDING MULTIPLE DEFENDANTS OR THIRD-PARTY PROCEEDINGS, INCLUDING FOR EMERGENCY OR INTERIM PROCEEDINGS BY SUMMARY APPLICATION OR PETITION.

 

POLICY ON THE PROCESSING AND PROTECTION

OF PERSONAL DATA

 

Article 23 : DEFINITIONS

In all cases where they appear with a capital letter, in the singular or plural, in the present Article, the following terms shall have the meaning defined below:

“Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing. Where the purposes and means of such processing are determined by Union law or the law of a Member State, the controller may be designated or the specific criteria applicable to its designation may be provided for by Union law or by the law of a Member State.

“Processor” means the natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Controller.

“Applicable Regulation” means all European Union directives and regulations in force governing the use and/or processing of personal data, including notably the GDPR and all associated national laws.

“EEA” means the European Economic Area.

“GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 relating to the protection of natural persons with regard to the processing of personal data and on the free movement of such data, repealing Directive 95/46/EC (General Data Protection Regulation).

“Personal Data” means any information relating to an identified or identifiable natural person (“Data Subject”). An identifiable natural person is deemed to be a natural person who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier, or to one or more specific elements relating to his or her physical, physiological, genetic, psychological, economic, cultural or social identity.

“Client Personal Data” means the data, information or documents provided, entered or transmitted by the Client or on its behalf within the Services, and which may include data relating to its clients and/or its employees.

“Processing” means any operation or set of operations which is performed, whether or not by automated means, on data or sets of Personal Data, such as collection, recording, organization, structuring, storage, adaptation or modification, retrieval, consultation, use, disclosure by transmission, dissemination or any other form of making available, alignment or combination, restriction, erasure or destruction, and “process”, “processed” and “processes” shall be interpreted accordingly.

“Supervisory Authority” means an independent public authority established by a Member State which is responsible for monitoring the processing of personal data.

 

Article 24 : PERSONAL DATA

24.1. Terms of Processing of Personal Data

The Parties acknowledge and agree that the Client is the Controller of the Personal Data collected and processed in the context of the performance of the General Terms accepted by the Client, and that it assumes sole and full responsibility for the compliance of such Processing with the Applicable Regulation.

In the context of the performance of said General Terms, DV DIGITAL, in its capacity as Processor, undertakes to process the Personal Data on behalf of the Controller under the conditions defined below:

The Client declares:

• That it complies with the Applicable Regulation and ensures that its instructions to DV DIGITAL for the Processing of Personal Data comply therewith;
• That it is authorized, in accordance with the Applicable Regulation, to communicate to DV DIGITAL the Personal Data of the Data Subjects concerned by such Processing;
• That it will obtain, where applicable, the consent of the Data Subjects concerned by such Processing, in compliance with the Applicable Regulation, in order:

o To communicate said Client Personal Data to DV DIGITAL;

o To enable DV DIGITAL to process the Client Personal Data for the purpose of performing the said General Terms; and

o To allow DV DIGITAL to communicate said Personal Data: (a) to its partner service providers and affiliated companies; (b) to any public authority where applicable; (c) to any third party in the context of compliance with a legal or regulatory obligation binding on DV DIGITAL; and (d) to any other person entitled to request disclosure of the information, including where the recipients of the Personal Data are located outside the European Economic Area.

DV DIGITAL warrants and declares that when acting as Processor, it processes the Client Personal Data:

• Only insofar as necessary for the performance of the General Terms and/or;
• In accordance with the written instructions of the Client.

24.2. Analysis of Personal Data

The Client is informed and accepts that DV DIGITAL may collect, store and use the Client’s Personal Data generated and stored during its use of the Services for the purpose of:

• Conducting research and development in order to improve DV DIGITAL’s and/or its Affiliates’ Services, products and applications;

• Developing and providing existing and new services and functionalities (including statistical analyses, comparative analyses or forecasting services); and

• Offering the Client location-based services (for example, location-related content) for which DV DIGITAL collects geolocation data in order to provide the Client with a relevant experience,

It being understood that DV DIGITAL ensures that such collected information is processed in a pseudonymized manner and is displayed only in aggregated form and not in connection with the Client or any other Data Subject. Such Processing shall be carried out by DV DIGITAL in its capacity as Controller and on the basis of its legitimate commercial interest. The Client may at any time request that DV DIGITAL cease the use of the Client’s Personal Data as described in this paragraph by contacting DV DIGITAL at the following address: contact@DV DIGITAL.com.

The Client is informed and accepts that DV DIGITAL may record and use its Personal Data in order to send it advertising or marketing messages (including electronic communications) which may be useful to the Client, depending on its use of DV DIGITAL’s Services and Products. The Client’s Personal Data shall be processed by DV DIGITAL in its capacity as Controller, on the basis of its legitimate commercial interest. The Client may at any time request that DV DIGITAL cease the use of the Client’s Personal Data as described in this paragraph by clicking on the “unsubscribe” button in the relevant message or by contacting DV DIGITAL at the following address: contact@DV DIGITAL.com.

 

Article 25 : OBLIGATIONS OF DV DIGITAL

DV DIGITAL undertakes to:

• Assist the Client, insofar as possible, through appropriate technical and organizational measures, in fulfilling its obligation to respond to individual requests for the exercise of the rights of Data Subjects;

• Assist the Client, insofar as possible and on the basis of the information available to DV DIGITAL, in enabling the Client to comply with its obligations relating to:

o Notifications to Supervisory Authorities;

o Prior consultation with such Authorities;

o Communication to Data Subjects of any breach; and

o Privacy impact assessments.

DV DIGITAL further undertakes to:

• Take all reasonable measures to ensure compliance by any employee having access to Personal Data with its obligations hereunder;

• Ensure that access to Personal Data is strictly limited to employees who need such access for the sole purposes of performing the General Terms;

• Ensure that employees authorized to process Personal Data have committed themselves to confidentiality or are subject to an appropriate statutory obligation of confidentiality.

If required by the Applicable Regulation, DV DIGITAL shall appoint a Data Protection Officer and make available the information relating to such appointment.

DV DIGITAL implements and maintains appropriate technical and organizational security measures in light of the risks presented by the Personal Data Processing activities in order to protect Personal Data against unauthorized or unlawful Processing and against accidental loss, alteration, or unauthorized disclosure to a third party.

Subject to any existing confidentiality obligation towards a third party, DV DIGITAL undertakes to make available to the Client all reasonably necessary information to enable the Client to demonstrate compliance with its own obligations hereunder. In this respect, DV DIGITAL may in particular provide the Client with any security audit report prepared by it or by any independent auditor. Failing this or at the Client’s request, DV DIGITAL undertakes to allow independent audits to be carried out, including inspections by a qualified third-party auditor mandated by the Client and approved by DV DIGITAL, at the Client’s expense.

Article 26 : PERSONAL DATA BREACH

DV DIGITAL shall notify the Client if it becomes aware of a breach of security rules resulting in the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data, arising from an act or omission on the part of DV DIGITAL or its subsequent subcontractors.

 

Article 27 : TRANSFER OF DATA OUTSIDE THE EEA

The Client expressly agrees that DV DIGITAL may transfer the Client’s Personal Data within DV DIGITAL or its Group in accordance with the terms and conditions set out in DV DIGITAL’s framework agreements relating to data transfer and processing, which incorporate the European Commission’s standard contractual clauses.

The Client acknowledges and agrees that the performance of the General Terms it has accepted may involve the Processing of Personal Data by subsequent subcontractors located in countries outside the EEA. However, DV DIGITAL shall not transfer Personal Data outside the EEA to a subsequent subcontractor without the Client’s prior written consent where such transfer is not subject to: (a) an adequacy decision (pursuant to Article 45 of the GDPR); or (b) appropriate safeguards (pursuant to Article 46 of the GDPR); or (c) binding corporate rules (pursuant to Article 47 of the GDPR).

 

Article 28 : RETENTION OF PERSONAL DATA

At the Client’s request, DV DIGITAL shall delete or return to the Client all Personal Data concerning it and destroy all existing copies of such Data, unless DV DIGITAL is legally required to retain them or has another legitimate business reason for doing so.

Article 29 : USE OF SUBSEQUENT SUBCONTRACTORS

DV DIGITAL may not engage a subsequent subcontractor to carry out Processing on behalf of the Client without the Client’s prior written authorization. If the use of a subcontractor is accepted by the Client, DV DIGITAL shall ensure that the obligations set out herein are imposed on such subsequent subcontractor.