Date as of: 15/12/2021
DYNAMIC SCREEN, a simplified joint stock company organized and operating under the laws of France, having a share capital 17,380 Euros, registered with the Bordeaux Trade and Companies Register under number 834 702 821, having its registered office located at 48 Rue Thiac, 33000 Bordeaux, France (hereinafter "DYNAMIC SCREEN"), operates the COMEEN solution which can be accessed via the installation of the COMEEN Add-on on the Google Workspace Marketplace, the Add-in on Microsoft AppSource, the Slack Application, the Workplace Chat application and if applicable all other current or future applications and platforms (the "COMEEN Solution" or alternatively the "Solution").
The COMEEN Solution is a SaaS based solution consisting in the following Services:
Comeen Desk; and
The Client expressly acknowledges that it is solely responsible for the processing of all data transferred or communicated by it and by its authorized Users on the Solution in view of using the Services (the "Client Data").
In order to become a Client, the Client must be a merchant or exercise an independent professional activity or act within the framework of its usual and principal professional activity.
The Services are subject to evolution and DYNAMIC SCREEN may suppress services as well as propose additional or new services, which shall be integrated into the Solution, and which may be subject to additional, distinct or supplementary terms and conditions of use. The different Services and subscription conditions are defined on the COMEEN website at the following address: https://getcomeen.com/ (the "COMEEN Site").
The use of the Services is expressly subject to the acceptance of these Terms, which the Client acknowledges having received in a readable and comprehensible manner.
If the Client is a legal entity, the applicant hereunder, who accepts these Terms in the name and on behalf of the Client, declares and warrants that it is duly authorized for such purpose and has the capacity to bind the Client to these Terms.
The Client guarantees and ensures compliance to these Terms by its Users. The Client remains entirely liable towards DYNAMIC SCREEN for the use by all its Users of the Services and the Solution.
It is the Client’s responsibility to have an Internet access and the necessary equipment for its access and its Users’ access to the Services.
If any part of the Terms should be considered to be illegal, invalid or inapplicable, for any reason whatsoever, the provisions in question shall be deemed unwritten, without putting into question the validity of the other stipulations, which shall continue to apply.
The fact that DYNAMIC SCREEN does not invoke at a given moment any of the provisions of the present Terms shall not be construed as any waiver of any kind whatsoever.
"Client": refers to the co-contracting party of DYNAMIC SCREEN, acting in a professional capacity.
"Personal Data": refers to, within the meaning of Regulation (EU) 2016/679 of the European Parliament and the Council of April 27, 2016 (the "General Data Protection Regulation" or "GDPR"), any information relating to an identified or identifiable natural person; it being specified that an "identifiable natural person" within the meaning of the GDPR is 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 elements specific to his or her physical, physiological, genetic, mental, economic, cultural or social identity.
"Client Data": refers to the information, documents, exchanges and any other information communicated or provided by the Client and/or its Users on the COMEEN Solution.
"DYNAMIC SCREEN": a simplified joint stock company (société par actions simplifiée) organized and operating under the laws of France, registered with the Bordeaux Trade and Companies Register under Registration Number 834 702 821, having its registered office located at 48 Rue Thiac, 33000 Bordeaux, France, publisher and holder of all rights pertaining to the COMEEN Solution.
"Solution": refers to the COMEEN solution as defined herein, published and operated by DYNAMIC SCREEN, and accessible via the installation of the COMEEN Add-on on the Google Workspace Marketplace, the Add-in on Microsoft AppSource, the Slack Application, the Workplace Chat application and if applicable all other current or future applications and platforms, and whose administration space and Users' personal spaces are accessible on the Web at the URLs communicated by DYNAMIC SCREEN, as well as, if applicable, all other present or future systems, in any form and on any medium.
"Services": refers to all the functionalities and services proposed by DYNAMIC SCREEN on the Solution. The Services are subject to evolution following terms and conditions defined herein.
"User": refers to any person authorized by the Client to access and use certain or all Services in relation to its relationship with the Client, and the rights of use granted by the Client to the User, and who accesses and/or uses the Services of the Solution in a professional capacity. It is understood that the User may be an employee, agent or representative of the Client or of an affiliated company within the meaning of Article L.233-3 of the French Commercial Code, or be a third party user or member of a third party entity, according to the applicable terms and conditions. Third party users who have the quality of visitors, in particular in the context of the use of the COMEEN Visitor Services, are specifically designated as "Visitors".
3.1 Conditions of access and use of the solution
The Client is solely responsible for the proper functioning of its computer equipment and of its access to the Solution. The Client is solely responsible for the maintenance of its computer system to allow a reliable connection with the DYNAMIC SCREEN Services. All costs incurred by the Client for the access by the Client and its Users to the Solution, and in particular connection costs and costs of acquisition or renewal of computer equipment are under the sole responsibility of the Client.
DYNAMIC SCREEN shall not be liable in the event of impossibility to access the Services due to an event which is beyond its control. DYNAMIC SCREEN shall not be liable in the event in particular of attack to the computer equipment of the Client or its Users by a malicious software, or in the event of interruption or failure of the Internet connection of the Client.
The Client may only use the Solution in connection with the Services and in accordance with the terms hereof. It is responsible for the use of the Services by its Users. It is its responsibility to ensure that Users comply with the contractual conditions of access to the Services.
The Client may not transfer or assign in any way whatsoever the right of access to the Services without the prior written consent of DYNAMIC SCREEN.
The Client undertakes not to allow unauthorized persons to access the Services and must ensure that each authorized person respects the rules of confidentiality of their personal identifiers and passwords.
3.2 Creation of Client and Users accounts
In addition to the acceptance of these Terms, access to the Solution and to the Services is subject to the creation of a client account using the form provided for this purpose.
The Client and its Users shall provide to DYNAMIC SCREEN all information requested by DYNAMIC SCREEN in view of account creation.
The Client undertakes to:
a) provide true, accurate, up-to-date and complete information regarding the information as requested during the registration process; and
b) maintain and promptly update all information concerning them in order to keep it true, accurate, current and complete.
The Client guarantees and ensures compliance by its Users of such.
DYNAMIC SCREEN reserves the right to revise at any time the list of information which must be provided for the creation and maintenance of the Client's account.
Logins and passwords are used for access to the Services in order to guarantee the security of the Client's data. Logins and passwords may not be communicated to third parties.
The Client is solely responsible with regards to DYNAMIC SCREEN for the use and confidentiality of these logins and passwords and shall ensure that only authorized persons have access to the Services. The Client must inform DYNAMIC SCREEN without delay if it has knowledge in any way of a security breach related in particular to any voluntary disclosure or misappropriation of logins and passwords, and such in order to permit DYNAMIC SCREEN to immediately take any and all appropriate measures to remedy such security breach.
In the event of loss or misuse of a login and/or password, a procedure for the assigning of new logins and passwords shall be implemented by DYNAMIC SCREEN after notification of DYNAMIC SCREEN by the Client.
The Client finally is informed that access to the Services is made through the Internet. It is informed that technical hazards may affect this network and cause slowdowns or unavailability making connection impossible. DYNAMIC SCREEN shall not be held liable for difficulties relating to the accessing of the Services due to disruptions on the Internet network.
3.3 Authorisations granted to the Users
The Client defines the terms of access and of use of the Solution and the perimeter of rights of use of the Service by the Users.
3.4 General provisions
If the Client or its Users provide false, inappropriate, obsolete or incomplete information, or if DYNAMIC SCREEN has valid reasons to suspect that this information is false, inappropriate, obsolete or incomplete, DYNAMIC SCREEN reserves the right to delete the Client's account and to refuse any current or future use of the Services by the Client and its Users.
It is the Clients’ and its Users’ responsibility to ensure that their personal data allowing to create their accounts are exact and complete and to select a strong and secure password.
Not having the means to verify neither the identity nor the quality of the Clients and Users, DYNAMIC SCREEN shall not be held responsible for identity theft in case of fraudulent registration. In any case, any person who would notice the usurpation of his identity during his connection must immediately contact DYNAMIC SCREEN at the following address: firstname.lastname@example.org to permit DYNAMIC SCREEN to proceed with the relevant investigations and actions.
Access to the Client's and its Users’ personal space is strictly personal and non-transferable. As such, any use of the identifier and the password of the Client or a User on the Solution entails presumption of connection to the Solution. The Client and its Users are therefore solely responsible for the use of their user logins and passwords, for any information that may be transmitted by the Solution and for any use of one of the Solution's services.
Clients and Users alone shall ensure their confidentiality. These passwords shall not be shared nor communicated to third parties under any circumstances. Under no circumstances, DYNAMIC SCREEN shall be held liable for the loss of a login and/or a password.
It is strictly acknowledged that DYNAMIC SCREEN is not a party to all terms and agreements between the Client, the Client’s Users, and third-party service providers, in relation in particular to the use of their professional Google or Microsoft accounts.
4. DYNAMIC SCREEN services
4.1 Solution services
The COMEEN Solution consists in the following Services:
Comeen Desk; and
The different Services and functionalities are defined on the COMEEN Website.
The Client subscribes to a paid subscription per monthly or yearly periods, renewable by tacit agreement.
Subscriptions shall be automatically renewed for an identical period without cancellation by the Client under the conditions set forth in Article 6.
The subscription conditions are defined in Article 5 hereof.
In order to receive notifications, Users need to update their notification settings in My Comeen (https://my.comeen.io)
Some notification channels require additional steps, described in the associated documentation.
Specific terms are in addition provided below depending on the different Services, it being specified that specific additional or supplementary terms if and where applicable shall be provided by DYNAMIC SCREEN on the COMEEN Site or by documentation provided by DYNAMIC SCREEN.
4.1.1 Comeen Visitors
Regarding the Comeen Visitors Services, it is reminded that it is the Client’s responsibility to have all necessary and compatible equipment in order to use the Service, as defined on the COMEEN Site.
4.1.2 Comeen Today
The Client and its Users need to install and create presences through one of the official Comeen applications (as of today: Google Workspace Add-on, Google Chat, Facebook Workplace Chat, Slack application and Microsoft Teams app).
In order to use Comeen Today, the Client and its Users need to:
Create the building(s);
Create floor(s) if applicable;
Create area(s) if applicable.
4.1.3 Comeen Desk
The Comeen Desk Services require Comeen Today subscriptions for Users who will use Comeen Desk.
The Client and its Users install and book desks through one of the official Comeen applications (as of today: Google Workspace Add-on, Google Chat, Facebook Workplace Chat, Slack application and Microsoft Teams app).
In order to use Comeen Desk, the Client and its Users need to:
Create the building(s);
Create area(s) if applicable;
Place desks on the floorplans.
It is recommended to identify desks physically with a “sticker” on each desk.
4.1.4 Comeen Rooms
Regarding the use of the Comeen Meeting Rooms Services, the Client and its Users must use compatible hardware and operating systems to launch the Kiosk application (as of today iPad, Windows, Android and Chrome OS systems).
The Client and its Users must install and use the Google Workspace Add-on or Microsoft Outlook Add-in to enable Comeen Services on an event.
4.2 Rules relating to the use of the Services
The Client is responsible for all Client Data that it provides and that Users provide and use through the Solution and Services.
The Client designates the Users authorised to use the various Services. All these persons shall act under the sole responsibility of the Client.
The Client undertakes not to resell the services that are the subject to the Services to third parties or to use the Services for a purpose different from the purpose defined in the Terms. In the event of breach of this obligation, DYNAMIC SCREEN may proceed with the immediate suspension of the provisions of its Services, the closing of the account of the Client and the termination of the agreement.
DYNAMIC SCREEN may provide additional assistance for the installation and implementation and during the entire duration of the use of the Solution, and in this case in accordance with the financial terms provided by DYNAMIC SCREEN and accepted by the Client. Such assistance may be subject to particular terms.
4.3 Additional Services and modification or suppression of Services
The Solution and the Services are subject to evolution.
DYNAMIC SCREEN may propose additional services or new functionalities related to the Services.
These may be subject to additional, distinct or supplementary terms and conditions, as the case may be.
Similarly, DYNAMIC SCREEN may at its sole discretion modify or discontinue any Service or functionality. In case of suppression or modification of any Service or functionality, DYNAMIC SCREEN undertakes to inform the Client promptly.
4.4 Trial period
Following the registration, the Solution may be used for a limited period of time, as provided by DYNAMIC SCREEN, in the form of an individual and non-sharable subscription depending on the Services.
Users duly authorized by the Client may enjoy a free right of access to try Comeen features and Services for a period specified on the Comeen Site on the date of subscription.
The Client will receive an invitation to subscribe prior to the expiration date of the trial period.
5. Financial terms
5.1 Rates and terms relating to the Services subscribed to by the Client
In consideration for the right to access and use the Solution and the Services, Parties agree that the Client shall pay to DynamicScreen, in accordance with the terms defined below, license fees (the “License Fee”) for each Service subscribed.
It is specified that License Fees are subject:
Regarding Comeen Visitors: to the number of connected reception terminals;
Regarding Comeen Today: to the number of Users;
Regarding Comeen Desk: to the number of desks;
Regarding Comeen Rooms: to the number of meetings.
The terms and rates relating to the Services are provided by DYNAMIC SCREEN to the Client.
Following acceptance of the present Terms and confirmation of the order of Services, the agreement is validly executed between DYNAMIC SCREEN and the Client.
The Client can during the subscription period modify the chosen subscription. This modification shall take effect for the remainder of the subscription period subscribed and for the successive renewals subject to subsequent modification or termination. In this case, the amounts due shall be recalculated on a pro rata basis for the remaining subscription period, it being specified that subscriptions are non-refundable.
Prices, defined following the Services subscribed, are provided by DYNAMIC SCREEN and/or defined on the COMEEN Site in the Service descriptions.
The payment methods are as follows:
- Credit card;
- SEPA direct debit, for Clients located within the EU.
Where the Client is located outside the EU, Parties may agree on payments via wire transfer.
DYNAMIC SCREEN invoices are issued in Euros. All sums due hereunder shall be paid on their date of renewal.
Conditions of payment are defined by DYNAMIC SCREEN and are subject to evolution.
DYNAMIC SCREEN’s payment providers are STRIPE regarding credit card payment, and GO CARDLESS regarding SEPA direct debit.
Such providers are subject to evolution.
The Client shall pay the total amount of each invoice, all taxes mentioned on it, and may not operate any compensation with sums due or claimed payable on behalf of DYNAMIC SCREEN.
The Client agrees to pay all taxes, government fees, transfer fees and all other taxes applicable to all payments made. Any bank charges or fees or such from any other intermediaries related to the payment or any incident shall be borne exclusively by the Client. The Client undertakes that all sums paid by the Client shall be of the amount provided for herein without deduction by the Client of any amount such as any withholding tax, which shall be solely borne by the Client.
The Client shall comply with all its obligations of payment and accepts that DYNAMIC SCREEN conserves if required and necessary the aforementioned information of payment according to the conditions and applicable legal durations.
Any default of payment shall entail the automatic termination of the agreement.
The Client also agrees to the following:
Following the place of transaction, exchange transaction fees or different prices (for example, exchange rates) may be applicable.
In case of subscription, the Client shall be automatically billed with its payment method at the beginning of each subscription period for the fees and taxes applicable to that period.
In the event of total or partial non-payment, the Client shall pay to DYNAMIC SCREEN a late payment penalty equal to three (3) times the French legal interest rate.
This penalty is calculated on the basis of the amount including VAT if applicable of the amount being due, and runs from the due date of the invoice without any prior formal notice being necessary.
The Client undertakes to honour all invoices on time and without deduction. Any delay in payment shall result in the payment of a flat-rate indemnity for recovery costs of forty (40) euros. If the recovery costs are higher than this flat-rate amount, additional compensation shall be due, upon presentation of supporting documents.
In the event of a dispute relating to an invoice, payment of the disputed invoice remains due. If the dispute is accepted, a credit note shall be issued and provided to the Client promptly.
In the event the Client fails to pay all sums due to DYNAMIC SCREEN pursuant to these Terms, DYNAMIC SCREEN may interrupt access to the Services and shall in addition be authorized to terminate this Agreement, as of right, following the sending of a notice to cure by registered letter with acknowledgement of receipt, in accordance with conditions set forth in Article 6 of these Terms.
6. DURATION - WITHDRAWAL - TERMINATION - CONSEQUENCES OF TERMINATION
The agreement takes effect on the date on which the Client registers to use the Solution, and shall be renewed by tacit agreement for successive one (1) month or one (1) year periods, depending on the chosen subscription.
The subscription to the Services shall be automatically renewed under the conditions defined above except in case of notice of termination of the subscription by the Client at least twenty-four (24) hours before the date of anniversary of renewal or notification of termination by DYNAMIC SCREEN in accordance to the conditions defined below.
In the event of termination of the subscription by the Client, subscription shall end at the expiry date of the current subscribed period, without renewal.
As the Client is a professional purchasing within the framework and for the needs of its main and usual professional activity, there is no right of withdrawal.
If the agreement between the Client and DYNAMIC SCREEN is concluded off-site, that it does not enter the principal field of activity of the Client, and if the Client does not employ more than five (5) employees, the Client shall benefit from a fourteen (14) days withdrawal period as from the date of execution of the agreement, which it can use by addressing to DYNAMIC SCREEN a registered mail with acknowledgement of receipt, indicating such withdrawal without ambiguity, the postmark being taken as proof.
6.3.1 Suspension of Services - Termination
18.104.22.168 In the event of a breach by either Party of any of its obligations, the agreement may be terminated at the fault of the defaulting Party.
Thus, in the event that a Party sends to the other notice of termination, by registered letter with acknowledgement of receipt, for failure to comply with one of its obligations under these Terms, the other Party shall have a period of fifteen (15) days from the date of receipt of such notice to definitively remedy to the alleged breach or default. If the breach or default is not definitively remedied within this period and the formal notice remains unsuccessful, the Agreement may be terminated as of right by the first Party, at the other Party’ fault, without prejudice to any damages to which it may be entitled as a result of such breach or default and to any recourse relating to the breach(es) found.
The exercise of this right of termination does not exempt the defaulting Party from fulfilling the obligations entered into until the termination takes effect, without prejudice to any recourse that the other Party may have.
The notice of default shall include a reference to this clause, as well as an indication of the aforementioned time limit within which the defaulting Party must remedy the non-performance or poor performance of its obligation.
22.214.171.124 Notwithstanding the subscribed Services, DYNAMIC SCREEN may suspend the subscription with immediate effect for any legitimate reason and at any time, by simple notification in the event of breach of any provision hereof by the Client or any User, without prejudice to its rights in particular to claim any and all damages.
6.3.2 Termination by the Client
In the event of termination of the subscription by the Client, the subscription shall end on the day of the subscription expiry date and no renewal shall occur.
6.4 Consequences of termination
In the event of termination at the Client's fault, all sums due by the Client to DYNAMIC SCREEN in respect of the use of the Services shall become immediately due. No amounts shall be refundable.
No compensation, indemnification or damages of any kind whatsoever shall be due by either Party to the other Party.
In the event of expiry or termination of this Agreement, the licenses subscribed by the Client shall automatically terminate.
The Client acknowledges that DYNAMIC SCREEN has no obligation of exclusivity. Consequently, DYNAMIC SCREEN shall be able to freely provide Services to other Clients, including competitors of the Client.
8. Availability of the Solution
The Solution is accessible 24 hours a day and 7 days a week, except in the event of an interruption, scheduled or unscheduled, for maintenance purposes or in the event of force majeure as defined by French courts.
DYNAMIC SCREEN shall make its best efforts to inform the Client beforehand of the realization of maintenance operations or updates. The Client waives the right to seek the liability of DYNAMIC SCREEN in relation to the operation and exploitation of the Solution and the Services.
It is understood that DYNAMIC SCREEN is bound by an obligation of means. DYNAMIC SCREEN shall not in consequence be liable for any direct or indirect damage suffered by the Client resulting from the unavailability of the Solution, in whole or in part.
Similarly, DYNAMIC SCREEN's liability shall not be sought in the event of dysfunction, impossibility of access, or bad conditions of use of the Solution attributable to a material or equipment of the Client which is not adapted, to disturbances attributable to the Client's access supplier, to the congestion of the Internet network, and/or for any other reason foreign or external to DYNAMIC SCREEN.
DYNAMIC SCREEN undertakes to have the Solution evolve regularly, so that it remains permanently in conformity with the state of the art and the Client's expectations.
DYNAMIC SCREEN shall make its best efforts in order for the Solution to be accessible continuously.
Thus, in the event of interruption of service and whatever the cause, DYNAMIC SCREEN shall make its best efforts in order for the Solution to be put back into service as soon as possible.
DYNAMIC SCREEN undertakes to take all measures in accordance with the rules of the art to guarantee the computer security of its Services and the Solution, in particular against the risks of intrusion or virus.
DYNAMIC SCREEN reserves the right to interrupt the operation of the Services or to prohibit the access to the Services or to the Solution when the security of the Solution is threatened (security flaw detected, intrusion, data corruption, virus, malware).
DYNAMIC SCREEN may also carry out planned shutdowns of Services, in part or in whole, in particular to carry out maintenance work or updates of the Solution. These shutdowns and maintenance work shall be carried out as far as possible during periods of low activity.
DYNAMIC SCREEN shall make in this case its best efforts, when possible, to notify the Client in advance of any planned shutdown of Services.
DYNAMIC SCREEN undertakes to restore as soon as possible the access to the Services and the Solution.
No credit note, refund or credit in any form whatsoever shall be emitted in the event of a shutdown under the terms of this Article.
9. Protection of Personal Data
Each Party is required to comply with all applicable regulations, including the applicable regulations relating to the use or protection of personal data (the "Applicable Regulations"), and in particular, on the date hereof, the provisions of Regulation 2016/679 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 (the "GDPR" Regulation) and the French Computer and Freedoms law of 6 January 1978 as amended (the "LIL").
In the context of the performance of the Services, DYNAMICSCREEN shall act solely on the Client's instructions under the Application Regulations. DYNAMICSCREEN shall act as processor and the Client as controller. In this respect, DYNAMICSCREEN undertakes not to use the Personal Data for its own account or for that of a third party.
Parties therefore agree to execute a Data Protection Agreement (the “DPA”). The DPA shall be considered as forming one and only agreement with this agreement, and in the event of a breach of the DPA, the aggrieved Party shall have the right to terminate the agreement under the present Terms in accordance with the terms and conditions defined herein.
10. Intellectual property
10.1 Intellectual property of DYNAMIC SCREEN
The COMEEN Solution, as well as all interfaces and applications developed by DYNAMIC SCREEN to access COMEEN services, available and future, on all present and future operating systems and solutions, as well as all elements relating to the DYNAMIC SCREEN and/or COMEEN brand, including all present and future registrations, logos, drawings, images, photographs, illustrations and all other elements and associated rights remain the exclusive property of DYNAMIC SCREEN.
No provision of the present Terms may be construed as granting the Client or its Users the right to use the name of DYNAMIC SCREEN, nor the trademarks, logos, domain names and other distinctive attributes of the DYNAMIC SCREEN brand. All right, title and interest relating to the Services and/or DYNAMIC SCREEN is and shall remain the exclusive property of DYNAMIC SCREEN.
DYNAMIC SCREEN grants the Client a personal, non-transferable and non-exclusive license authorizing access and use of the Solution by the Client and its authorized Users exclusively within the framework of the use of the Services according to the terms and conditions of the present document.
The content and data (other than the content and Client Data) included or which can be accessed on and/or through the Solution, in particular any text, graphic, logo, name, brand, designation, tab, functionality, image, sound, data, photograph, graphic, and any other material or software remains the exclusive property of DYNAMIC SCREEN. It is protected by intellectual property law and is subject to applicable laws and regulations.
These elements must in no case be downloaded, copied, altered, modified, deleted, distributed, transmitted, broadcast, sold, rented, conceded or exploited (in whole or in part) in any way whatsoever, without the express written agreement of DYNAMIC SCREEN. The Client agrees not to use or exploit these elements for purposes other than those defined in these Terms. Furthermore, except in the case of mandatory legal provisions, the Client is not authorized to modify, improve, edit, translate, decompile, disassemble or create one or more derivative work(s) from the DYNAMIC SCREEN Solution (in whole or in part).
The Client guarantees and ensures compliance of the present terms and conditions by its Users.
10.2 Intellectual Property warranties
DYNAMIC SCREEN declares that it holds all rights of intellectual property relating to the Solution.
DYNAMIC SCREEN warrants in particular:
- that the Solution does not constitute a counterfeit of a pre-existing work;
- that it has respected and shall respect the intellectual property rights of third parties, in particular copyright, right on designs and models, patents and trademarks.
As such, DYNAMIC SCREEN guarantees the Client against any action, complaint, claim or opposition on behalf of any person invoking an intellectual property right or an act of unfair and/or parasitic competition, to which the execution of the present contract would have infringed.
On its side, the Client undertakes to immediately inform DYNAMIC SCREEN of any act of counterfeit of the Solution of which it would have the knowledge of, DYNAMIC SCREEN being then free to take the measures which it shall deem appropriate.
11. Client Data
DYNAMIC SCREEN is committed to taking all measures in conformity with the state of the art to guarantee the integrity of the Client Data, with the proceeding in particular of regular backups of said data.
The Client may at any time save its data in accordance with the modalities of the Solution and remains solely responsible for backing up its data.
The Client is the sole holder of the rights to its data processed in relation to the Services.
The Client grants, insofar as required, to DYNAMIC SCREEN and its subcontractors, a non-exclusive and worldwide, free and non-transferable license granting it to host, cache, copy and display the aforementioned Client Data for the sole purpose of the execution of the Services and exclusively in association or on the occasion of the Services.
This license shall automatically cease upon termination of the contractual relationship between the Parties, unless it is necessary to continue hosting and processing Client Data.
The Client declares and guarantees that it holds all the authorisations necessary to the exploitation of its Client Data within the framework of the Services and that it can freely grant license of it in the terms above to DYNAMIC SCREEN and its subcontractors.
The Client moreover declares and guarantees that by using its Client Data in relation to the use of the Services, it does not exceed any right which would have been granted to it, in whole or part, of its Data and that it does not breach the rights of any third parties.
The Client is solely responsible for the communication and use of Data by its Users in connection with the Services. It is also solely responsible for the collection and processing of its Users' Personal Data in accordance with the Applicable Regulations (as defined in Article 9 hereof). It is the sole responsibility of the Client to comply with the applicable legal and regulatory provisions, and in particular the Applicable Regulations, and to obtain any prior authorizations
The Client undertakes to compensate DYNAMIC SCREEN for all pecuniary consequences that DYNAMIC SCREEN may have to bear following breach by the Client with regard to the guarantees defined above concerning its Client Data.
The Client shall ensure that it does not provide, use or communicate, when using the Services, Client Data which would require that DYNAMIC SCREEN complies with laws or specific regulations other than those expressly defined in the present Terms.
Access to the Client Data is solely reserved to the Client and its Users.
However, for the only needs related to the Services, DYNAMIC SCREEN may also be able to access such. The duration of conservation of such data by DYNAMIC SCREEN shall not be able to exceed the duration of legal conservation.
The Client is informed and accepts that DYNAMIC SCREEN may access its Client Data and disclose it upon request by an administrative or judicial authority entitled to access the Client Data, and this in compliance with the applicable regulations.
Unless the aforesaid requisition prevents it, DYNAMIC SCREEN shall inform the Client without delay of the existence of the requisition and of the Client Data which has been disclosed.
The Client is solely responsible for the creation, selection, design and use of the Client Data by the Users within the framework of the Services. It is also solely responsible for the collection and processing of Personal Data by its Users in application of the regulations applicable to the protection of personal data. It is the sole responsibility of the Client to comply with the applicable legal and regulatory provisions, and in particular the regulations applicable to the protection of personal data, and to obtain any prior authorisations.
The Client acknowledges that DYNAMIC SCREEN has no control over the transfer of the Client Data via the public telecommunication networks used by the Client and the Users to access the Services and in particular the Internet network. The Client acknowledges and accepts that DYNAMIC SCREEN cannot guarantee the confidentiality of the Client Data during the transfer of these on the said public networks. Consequently, DYNAMIC SCREEN shall under no event see its responsibility engaged in the event, in particular, of diversion, capture, corruption of the Client Data, or any other event likely to affect those, occurring at the time of their transfer on the public telecommunication networks.
Finally, it is understood to avoid all doubt that DYNAMIC SCREEN may aggregate raw, statistical and anonymized data relating to the reports and audits generated, for their public communication and/or to third parties and all other users of its solutions, software and services, according to the applicable terms and conditions.
12.1 DYNAMIC SCREEN’s liability
DYNAMIC SCREEN declines all responsibility in relation to the results drawn from the use of the Solution, the Services, and more generally of the DYNAMIC SCREEN Solution by the Client and the Users.
The Solution being a standard software designed to satisfy the greatest number of Clients, DYNAMIC SCREEN cannot guarantee its adaptation to the specific needs of the Client.
For the avoidance of doubt, DYNAMIC SCREEN makes no other express or implied warranty with respect to the Services, including, in particular, any implied warranty of quality or suitability of the Solution for a particular purpose. DYNAMIC SCREEN does not guarantee the results of the Services. DYNAMIC SCREEN does not guarantee that the functionalities of the Services shall meet the Client's requirements. The Parties acknowledge that software may contain errors and that not all errors are economically rectifiable or that it is not always necessary to correct them. Consequently, DYNAMIC SCREEN does not guarantee that all failures or errors of the Solution shall be corrected.
DYNAMIC SCREEN cannot be held responsible towards the Client for any damage, direct or indirect suffered by the Client and/or the Users, which may result directly or indirectly from the use of the Services and the DYNAMIC SCREEN Solution, and the Client holds DYNAMIC SCREEN free of any claim in the event in particular of damage undergone by the Users or the Client in relation to the use of the Services, of loss of opportunities or revenue related to the operation or the absence of operation of the DYNAMIC SCREEN Solution.
DYNAMIC SCREEN declines moreover any responsibility with regard to the Client concerning the use of the Services.
Being subject to a best efforts obligation, DYNAMIC SCREEN shall not be held liable for any direct or indirect damage undergone by the Client and resulting from an unavailability of the DYNAMIC SCREEN Solution, in particular of the losses of data (including of copies or recordings) that the Client or any User could undergo, or of the loss of turnover.
DYNAMIC SCREEN shall not in any way be held liable for the possible harmful consequences which could occur due to the use of the Client Data provided by the Client and its Users.
DYNAMIC SCREEN shall not be responsible to remedy the damages related to fault or negligence by the Client, the Users or third parties in relation with the use of the Services.
Under no circumstances, DYNAMIC SCREEN shall be held liable and compensate for immaterial or indirect damage such as (on a non-limitative basis): operating losses, loss of profit, loss of chance, commercial damage, loss of revenue.
In any event, the possible financial liability of DYNAMIC SCREEN and the sums which would be due, if it were to be determined, could not exceed the sums paid by the Client for the specific Services having motivated the responsibility of DYNAMIC SCREEN, and such being subject to the payment by the Client of all the due invoices. DYNAMIC SCREEN shall not be liable for breakdowns or damage resulting from the contamination of the computer system of the Client by viruses, attacks and malicious acts by third parties.
12.2 Client's liability
The Client guarantees and ensures compliance to the Terms by all of its Users.
By providing any Client Data on the Solution, directly or through its Users, the Client is required to comply with the legal and regulatory provisions in force and with the provisions herein.
The Client is solely responsible for the Client Data and is responsible for deleting any litigious content.
Without prejudice to the foregoing, in the event of any abuse or violation of the present, DYNAMIC SCREEN reserves the right to implement any useful action with regard to any Client and/or User if necessary in order to preserve its rights.
12.3 Use of the Services
The Client undertakes:
not to circumvent the security features of the Solution and Services;
not to disrupt the operation of the Solution and Services or impose a disproportionate burden on them (e.g. spam, denial of service attacks, viruses, game algorithms); and/or not to publish data in any form whatsoever that contains viruses or any other dangerous code;
not to reverse engineer, decompile, disassemble, decipher or generally attempt to obtain the source code of the Solution or any related technology, or any part thereof, except as required by law;
not manipulate identifiers to conceal the origin of any use of data transmitted through the Services;
not to use any technique to simulate the appearance or functioning of the Solution;
not to use any software, devices, manual or automated coding robots or other means to access, "decompose", "analyze" or "index" the Services or any related data or information.
The Client is required to report any abuse that it may observe on the Solution by:
communicating, as soon as it becomes aware of it, any information relating to information or data presumed to be contrary to the legal provisions in force or in breach of the Terms, by e-mail by registered post with acknowledgement of receipt to the address indicated in Article 17 hereof;
informing DYNAMIC SCREEN of any complaint or action of a third party, in the same forms;
responding promptly to any request for information from DYNAMIC SCREEN.
The Client guarantees and ensures compliance to these obligations by all its Users.
Client shall ensure that the storage and the diffusion of the Client Data through the Solution respects the following rules:
that it does not act or that its Users do not act in a dishonest or illegal way, by providing inappropriate, receptive or reprehensive data. The Client acknowledges that any publication of Client Data is likely to engage its liability to third parties;
the Client or its Users do not violate any mandatory rules of confidentiality, in particular those related to their sector of activity or with regard to the confidentiality undertakings that they may have entered into with their suppliers and/or clients, it being their responsibility to take the relevant measures with regard to the latter;
the Client or its Users do not transfer and do not render the Services available to a third party;
the Client or its Users do not provide any service using the Services of DYNAMIC SCREEN without the prior written agreement of DYNAMIC SCREEN.
The Client and its Users make sure that the storage and diffusion of the Client Data transmitted on the Solution and objects of the Services do not constitute:
a breach of the rights of third parties; and/or
be harmful to individuals or infringe their privacy rights; and/or
be harmful to public order or constitute a breach to morality.
Parties both undertake to comply to a general obligation of confidentiality concerning all oral or written confidential information, whatever it may be and whatever the medium, exchanged in the context of the preparation and performance of the Services, except for information that is generally known to the public or that be shall have been known otherwise than through the fault or fault of the Client or Users.
Consequently, the Parties undertake to:
to keep all confidential information strictly secret, and in particular to never disclose or communicate, in any way whatsoever, directly or indirectly, all or part of the confidential information, to anyone, without the express prior written permission of the other party;
not to use all or part of the confidential information for any purpose or activity other than the execution of the Services;
not to make any copy or imitation of all or part of the confidential information without the prior written permission of the other Party;
any information of a confidential nature shall only be communicated to a third party with the prior and express written consent of the issuing Party, except in the case of a mandatory request from a competent public authority pursuant to a legislative or regulatory text.
The Parties shall ensure that this confidentiality undertaking is respected by all their employees, managers and directors.
This confidentiality undertaking shall remain in force after the expiry or termination for any reason whatsoever of the Parties' contractual relations for a period of three (3) years.
In any event, this confidentiality obligation does not bind the Parties insofar as the confidential information:
is generally accessible to the public, as well as that which becomes accessible to the public, other than as a result of a violation of this Article;
is obtained from third parties which are not under an obligation of confidentiality in respect of that information;
is or has been independently developed by the Party receiving the information or was known by that Party prior to its receipt.
However, each Party shall be entitled to disclose any confidential information to its insurers, auditors or lawyers, administrative or judicial authorities, upon production of the decision of the authorities concerned or when required by law.
In addition, and subject to the provisions above, DYNAMIC SCREEN is authorized by the Client hereunder to disclose the provision of the Services as a reference to its clients and potential clients and to use the distinctive signs (trademark, logo) of the Client for this purpose.
14. Evolution of the Services - Modifications of the Terms
The Services and the present Terms are subject to evolution. DYNAMIC SCREEN may propose additional services in the future which shall be able to be integrated into the DYNAMIC SCREEN Solution, and which may be subject to distinct, additional and/or supplementary terms and conditions.
DYNAMIC SCREEN may modify the present Terms and all other terms and conditions or policies relating to the use of the DYNAMIC SCREEN Solution.
In the event DYNAMIC SCREEN should bring substantial modifications to the present Terms, the Client and the Users shall be informed beforehand, and in any event at least 15 days before modifications affecting the rights or obligations of any party hereto are brought to them, and this via the Solution, or by any other means, to give the Client the opportunity to examine the modifications before they take effect.
In the event of refusal to agree to the Terms, the Client may terminate its subscription in accordance with the terms of Article 6.
The present Terms may be available in several languages. In such a case, in case of conflict or contradiction between the stipulations of the different versions of the present Terms, the English version shall prevail.
16. Proof, reservation and archiving
Computerized registers stored in DYNAMIC SCREEN’s systems, which comply with the regulations regarding security, will be considered as proof of communication, such as emails, subscription forms, downloaded videos and comments posted. Subscription forms storage is carried out on a support whose nature guarantees the truth and sustainability required by the legal provisions in force. It is agreed that in case of divergence between DYNAMIC SCREEN’s computerized registers and the documents under paper or electronic form owned by the Client, only DYNAMIC SCREEN’s computerized registers shall be considered.
17. Consequences relating to force majeure
Any delays in or failure of performance by either Party under these Terms shall not be considered as a breach thereof if such delay or failure is caused by a condition of force majeure beyond the reasonable control of the Party affected.
Force majeure shall designate acts of government, acts of god, war declaration by Government and national state of emergency, epidemics and pandemics, terrorism, riots or strikes, of which the effect would be prohibiting or impeding any Party from performing its respective obligations under these Terms, and which are unforeseeable and unavoidable.
The foregoing shall not be considered a waiver of either Party's obligations under these Terms; and as soon as such force majeure condition shall cease, the Party whose performance is affected thereby shall promptly fulfil its obligations in connection with these Terms.
Notwithstanding the foregoing, If the case of force majeure, or the delay caused by this event extends beyond a period of thirty (30) days, the contractual relations between the Parties and the Parties' obligations shall automatically and immediately cease by sending a registered letter with acknowledgement of receipt for this purpose, unless otherwise agreed between the Parties.
18. Contact DYNAMIC SCREEN
For any question concerning these Terms, DYNAMIC SCREEN may be contacted by the means described below.
By e-mail at the address email@example.com.
By registered mail with acknowledgement of receipt addressed to:
48 Rue Thiac
19. Applicable law and jurisdiction
The present Terms are governed by French Law.
In case of dispute regarding the execution, performance, interpretation or termination of the present Terms, the Parties shall, in good faith, endeavour to resolve such dispute amicably.
In the event Parties fail to reach an amicable solution, the competent courts of Paris shall have exclusive jurisdiction.