General Terms of Use Eventtia
This contract (the “Contract”) is hereby formed between Eventtia Inc. (“Eventtia”), a company incorporated in the United States of America whose registered address is 12609 53rd Road North West Palm Beach, FL 33411, USA, and the legal entity whose identifying data is shown in the Quote that is appended to this Contract (the “Client”) (individually a “Party” and collectively the “Parties”).
1. Definitions
The Contract comprises the following documents in decreasing order of priority:
These general terms and conditions:
The Quote, as accepted by the Client.
The documents listed above constitute the entire compact between the Parties in relation to the subject-matter of the Contract and replace and cancel any prior declarations, negotiations, commitments, verbal or written correspondence, arrangements and agreements between the Parties concerning the same subject-matter. The Contract shall prevail over any other document, including the Client’s general terms and conditions governing purchases.
These general terms and conditions:
The Quote, as accepted by the Client.
The documents listed above constitute the entire compact between the Parties in relation to the subject-matter of the Contract and replace and cancel any prior declarations, negotiations, commitments, verbal or written correspondence, arrangements and agreements between the Parties concerning the same subject-matter. The Contract shall prevail over any other document, including the Client’s general terms and conditions governing purchases.
2. Definitions
“Application” shall mean the event management platform in SAAS mode (software as a service) developed by Eventtia and made available to the Client and its authorised users under this Contract, whose functionalities and options are detailed exclusively in the Quote.
“Quote” shall mean any offer or commercial proposal issued by Eventtia to the Client, in writing or in electronic format, setting out the functional scope of the Application as well as a description of the Business Services on offer to the Client, where applicable. The Client’s acceptance of a Quote shall constitute a binding commitment.
“Client’s Data” shall mean all of the data and information provided, keyed in, processed or stored by the Client and the Client’s authorised users while using the Application, including the personal data of the users and the data subjects whose data is processed by the Client. The Client’s Data shall also comprise the information that the Client shall transmit to Eventtia for integration into the Application as part of the provision of the Business Services.
“Start Date” shall mean the date stipulated within the Quote, or in the absence of any indication, the date of acceptance of the Quote by the Client.
“Documentation” shall mean all the configuration/settings and usage instructions of the Application that Eventtia shall disclose in writing to the Client. “Deliverables” shall mean all the deliverables that Eventtia shall provide to the Client as part of the Business Services; these may include specific developments.
“Prerequisites” shall mean the prerequisites that the Client must comply with under the Contract, such as the preliminary information that the Client must disclose to Eventtia, as stipulated by Eventtia in the course of the performance of the Contract.
“Business Services” shall mean all of the services that Eventtia may provide to the Client in addition to the basic provision of the Application, such as configuration of the Application, training and IT development services, as listed in the Quote.
“Quote” shall mean any offer or commercial proposal issued by Eventtia to the Client, in writing or in electronic format, setting out the functional scope of the Application as well as a description of the Business Services on offer to the Client, where applicable. The Client’s acceptance of a Quote shall constitute a binding commitment.
“Client’s Data” shall mean all of the data and information provided, keyed in, processed or stored by the Client and the Client’s authorised users while using the Application, including the personal data of the users and the data subjects whose data is processed by the Client. The Client’s Data shall also comprise the information that the Client shall transmit to Eventtia for integration into the Application as part of the provision of the Business Services.
“Start Date” shall mean the date stipulated within the Quote, or in the absence of any indication, the date of acceptance of the Quote by the Client.
“Documentation” shall mean all the configuration/settings and usage instructions of the Application that Eventtia shall disclose in writing to the Client. “Deliverables” shall mean all the deliverables that Eventtia shall provide to the Client as part of the Business Services; these may include specific developments.
“Prerequisites” shall mean the prerequisites that the Client must comply with under the Contract, such as the preliminary information that the Client must disclose to Eventtia, as stipulated by Eventtia in the course of the performance of the Contract.
“Business Services” shall mean all of the services that Eventtia may provide to the Client in addition to the basic provision of the Application, such as configuration of the Application, training and IT development services, as listed in the Quote.
3. The right to use the Application.
Eventtia hereby grants the Client and its authorised users, as of the Start Date and throughout the duration of this Contract, on a non-exclusive and non-transferable basis, a right to use the Application and any Deliverables created as part of the Business Services for their own personal purposes, in keeping with the Documentation and subject to strict compliance with the functional and usage scope stated in the Quote. Save within the limits that are expressly stipulated elsewhere in this Contract, the Client undertakes not to (a) modify, adapt or translate the Application nor to create any derivative computer program, (b) not to grant sublicenses, lend, lease, or transfer the Application or the rights granted to it, in any way whatsoever, to a third party, unless this third party is an Authorised User. The Client also acknowledges that Eventtia alone shall be entitled to correct any errors in the Application.
4. Access to the Application.
The Client or any authorised user may access the Application from any computer and/or mobile terminal, using the identifiers chosen by the user or provided by Eventtia. The Client must immediately inform Eventtia about any unauthorised use of its identifiers. Eventtia hereby disclaims liability for any loss or damage resulting from the Client’s failure to adequately protect its connection identifiers and/or its Data. The Client hereby also stands surety for the authorised users’ compliance with the General Terms of Use of the Application and of the Documentation.
5. The Business Services.
Once the Client shall have placed an order with Eventtia and subject to the Client’s compliance with the Prerequisites that Eventtia shall have notified to the Client, Eventtia shall provide the Business Services in accordance with the terms mentioned in the corresponding Quote. Depending on the Client’s stated requirements, Eventtia undertakes to contribute all its expertise and all the care and attention required to perform the tasks that are incumbent upon it. Eventtia shall allocate all the resources and the means that are needed to that end. As part of the provision of the Business Services, the Client must (i) provide any assistance that Eventtia may require in light of the definition of the Client’s requirements, (ii) disclose to Eventtia all of the information that is relevant to the performance of the Business Services, and (iii) cooperate fully with Eventtia as part of the provision of the Business Services. Although Eventtia shall do everything in its power to meet the deadlines that are allotted to it for the provision of the Business Services and the supply of the related Deliverables, this obligation shall be conditional upon the Client’s performance of its own obligations.
6. Support/Maintenance.
In case of a malfunction of the Application, Eventtia shall do everything in its power to implement a remedial or mitigation solution within a reasonable timescale following receipt of a notification from the Client sent to the Support Team of Eventtia. The Client acknowledges and agrees that Eventtia alone shall be entitled to correct any faults in the Application by the automatic installation of upgrades. The Client is hereby informed that malfunctions that do not prevent a normal use of the Application may not necessarily be corrected. The maintenance mentioned in this Contract shall only apply to remedial and preventive maintenance services. As part of the updating and upgrading of the Application, Eventtia may deploy upgrades, modifications or enhancements to the solution automatically at its sole discretion or in accordance with provisions stipulated in a written rider or a Quote approved by the Parties and drawn up as a rider to this Contract. Moreover, Eventtia shall not have any maintenance obligation should the Client fail to comply with the instructions in the Documentation or with the Prerequisites.
7. Financial terms and conditions
7.1 Fees. The Client undertakes to pay the fixed, periodical fees mentioned in the Quote. The Client shall be bound by the Quote once it shall have accepted it. The prices shall be quoted before tax.
7.2 Terms of payment. All the moneys due in connection with this Contract must be paid on the instalment dates stipulated in the Quote within fifteen (15) days following the date on which the invoice is received. Any payment default or late payment relative to the due date of the invoice shall result in the immediate levying of penalties for lateness at a rate corresponding to the refinancing rate of the European Central Bank plus seven (7) points as well as the charging of fixed compensation for debt recovery costs amounting to forty (40) euros in accordance with article D. 441-5 of France’s Commercial Code, notwithstanding any other remedies available to Eventtia.
7.3 Should the Client be late in paying any moneys that it owes to Eventtia, then notwithstanding Eventtia’s other rights and remedies, (i) it may request immediate payment of all other moneys owed to it by the Client, and/or (ii) if the payment is late by more than 15 days, Eventtia shall be entitled to suspend the Client’s access to the Application or the performance of the Business Services, without any formality apart from the sending of a written notification, until full payment of the moneys that are due to it.
7.2 Terms of payment. All the moneys due in connection with this Contract must be paid on the instalment dates stipulated in the Quote within fifteen (15) days following the date on which the invoice is received. Any payment default or late payment relative to the due date of the invoice shall result in the immediate levying of penalties for lateness at a rate corresponding to the refinancing rate of the European Central Bank plus seven (7) points as well as the charging of fixed compensation for debt recovery costs amounting to forty (40) euros in accordance with article D. 441-5 of France’s Commercial Code, notwithstanding any other remedies available to Eventtia.
7.3 Should the Client be late in paying any moneys that it owes to Eventtia, then notwithstanding Eventtia’s other rights and remedies, (i) it may request immediate payment of all other moneys owed to it by the Client, and/or (ii) if the payment is late by more than 15 days, Eventtia shall be entitled to suspend the Client’s access to the Application or the performance of the Business Services, without any formality apart from the sending of a written notification, until full payment of the moneys that are due to it.
8. Warranties
8.1 Eventtia’s warranties. Eventtia guarantees that the Application shall be made available to the Client in accordance with the terms that are stipulated in the Quote, specifically regarding the functional scope of the Application. Eventtia also guarantees that it shall perform the Contract with all due care and attention and shall deploy the requisite means and resources to do so in light of the specifications agreed between the Parties. However, although Eventtia undertakes to make every reasonable effort to ensure that the Application operates to a large extent in accordance with the terms of the Quote and of the Documentation, it cannot guarantee this. Eventtia does not therefore warrant that the Application shall be free of anomalies or shall operate without interruption.
8.2 The Client’s warranties. The Client shall be fully liable towards Eventtia and undertakes to compensate it for any damage and/or economic loss connected with any action brought against Eventtia owing to the Client’s Data’s non-compliance with the prevailing regulations, and in particular its unlawfulness or its infringement of the rights of third parties or any failure to comply with any rules governing the Client’s use of the Application. The Client shall be fully liable to its users and to any persons taking part in the events managed via the Application for the configuration and the operation of the Application; Eventtia hereby disclaims any liability in this respect. The Client moreover declares that it has all the legal authorisations enabling it to use the Application and all the licenses enabling the Application and Eventtia to use and/or to interact with software systems and software applications belonging to third party publishers. Finally, although the Client’s Data shall be hosted by Eventtia within the Application, the Client shall be responsible for backing up its Data.
8.2 The Client’s warranties. The Client shall be fully liable towards Eventtia and undertakes to compensate it for any damage and/or economic loss connected with any action brought against Eventtia owing to the Client’s Data’s non-compliance with the prevailing regulations, and in particular its unlawfulness or its infringement of the rights of third parties or any failure to comply with any rules governing the Client’s use of the Application. The Client shall be fully liable to its users and to any persons taking part in the events managed via the Application for the configuration and the operation of the Application; Eventtia hereby disclaims any liability in this respect. The Client moreover declares that it has all the legal authorisations enabling it to use the Application and all the licenses enabling the Application and Eventtia to use and/or to interact with software systems and software applications belonging to third party publishers. Finally, although the Client’s Data shall be hosted by Eventtia within the Application, the Client shall be responsible for backing up its Data.
9. Liability
9.1. Eventtia shall only be liable for any damage if it is the sole cause of the damage and it is shown that it was at fault. Eventtia hereby disclaims liability for any tasks or supplies for which the Client or any third party is responsible. As a mere technical service provider and provider of an application platform, Eventtia hereby disclaims liability under any circumstance for any damage linked to the organisation or the staging of the Client’s events that are organised via the Application. Eventtia also disclaims liability for any damage caused by the Client’s failure to comply with the Prerequisites and/or the Documentation disclosed by Eventtia. Whatever the grounds for the claim, the liability of Eventtia for any damage, including for any replacement, correction, reimbursement or discounting of the price, or specific performance that may be requested by the Client and/or ordered by any authority with jurisdiction, shall be limited, for all instances of damage, to the moneys before tax taken by Eventtia under the Quote involved in connection with the year in which the event that gave rise to its liability occurred. Given that this limit shall apply to all heads of damage, it shall be subject to deduction of any sum linked to prior causal events. The Client shall have up to one (1) year as of becoming aware of such a violation to invoke Eventtia’s liability.
9.2 Eventtia shall not be liable for any indirect damage and loss of earnings, such as loss of contracts or of clients, loss of operations, service downtime linked to the use of the Application, financial losses linked to the time spent with a view to making up for the witnessed breach, damage to a person’s corporate image, loss or corruption of data and/or files. Any loss or damage incurred by a third party shall be considered as indirect damage. Any damage caused during the organisation and/or holding of the Client’s events shall also be deemed to constitute indirect damage. Eventtia hereby disclaims liability for any breach of its obligations arising from force majeure or from an event beyond its control, such as breakdowns of IT or electrical facilities, incidents or failures of the telecommunications networks. The performance of the Contract being based on the use of Internet network, the Client acknowledges that Eventtia cannot guarantee (i) the proper operation of the Internet nor therefore the lack of breakdowns or deterioration of the services provided via the Internet, (ii) the lack of any risk of intrusions, data misappropriations and contamination by computer viruses. Whereas Eventtia does its best to ensure the permanent availability of the Application without any serious discontinuity, it hereby disclaims liability for any unavailability of the Application linked to malfunctions of the Internet network or maintenance operations.
9.2 Eventtia shall not be liable for any indirect damage and loss of earnings, such as loss of contracts or of clients, loss of operations, service downtime linked to the use of the Application, financial losses linked to the time spent with a view to making up for the witnessed breach, damage to a person’s corporate image, loss or corruption of data and/or files. Any loss or damage incurred by a third party shall be considered as indirect damage. Any damage caused during the organisation and/or holding of the Client’s events shall also be deemed to constitute indirect damage. Eventtia hereby disclaims liability for any breach of its obligations arising from force majeure or from an event beyond its control, such as breakdowns of IT or electrical facilities, incidents or failures of the telecommunications networks. The performance of the Contract being based on the use of Internet network, the Client acknowledges that Eventtia cannot guarantee (i) the proper operation of the Internet nor therefore the lack of breakdowns or deterioration of the services provided via the Internet, (ii) the lack of any risk of intrusions, data misappropriations and contamination by computer viruses. Whereas Eventtia does its best to ensure the permanent availability of the Application without any serious discontinuity, it hereby disclaims liability for any unavailability of the Application linked to malfunctions of the Internet network or maintenance operations.
10. Confidentiality
10.1 The Parties undertake to treat as strictly confidential all the information of a commercial, financial or technical kind relating to the other Party, whatever medium it is affixed to or conveyed on, that they are made privy to or that comes to their attention in the course of the performance of the Contract. Any information that is already in the public domain shall be deemed to be non-confidential. The Parties each undertake not to disclose or to allow others to disclose the confidential information of the other Party, wholly or partly, directly or through one or more intermediaries, to any third party whatsoever, with the exception of their employees and/or subcontractors who need to know this information in order to perform their obligations. Each Party undertakes to return to the other Party any and all documents or other media containing that Party’s confidential information, subject to the full and proper performance of the latter’s obligations.
10.2 Reference. Eventtia shall be entitled to use the distinctive signs of the Client as a business reference in its communication, advertising or promotional media.
10.2 Reference. Eventtia shall be entitled to use the distinctive signs of the Client as a business reference in its communication, advertising or promotional media.
11. Intellectual property / Infringement
The Application, as well as the software applications and programs, trademarks, drawings and models, images, texts, photographs, logos, graphic design, databases, sounds, videos, domain names, designs and all other content that Eventtia shall make available to the Client, are the exclusive property of Eventtia and are protected by copyright, trademark law and any other intellectual property rights that are applicable. Eventtia shall defend the Client at its own expense against any court action brought by a third party against it based on alleged infringements of that third party’s intellectual property rights by the Application, and undertakes to bear any awards made against the Client as part of a court ruling that is final and cannot be appealed or as part of a settlement reached and approved beforehand by Eventtia. This warranty shall be subject to the following conditions: (i) the Client must have immediately notified Eventtia in writing about the third party’s complaint, (ii) Eventtia must have exclusive control over the defence of the claim and over any amicable settlement, (iii) the Client must refrain from any acknowledgement of liability, and (iv) it must cooperate actively and in good faith with Eventtia. Should Eventtia consider that the Application might constitute an infringement of the rights of any third parties, the Client, in order to retain the benefit of this warranty, undertakes to strictly comply with the instructions of Eventtia, which might include a temporary or permanent suspension of the operation of the Application. Any warranty against infringements of the rights of third parties shall be excluded where this results from (i) a use of the Application that does not comply with the contractual provisions approved by the Parties, (ii) a
use of the Application in combination with any other product, equipment, software or data not provided by Eventtia, where the infringement of third party rights arises from this combination as opposed to the Application on its own.
12. Duration and rescission
12.1 Duration. The Contract shall come into force on the Start Date and shall last for the duration specified in the Quote.
12.2 Rescission. Should one of the Parties fail to perform any of its significant obligations under the Contract, and this is not set right within fifteen (15) days following its receipt of a summons notifying the breach of contract involved, the Contract shall be rescinded as of right notwithstanding the other rights and remedies of the Party that is not at fault. The Client’s failure to comply with its payment and cooperation obligations shall constitute violations of a significant obligations for the purposes of this contract.
12.3 Effects of rescission. As of the rescission of the Contract, whatever the reason for this, (i) all the moneys owed to Eventtia under the Contract, such as on the grounds of the firm period of commitment stipulated in the Quote, shall be due immediately, and (ii) the Client shall be barred from making any further use of the platform and its services.
12.2 Rescission. Should one of the Parties fail to perform any of its significant obligations under the Contract, and this is not set right within fifteen (15) days following its receipt of a summons notifying the breach of contract involved, the Contract shall be rescinded as of right notwithstanding the other rights and remedies of the Party that is not at fault. The Client’s failure to comply with its payment and cooperation obligations shall constitute violations of a significant obligations for the purposes of this contract.
12.3 Effects of rescission. As of the rescission of the Contract, whatever the reason for this, (i) all the moneys owed to Eventtia under the Contract, such as on the grounds of the firm period of commitment stipulated in the Quote, shall be due immediately, and (ii) the Client shall be barred from making any further use of the platform and its services.
13. Reversibility
In case of rescission of the Contract, whatever the reason for this, Eventtia undertakes to ensure the reversibility of the Client’s Data. Eventtia shall therefore return to the Client all of the Client’s Data, in accordance with restitution terms to be agreed by the Parties, and shall not keep any copy thereof. Any reversibility service in excess of the mere restitution of the Client’s Data, such as skills transfer services, shall have to be accepted by Eventtia and shall be billed in accordance with terms to be agreed by the Parties.
14. Personal data
In order to enable the Client and the users to use the Application and the services provided through the Application, Eventtia shall gather personal data, via its French subsidiary and its service providers, in its capacity as a data processor of the Client, which shall act as the data controller. In keeping with EU Regulation no. 2016/679 of the European Parliament and of the European Council on data protection dated 27 April 2016 (the “GDPR”), the Parties must sign the data processor agreement concerning the processing of personal data that is shown in the appendix of this Contract.
15. General Provisions
15.1 Assignment / subcontracting. The Client shall be barred from transferring or assigning the Contract to a third party, whether free of charge or in return for consideration, without the prior written approval of Eventtia.
15.2 Non-poaching clause. Unless it is otherwise provided and approved by Eventtia, throughout the duration of the Contract and for a period of one year following its termination, the Client undertakes not to solicit or hire any servant or agent of Eventtia, be it directly or through a third party. Should the Client violate this prohibition, it shall have to pay a penalty to Eventtia amounting to the moneys before tax taken by Eventtia in connection with the Quote accepted by the Client.
15.3 Non-waiver. Should either one of the Parties fail to avail itself of a violation by the other Party of any of its obligations under the Contract, this shall not be interpreted as a waiver of the obligation in question.
15.4 Partial invalidity. Should one or more provisions of the Contract be held to be illegal or inapplicable or be considered as such in application of a law, a regulation or a court ruling that has become final and not subject to appeal, they shall be deemed to have been struck out and the other provisions of the Contract shall remain in force.
15.5 Independence of the Parties. The Parties to the Contract are acting as independent enterprises as opposed to agents or partners of one another. Neither Party may claim to third parties that it has the power to represent the other Party.
15.6 Applicable law and settlement of disputes. The Contract shall be governed by French law. Should the Parties fail to reach an amicable settlement, any disputes that might arise between them concerning the validity, the interpretation, the performance or the non-performance, the interruption or the rescission of this Contract, shall be submitted to mediation in keeping with terms to be worked out by the Parties. Should the mediation process fail or should the Parties fail to agree over the organisation of the mediation, exclusive jurisdiction is hereby granted to the Commercial Court of Paris, even in case of multiple defendants or rejoinders, emergency proceedings or protective proceedings. Notwithstanding the foregoing provisions, Eventtia shall be entitled to file any petition for conservatory or emergency measures, such as based on its intellectual property rights or confidential information, before any other court of its choosing that has jurisdiction.
15.2 Non-poaching clause. Unless it is otherwise provided and approved by Eventtia, throughout the duration of the Contract and for a period of one year following its termination, the Client undertakes not to solicit or hire any servant or agent of Eventtia, be it directly or through a third party. Should the Client violate this prohibition, it shall have to pay a penalty to Eventtia amounting to the moneys before tax taken by Eventtia in connection with the Quote accepted by the Client.
15.3 Non-waiver. Should either one of the Parties fail to avail itself of a violation by the other Party of any of its obligations under the Contract, this shall not be interpreted as a waiver of the obligation in question.
15.4 Partial invalidity. Should one or more provisions of the Contract be held to be illegal or inapplicable or be considered as such in application of a law, a regulation or a court ruling that has become final and not subject to appeal, they shall be deemed to have been struck out and the other provisions of the Contract shall remain in force.
15.5 Independence of the Parties. The Parties to the Contract are acting as independent enterprises as opposed to agents or partners of one another. Neither Party may claim to third parties that it has the power to represent the other Party.
15.6 Applicable law and settlement of disputes. The Contract shall be governed by French law. Should the Parties fail to reach an amicable settlement, any disputes that might arise between them concerning the validity, the interpretation, the performance or the non-performance, the interruption or the rescission of this Contract, shall be submitted to mediation in keeping with terms to be worked out by the Parties. Should the mediation process fail or should the Parties fail to agree over the organisation of the mediation, exclusive jurisdiction is hereby granted to the Commercial Court of Paris, even in case of multiple defendants or rejoinders, emergency proceedings or protective proceedings. Notwithstanding the foregoing provisions, Eventtia shall be entitled to file any petition for conservatory or emergency measures, such as based on its intellectual property rights or confidential information, before any other court of its choosing that has jurisdiction.