General Terms and Conditions
Infinite Square is a company specializing in developing software applications for enterprises, which develops turnkey applications and provides consulting and expertise services to its clients in relation to their digital strategy.
Infinite Square developed the inwink product, an all-in-one solution, described in more detail hereinafter (the “Solution”) which is used to organise and manage contents (« Content(s) ») like an event or a community. As the Client wished to benefit from the Solution developed by Infinite Square, Parties entered into discussions for the purpose of entering into this agreement (hereinafter the “Agreement”) composed of these general terms and conditions pursuant to which Infinite Square undertakes to grant the rights over the Solution and provide the associated services described hereinafter to the Client (hereinafter the “General Terms and Conditions”) and the business proposal agreed by the Client (hereinafter the “Business Proposal”).
- Contractual Documents
The contractual relationship between the Parties is governed by the following documents listed in decreasing order of precedence: − The Business Proposal; − The General Terms and Conditions, including Appendices 1 and 2 and any amendments thereto. In the event of discrepancy between one or more provisions laid down in any of the foregoing documents, the higher ranked document shall prevail. The Agreement constitutes the entire agreement between the Parties and supersedes any other prior written or verbal agreement between the Parties.
- Infinite Square Offers
The services may be provided by Infinite Square in the scope of either of the following offers, ordered by the Client:
- Content-based Subscription (event or community)
- Unlimited Subscription (the “Offers”).
By ordering an Offer, the Client accepts the terms and conditions of the relevant Offer, which are described in more detail in the Business Proposal. The Parties agree to draw up and conclude the Business Proposal for each Offer or each Service ordered by the Client before Infinite Square starts to perform the services.
3.1 Term of the General Terms and Conditions
The General Terms and Conditions shall come into force on the occurrence of the first of the following dates: (i) the effective use of the Solution and/or the Services by the Client; or (ii) the signing date hereof, for a period running until the expiry date and/or the termination of the last Business Proposal in force.
3.2 Term of the Business Proposals
If the Client signs up for an Content-based Subscription, the Business Proposal shall come into force on the date of its signature by the last of the Parties for the duration indicated therein. If, on the expiry date, the services covered by the Business Proposal have not been completed, Parties may agree to pursue performance of the Agreement for a term and subject to financial terms and conditions agreed in writing by mutual consent. If the Client signs up for an Unlimited Subscription, the Business Proposal shall come into force on the date of its signature by the last of the Parties for a fixed term of one (1) year, unless expressly stated otherwise in this Business Proposal.
- Description of the Solution
The Solution is comprised of a SaaS platform made available to the Client (the “Platform”) and web and mobile applications made available to the Client’s Users (the “Applications”). The Client’s “Users” shall mean the Client’s participants, members, exhibitors, contributors and service providers involved in the Content.
- Description of the Services
The services assigned to Infinite Square by the Client are identified and described in this Article and the applicable Business Proposal (hereinafter the “Services”).
5.1 Availability of the Solution
Infinite Square shall grant the Client the right to access the Platform via SaaS mode in accordance with the terms and conditions laid down in this Agreement, in particular in Article 8.3 of the General Terms and Conditions. Infinite Square shall also make available the Applications to the Client and its Users throughout the entire term stipulated in the Business Proposal, in accordance with the more detailed terms and conditions laid down in Article 8.4 of the General Terms and Conditions. It is agreed that Infinite Square reserves the right to modify the Solution, at its sole discretion, in order to improve the Services. Infinite Square also reserves the right to carry out any update it deems necessary. Throughout the term of the applicable Business Proposal, Infinite Square shall not remove any essential functionality of the Solution, except if an urgent removal is deemed necessary for security reasons or in order to comply with applicable laws.
5.2 Associated Services
In the scope of this Agreement, Infinite Square may provide configuration services for the Solution.
5.2.2 Maintenance and Support
Infinite Square shall carry out the maintenance of the Solution and provide the support services in accordance with the more detailed terms and conditions laid down in Appendix 1 of the General Terms and Conditions “Service Levels”.
5.3 Additional Services
“Additional Services” shall mean any service which does not fall in the scope of the Associated Services and which may be provided by Infinite Square at the Client’s request, including in particular Solution’s setup, consulting, training or development services. If the Client wishes to benefit from Additional Services, Parties agree to enter into a separate services agreement from this Agreement.
- Obligations of the Parties
6.1 Obligations of Infinite Square
Infinite Square undertakes to perform the Services in accordance with industry standards and the terms and conditions laid down herein in compliance with the service levels defined in Appendix 1 of these General Terms and Conditions (the “Service Levels”).
6.2 Obligations of the Client
6.2.1 General Obligations
Client undertakes to loyally and actively collaborate with Infinite Square, including in particular by disclosing to it and/or enabling it to access information, documents and any other element required for the performance of the Services. The provision of the Services by Infinite Square depends on the Client’s cooperation, in due time and as fully as possible and on the accuracy and exhaustiveness of all information provided by the Client. Moreover, Client undertakes to pay the price of the Services to the Service Provider in accordance with the terms, conditions and deadlines laid down in this Agreement. The devices, hardware, software, information materials which the Client uses and/or provides in the scope of performance of the Services must comply with all prerequisites notified by Infinite Square. In any event, Client undertakes to comply with the specifications notified to it by Infinite Square throughout the term of the Agreement.
6.2.2 Obligations relating to the use of the Solution
Client undertakes to comply with and ensure that the authorised Users comply with all terms and conditions of use of the Platform. Similarly, Client undertakes to control the authorised Users’ access to the Platform and ensure that they use said Platform in accordance with this Agreement. The Client and its authorised Users shall refrain from using, downloading, copying, altering, modifying, adapting, deleting, distributing, transmitting, disclosing, selling, leasing, licensing or exploiting the Platform, in full or in part, by any means and in any form whatsoever, for any purposes other than those strictly laid down by this Agreement. Client and its authorised Users acknowledge that they are not authorised to (i) recreate the Platform logic, decompile or disassemble said Platform or bypass the technical obstacles contained therein, except if these operations are authorised by applicable regulations notwithstanding these limitations; (ii) deactivate, divert or attempt in any way to bypass any mechanism aimed at evaluating use of the Platform, for invoicing purposes; (iii) lease, loan, resell, transfer or sub-license all or part of the Platform to or for third parties. Client and its authorised Users shall refrain from using the Platform:
– in any manner prohibited by laws, regulations, decisions or decrees issued by the authorities;
– in breach of third party rights;
– to attempt to access in an unauthorised manner or disrupt services, data, accounts or networks by any means whatsoever;
– to falsify a protocol or the source of communication (in particular, by impersonating a third party (spoofing));
– to send spam messages or distribute malicious software;
With regard to the Applications, each User of an Application, including the Client, must accept the terms and conditions of use applicable to said Application in order to access and use said Application. Such use must comply at all times with said terms and conditions and the terms and conditions of this Agreement.
6.2.3 Obligations relating to the Client Content
Client undertakes that the Client Content does not contain any offensive remarks regarding in particular Infinite Square, Users and more generally any third parties. Any comment posted online by the Client or participants must comply with rules of common sense and politeness and must be moderate and proportionate. Client warrants to the Service Provider that the Client Content posted online complies with applicable statutory and regulatory provisions and does not constitute:
- an infringement of third party intellectual property rights;
- an offence against persons (in particular, slander, defamation, insults, etc.), a violation of property’s and/or persons’ image rights and privacy’s rights;
- a breach of public order and/or public decency. Infinite Square reserves the right to block and/or delete the Client Content in the event of noncompliance with the provisions of this clause and, more generally, this Agreement.
- Price and Payment Terms
The price of the Services and the invoicing schedule are laid down in the applicable Business Proposal. Unless otherwise provided in the Business Proposal, invoices are payable within 30 (thirty) days as from the invoice date. It is agreed that the prices do not include tax. Any late payment shall give rise, as of rights and without prior formal notice, to the application of interests for late payment (with effect from the payment date), equal to three (3) times the statutory interest rate, starting from the first day of delay. A fixed fee for recovery costs amounting to €40 (forty euros) shall be due by Client as of rights in the event of recovery, notwithstanding the right of Infinite Square to claim for the real recovery’s costs incurred by it and justified on invoices. In addition, in the event where an invoice is not paid by Client within 60 (sixty) days of the said invoice’s date, Infinite Square shall be entitled to suspend the performance of the Services (including in particular the access to the Platform) until full payment of said invoice, without such suspension being construed as termination of the applicable Business Proposal by Infinite Square.
- Intellectual Property
8.1 Infinite Square’s Property
Client acknowledges that Infinite Square remains the exclusive owner of the Solution and all components relating thereto including, but not limited to, all text, graphics, images, logos, names, trade names, techniques, processes, know-how, sounds, photographs, videos, drawings, data, software or any other element of the Platform and/or the Applications (hereinafter the “Infinite Square Content”), and all associated rights, including the intellectual property rights. This Agreement shall not constitute in any way a sale or assignment of all or part of the Solution.
8.2 Client’s Property
Client remains the owner of all data, information, documents that it downloads on the Platform and/or the Applications in the framework of this Agreement (hereinafter the “Client Content”). Infinite Square shall not be entitled to claim any right over the Client Content.
8.3 Rights to Access and Use the Platform
Infinite Square grants all rights to the Client to access and use the Platform for the entire term of the applicable Business Proposal. Unless otherwise provided in the Business Proposal, the right granted accordingly also includes a right to access and use the Platform by any of the Client’s third party service providers or subcontractors and/or the Client’s Affiliates (as such term is defined in Article L233-3 of the Commercial Code) carrying out work for the Client’s needs.
8.4 User Licence on the Applications
Subject to acceptance and compliance with the terms and conditions of this Agreement, Infinite Square shall grant the Client and its Users, for the term stipulated in the applicable Business Proposal, a worldwide, personal, non-exclusive and nonassignable right to (i) download, install, access and use the Applications; (ii) access and use the Infinite Square Content for the sole purposes laid down in this Agreement. Use or reproduction of all or part of the Infinite Square Content is authorised exclusively for information purposes and for personal use only. Any reproduction or representation for any other purposes shall only be authorised subject to Infinite Square’s prior express consent.
The terms and conditions of the licence granted under this Agreement are subject to strict interpretation. Infinite Square reserves all rights which are not expressly granted to the Client in relation to the Agreement.
Infinite Square undertakes to indemnify and hold the Client harmless from and against any legal action or claims alleging that the Solution infringes third party intellectual property rights, subject to compliance with the following terms and conditions: (i) Client has used the Solution in accordance with the terms and conditions of this Agreement; (ii) Client promptly informs Infinite Square regarding any claim or legal action brought pursuant to Article 8.5; (iii) Infinite Square shall have sole control of the defence of the case; and (iv) Client provides Infinite Square with reasonable assistance in the scope of the defence of the case. Infinite Square shall indemnify the Client for the amount of any final judicial decision or settlement. In addition, if Infinite Square considers that a claim or legal action, as described in this clause, may prevent the Client from using the Solution, it shall use its best endeavours to (i) obtain the rights required to enable the Client to continue to use said Solution or (ii) amend or replace said Solution by an equivalent Solution in terms of functionalities. If Infinite Square considers that such options are not feasible, it may terminate the Agreement in whole or in part and, where applicable, refund to the Client any amount paid in advance for the use of the Solution and corresponding to the nonused part of the Services and/or the Platform.
Client (including its users) acknowledges that it is liable for the Client Content that it downloads on the Solution and warrants that it holds all rights and authorizations required to use and/or post the Client Content and that it has paid any and all necessary rights and payments. Client undertakes to indemnify and hold Infinite Square harmless from and against any legal action, any procedure or claims from a third party or a competent authority alleging that the Client Content infringes third party intellectual property rights, property’s and/or persons’ image rights, privacy’s rights, public order and/or public decency and/or protection of personal data, provided that Infinite Square promptly informs the Client regarding any claim or legal action brought pursuant to Article 8.5. Client shall indemnify Infinite Square for the amount of any final judicial decision, settlement, administrative sanction or transaction approved by Infinite Square.
- Warranty – Liability
Infinite Square does not warrant that the Solution is error-free. Indeed, Infinite Square may be required to suspend access to all or part of the Solution from time to time, in particular for technical maintenance reasons, without Infinite Square incurring any liability in this respect. It is also understood that the Internet and IT systems are not error-free and that interruption and failures may occur. Infinite Square does not provide any warranty in this respect and shall consequently not accept liability for any damage inherent to such use of the Internet and IT systems. Insofar as the Client proves that it has suffered a damage arising from Infinite Square’s breach of its obligations, the Service Provider’s maximum liability shall in any event be limited to direct damages suffered by the Client and shall not exceed the amount of the invoices issued and collected by Infinite Square in the preceding 12 (twelve) months period prior to the occurrence of the damage under the relevant Business Proposal. Infinite Square shall not be held liable under any circumstances in the event of (i) fault, negligence, omission or failure by the Client or a third party over which Infinite Square exercises no control or supervision, (ii) force majeure, as defined in Article 10 of these General Terms and Conditions. Infinite Square shall under no circumstances be liable for any indirect damage within the meaning of case law handed down by the French courts.
- Force Majeure
In the event of occurrence of a force majeure event, as defined in the Civil Code, resulting in a temporary impediment on performance by one of the Parties, Parties’ respective obligations shall be suspended, and no Party shall incur any resulting liability. If the force majeure event continues for more than 30 (thirty) consecutive days, and/or, as soon as the force majeure event occurs it results in a permanent impediment on performance by one of the Parties, each Party shall be entitled to terminate the Agreement as of rights, by sending notice in writing to the other Party by registered letter with acknowledgment of receipt. Such termination shall consequently come into force with effect from receipt of the registered letter with acknowledgment of receipt, without either of the Parties incurring any resulting liability.
In the event of breach by one of the Parties of any of its obligations pursuant to the Agreement ( Articles 1 to 23 of the General Terms and Conditions, Articles of the Business Proposal including any appendices and amendments thereto), the non-defaulting Party may terminate the Agreement, in full or in part, as of rights, if the defaulting Party fails to remedy said breach within 30 (thirty) days following notice served to it by the non-defaulting Party sent by registered letter with acknowledgment of receipt (the date of the first attempted delivery shall prevail). The termination shall come into force on the expiry date of the aforementioned deadline, without any additional formalities being required.
In the event of termination of the Agreement, Client undertakes to pay to the Service Provider the amount of the Services performed up until the effective date of termination.
- Non solicitation clause
Client undertakes to refrain from hiring away, recruiting or arranging for work to be performed by any member of Infinite Square’s staff who was involved in performing the Services covered hereby, throughout the entire term of this Agreement and up until expiry of a period of 12 (twelve) months with effect from the end of the contractual relationship. Failing which, the Client shall owe Infinite Square compensation equal to 12 (twelve) months’ gross salary of the employee in question.
- Confidentiality – References
Infinite Square and the Client respectively undertake to maintain the strict confidentiality of all information and documents obtained or exchanged in the scope of the Agreement and performance thereof (the “Confidential Information”). Confidential Information may only be used by each Party in the scope of performance of this Agreement and may not be disclosed to third parties, except in the following cases:
– if the disclosure is required in view of statutory, accounting, judicial or regulatory obligations, which are beyond the Parties’ control, and in this case the Party making the disclosure shall notify the other Party sufficiently in advance;
– if the Party making the disclosure can prove that the disclosed Confidential Information was known thereby on the signing date of the Agreement;
– if the Confidential Information is in the public domain on the date of disclosure thereof;
– if the Party making the disclosure can prove that the Confidential Information was disclosed thereto by a third party without breaching any confidentiality obligation.
Each Party undertakes to indemnify the other Party for all and any damage suffered by said other Party arising from any breach or non-compliance thereby or by its staff/subcontractors (where applicable), with the provisions of this clause. The confidentiality obligations shall survive independently of the Agreement for a period of five (5) years with effect from expiry or termination of this Agreement for any reason whatsoever. Infinite Square may use the Client’s name as a business reference subject to no restrictions.
- Data Protection, Localisation and Processing
Under this clause, the terms “Personal Data”, “Processing”, “Data Controller”, “Data Processor”, “Data Subject”, “Personal Data Breach”, “Supervisory Authority” shall have the meaning given to such terms in article 4 of the EU Regulation 2016/679 dated 27 April 2016 (hereinafter “GDPR”).
14.1 Data Processing implemented by Infinite Square on behalf of Client
The Parties acknowledge that, in the context of the provision of the Services, Client is acting as a Data Controller and that Infinite Square is acting as a Data Processor. In this context, Infinite Square, on behalf of and following Client’s instructions, undertakes to provide the Services in compliance with the provisions of the Agreement, the French Law No. 78-17 dated 6 January 1978 (hereinafter, the “French Data Protection Act”) and the GDPR (together the “Applicable Data Protection Regulations”).
Infinite Square acknowledges and agrees that for the provision of the Services, Infinite Square will have access to Client’s documents and files which contain Personal Data and will implement a Processing whose specificities are described in Appendix 2 to the General Terms and Conditions. Infinite Square, as a Data Processor, undertakes:
– to process Personal Data for the sole purpose of providing the Services and in accordance with Client’s written instructions, unless required by Applicable Data Protection Regulations (in which case Infinite Square must first inform the Client);
– that the personnel authorized to access and process Client’s Personal Data are bound to preserve their confidential nature;
– to take all appropriate security measures required by Applicable Data Protection Regulations to ensure that Personal Data is not distorted, damaged, destroyed, lost or communicated to unauthorized third parties in an accidental or unlawful manner;
– to inform Client of any Personal Data Breach as soon as possible after becoming aware of it and help Client to fulfil its obligation to inform the competent authorities and the Data Subjects in the context of such Personal Data Breach;
– to keep a detailed list of all sub-processors that will be involved for the provision of Services and inform Client of any intended changes concerning the addition or replacement of sub-processors before such changes being effected, it being specified that Client may oppose such changes. In any case, subprocessing by Infinite Square may only occur if Client has not objected to it within one (1) month following the notification of the change by Infinite Square. The authorized sub-processors at the date of execution of the Agreement are the following: Microsoft Corporation for hosting services.
– assist Client, as far as possible, in fulfilling its obligation to respond to requests from Data Subjects to exercise their rights;
– at Client’s option, delete all Personal Data or return them to Client at its request or at the latest at the end of the Agreement, and destroy all existing copies, unless otherwise provided by law;
– allow the performance of audits relating to the processing of Personal Data by Client or another auditor appointed by Client and participate in them;
– in the light of the information at its disposal, collaborate with Client by (i) providing Client with all the information necessary to carry out any data protection impact assessment in accordance with Article 35 of the GDPR; (ii) informing Client whenever it believes that Client’s instructions would infringe Applicable Data Protection Regulations and (iii) providing Client with the necessary information in case Client is required to demonstrate compliance with the Applicable Data Protection Regulations.
Infinite Square guarantees the physical destruction of the Customer’s Content data within a maximum of 3 months from the end date of the licence contracted by the Customer.
Client authorizes Infinite Square and/or any sub processor authorized by Client to transfer Personal Data outside the European Union (EU). In this context, Infinite Square undertakes to inform Client and to take all appropriate measures to ensure the protection of Client’s Personal Data in accordance with the applicable regulations, including by signing binding agreements incorporating the standard contractual clauses of the European Commission.
14.2 Data Processing implemented by Infinite Square
In the context of the performance of this Agreement, Infinite Square collects and processes Personal Data concerning Client or Client’s employees in order to enable it to manage the contractual relationship. In this context, Infinite Square is implementing data processing, in compliance with the Applicable Data Protection Regulations, whose purposes are the management of customers (including contract management, orders, delivery, invoices, accounting, contractual relationship monitoring, satisfaction surveys, complaints management, after-sales service), the conduct of business development operations and more generally the management of operations enabling it to communicate with Client.
The processing carried out in this context is based on Infinite Square’s legitimate interest for some of the purposes, necessary for the performance of the Agreement for others, and, in some cases, on Infinite Square’s compliance with its legal obligations. The Personal Data collected and processed in this context as well as the entire file associated with Client will be kept for the duration of the contractual relationship and for the applicable limitation period. In accordance with the Applicable Data Protection Regulations, Client and/or Client’s employees have the right to access, rectify, delete their Personal Data, limit the processing and oppose the processing of their personal data. Client and/or Client’s employees also have the right to send Infinite Square special instructions regarding the fate of their Personal Data after their death. To exercise these rights, Client may send a request by email to email@example.com or by post to Infinite Square, 33 rue du Faubourg Saint-Antoine – 75011 Paris. Finally, Client and/or Client’s employees may lodge a complaint with the Personal Data Protection Authority. The data collected and processed in this context may be communicated to third party service providers, acting as sub processors within the meaning of the Applicable Regulations, for the purpose of performing, in particular, hosting, storage, analysis, and database management or computer maintenance services. These service providers act only on instructions from Infinite Square and will only have access to the Personal Data of Client’s employees to perform these services and will be bound by the same security and confidentiality obligations as Infinite Square. Data collected and processed in this context may be transferred outside the EU. When data is transferred outside the EU, Infinite Square shall implement all appropriate safeguards to ensure the protection of Client’s employees’ data in accordance with the Applicable Data Protection Regulations, including the signature of binding agreements incorporating the European Commission’s standard contractual clauses using the following model: https://www.cnil.fr/fr/les-clauses-contractuellestypes-de-la-commision-europeenne.
Parties undertake to take out an insurance policy with a reputable insurance company of their choice and, in general, any insurance policy covering “damage” and “liability” in order to insure all risks under the Agreement. Each Party shall provide a copy of the insurance certificates for the insurance policies taken out at the other Party’s request.
In the event of termination or expiry of the Agreement for any reason whatsoever, Articles 8, 9, 13, 14 and 23 of the General Terms and Conditions shall continue to be valid and remain in full force and effect.
- Independence of the Parties
The relationship between the Parties is a service provider-client relationship. Therefore, Parties acknowledge that the Agreement shall not create any superior-subordinate relationship, agency, association or joint venture between them. In addition, each Party acts in its own name and on its own behalf. Neither of the Parties shall have authority to make commitments for the other Party in any way whatsoever.
- Infinite Square’s Personnel
The work is performed by the personnel of Infinite Square, which shall decide the working team’s composition and tasks’ organisation and shall oversee, manage and supervise its employees. Regardless of the term of the Agreement, said employees shall consequently remain in any event under Infinite Square’s line management, which must be able to demonstrate that each employee is bound thereto by an employment contract in accordance with applicable laws. In order to ensure exchanges of information and technical instructions required to carry out the work, Client and Infinite Square shall respectively appoint a project manager. Infinite Square undertakes to promptly replace any defaulting contractor. In the event of absence of one of Infinite Square’s employees, the latter must be in a position as far as possible to continue to provide the Services. Infinite Square undertakes to comply and ensure compliance by its personnel with all standards and procedures in force at the Client’s premises, including in particular safety and IT standards which shall be notified thereto, and the provisions of the company’s Internal Rules in force at the place of performance of the services. At any time during the performance of the Services, Client shall remain the legal custodian of all of its equipment and installations, including those provided to Infinite Square’s employees. Client shall bear all costs relating to the insurance of all risks and direct and indirect damages that may affect all said equipment and installations.
Should any clause of this Agreement be found to be invalid or unenforceable by a competent court or by law, the remaining provisions shall continue to be valid and remain in full force and effect and the Parties agree to replace the inapplicable provisions.
- Assignment of the Agreement
Neither of the Parties shall be entitled to assign all or part of the Agreement to third parties, even in part, without the other Party’s prior written consent which may not be unreasonably withheld. As an exception to the foregoing principle, Client hereby accepts that Infinite Square may assign or transfer all or part of the rights and obligations under the Agreement to any entity in its group. Such assignment shall come into force on the date on which Infinite Square notifies the Client thereof by registered letter with acknowledgment of receipt (the date of the first attempted delivery shall prevail). In the event of an assignment or transfer, Infinite Square shall not be bound by any joint and several liability pursuant to the assigned Agreement.
- No Waiver
Should one of the Parties fail to exercise any rights granted thereto by the Agreement, this shall not be construed as a waiver of such rights in the future.
- Amendment of the Agreement
The Agreement may only be amended pursuant to an amendment signed by the duly authorised representatives of the Parties.
- Governing Law – Disputes
This Agreement is governed by French law. Parties shall attempt to solve any disputes arising from the interpretation, performance and/or termination of this Agreement amicably, out of court. If not possible to reach agreement out of court, Paris Commercial Court shall have jurisdiction to hear any dispute arising between the Parties, notwithstanding plurality of defendants or warranty claim.