1.1.1 ‘THEGREENBOW’ means TheGreenBow S.A. – SIREN identification number 420 414 336 – VAT number FR35420414336, registered office 28 rue de Caumartin 75009 Paris France.
1.1.2 ‘Client’ means the legal entity/local authority, acting as a professional, that wishes to equip its Employees’ Terminals with the Software of TheGreenBow.
1.1.3 The CLIENT identifies himself when he places his Order on THEGREENBOW’s online store. By accepting the EULA, the CLIENT acknowledges and accepts (i) that he/she is not acting as a consumer within the meaning of the preliminary section of the French Consumer Code, and (ii) that he/she does not have a right of withdrawal within the meaning of section L.221-25 al.1 of the French Consumer Code.
2. EULA – Acceptance by Electronic Signature
2.1.1 1.1.1 Pursuant to the Art. 1356 of the (French) Civil Code, the Client accepts without reservation that by using the electronic signature process offered by THEGREEBOW, the Client expresses his acceptance of this EULA and gives his consent under the conditions of this article:
2.1.2 (i) the EULA is an electronic document that reliably identifies each of the parties (Art. 1366 of the (French) Civil Code) and is drawn up and stored by THEGREENBOW under conditions that guarantee its integrity (Art. 367 of the (French) Civil Code);
2.1.3 (ii) THEGREENBOW’s electronic signature process (a) is deemed to ensure a link with this document and (b) constitutes consent by each party (Art. 367 of the (French) Civil Code) to its provisions;
2.1.4 (iii) this electronic document is evidence between the parties of a private legal act within the meaning of Art. 1364 of the (French) Civil Code.
2.1.5 By accepting the EULA, the Client, acting as a consumer within the meaning of the first article of the (French) Consumer Code, immediately has the right to use the Software and expressly agrees to waive its right of withdrawal in accordance with Art. L.221-25 al.1 of the (French) Consumer Code.
2.1.6 WARNING: THEGREENBOW will not activate the Software unless (i) it has a copy of the EULA accepted online without reservation by the CLIENT and (ii) the payment of the CLIENT ‘s License and Maintenance Fee has been validated by THEGREENBOW or its online payment provider.
3. EULA – Definitions
3.1.1 ‘Administrator’ means an Employee who has privileges granted to him or her to access an Information System in order to take “actions to install, delete, modify and consult the configuration likely [to] modify its functioning or security” (ANSSI recommendations PA022 v2/2018 [National Information Systems Security Agency]).
3.1.2 ‘EULA’ means the indivisible set of stipulations accepted by the CLIENT and constituted, in order of prevalence, by (i) the Order which is equivalent to specific terms and conditions and (ii) the EULA which is equivalent to general terms and conditions and which together governs the conditions of the License to Use and Maintenance of the Software granted by THEGREENBOW to the CLIENT, as well as any rider which would complete, modify or replace one of these documents. The EULA cancels and replaces all previous agreements, verbal or written, made between the parties, concerning the conditions of use and Maintenance of the Software.
3.1.3 ‘Employee’ means an employee, trainee, temporary worker or corporate officer of a party or any of its service providers, agents, subcontractors or any individual or legal entity that controls or is controlled by (within the meaning of Art. L.233-3 of the (French) Commercial Code) such party and on whose Terminal the Client installs the Software.
3.1.4 ‘Order’ means the specific terms and conditions of the EULA concluded between the Client and THEGREENBOW that details (i) the version of the Software, (ii) the Initial Term of the License to Use and the conditions for its renewal / continuation / extension, (iii) the amount of the Fee to be paid by the Client to THEGREENBOW.
3.1.5 ‘Software’ means all of the modules of the computer program identified in an Order that allows the secure transfer of digital data between the Client’s Information System and an Employee’s Terminal. The compatibility of the Software with the operating systems is detailed in Maintenance Level 1 documentation..
3.1.6 ‘Maintenance’ means the services of assistance for the installation and use (“Maintenance Level 1”) and correction of the Software (“Maintenance Levels 2 and 3”). The commitments of THEGREENBOW under the Maintenance are exhaustively defined in the EULA section “Maintenance”.
3.1.7 ‘Fee’ means the amount owed by the Client to THEGREENBOW in consideration for the inseparable rights to (i) benefit from a License to Use and (ii) the Maintenance services for the Software.
3.1.8 ‘Information System’ means jointly for both parties (i) “any device or group of devices” that are interconnected via “an electronic communications network” “one or more of which, pursuant to a [computer] program perform” “automatic processing of digital data”and (ii) “digital data stored, processed, retrieved or transmitted” by that device via an electronic communications network“for the purposes of their operation, use, protection and maintenance”(EU ‘NIS’ Directive 2016/1148 of 6 July 2016) (iii) that are owned or controlled by a party and (iv) more generally, any hardware and/or software device, whether internal or external to a party’s company, that is necessary for the proper functioning of its Information System (air conditioning, power supply, etc).
3.1.09 ‘Terminal’ means a terminal within the meaning of EC Directive 2008/63 of 20 June 2008 (computer/tablet/smartphone, etc) that enables an Employee to connect to the Information System of a party via an electronic communications network in order to retrieve information from it or transmit information to it.
4. EULA – Purpose
4.1.1 The purpose of the EULA is to define the conditions under which THEGREENBOW grants the Client, in consideration of the payment of the Fee, and the Client grants its Employees (i) a License to Use for the Software and (ii) subject to payment of the relevant specific Fee, the right to benefit from Maintenance services for the Software.
4.2.1 Services for which THEGREENBOW is responsible but that not explicitly included in the details of the services provided by THEGREENBOW under the EULA are additional services.
4.2.2 Any additional service provided by THEGREEBOW must be the subject of a quote by THEGREENBOW and prior, written and express acceptance by the Client before being performed by THEGREENBOW. Additional services are invoiced by THEGREENBOW and paid for by the Client in addition to the Fee.
5.1.1 The activation of the Software on the Terminals of the Client’s Employees is carried out online by THEGREENBOW. THEGREENBOW’s activation server includes a reporting module (without collecting personal data) for the exclusive benefit of THEGREENBOW that enables it to check the Client’s compliance with the EULA (number of Terminals having the Software, etc) and invoice the agreed amount of the Fee. NOTE: THEGREENBOW will not activate the Software unless it has first received a version of the EULA signed, without reservations, by the Client.
5.1.2 If the Client specifically chooses to do so in the Order, a specific TAS activation software can be provided to the Client, subject to payment of the corresponding Fee.
6. EULA – Duration of the license use
6.1.1 The EULA takes effect on the date the payment of the CLIENT has been credited in THEGREENBOW banking account.
6.1.2 The EULA is entered into for the Initial Term of the License to Use as stated in the Order. Accordingly, and unless terminated (a) during the THIRTY (30) day Evaluation Period starting at the first Initial Period or (b) for a sufficiently serious breach in application of the EULA “Termination” section (i) no termination “for convenience” is possible by either party during the Initial Term (or any Additional Period) and (ii) the Fee due by the Client during the Initial Term (or any Additional Period) is payable by the Client to THEGREEENBOW, as stated in the EULA “Financial Terms” section.
6.1.3 Each period of performance of the EULA subsequent to the Initial Term constitutes an Additional Term (which never includes an Evaluation Period). The parties shall have the same rights and obligations during any Additional Period as during the Initial Term.
6.1.4 At the end of the Initial Term, the EULA shall be tacitly or expressly renewed / continued / extended, subject to payment by CLIENT of the relevant Licence and Maintenance Fee.
6.1.5 During the Evaluation Period, the CLIENT (i) uses the Software in real operating conditions and (ii) may, at any time and without justification, Notify THEGREENBOW of the termination of the EULA. The Evaluation Period is the period for testing the Software. In the absence of written and documented reservations during the Evaluation Period, the Software is deemed to have been accepted without reservation by the CLIENT. After the Evaluation Period, any reservations relating to the operation of the Software will be dealt with by THEGREENBOW in the context of Maintenance.
6.1.6 In the event of termination by the CLIENT during the Evaluation Period, the Royalties provided for the Evaluation Period shall be retained by THEGREENBOW and THEGREENBOW shall reimburse the balance of the User License and Maintenance Royalties paid in advance by the CLIENT for the period following the Evaluation Period, to the exclusion of any other indemnity / reimbursement / damages of any kind whatsoever by one party to the benefit of the other
7. EULA – Financial Terms
7.1.1 The amount and terms of payment of the Fee are detailed in the Order and are expressed exclusive of tax. The fees of the Licence of Use are fixed during the Initial Period (and any Additional Period. The Client is solely responsible for the payment of the Fee and any taxes and/or duties related to the execution of the EULA. As the sole signatory of the EULA, the Client is solely responsible for the payment of the sums owed due to the use of the Software by its Employees and/or those of its service providers, subcontractors and legal entities that it controls or that control it within the meaning of Art. L.233-3 of the Commercial Code. THEGREENBOW’s Fee invoices are payable in advance at the date of conclusion of the EULA.
7.2.1 If the EULA is tacitly renewed / continued / extended at the end of the Initial Term, the Licence and Maintenance Fee for the Additional Period shall be automatically indexed each year on the anniversary date of the Initial Term according to the indexation formula P1 = P0 x (S1 / S0) where P1 = revised price; P0 = original contractual price of the Fee; S0 = Syntec reference index at the date of commencement of the Initial Term and S1 = most recently published index at the date of application of the indexation.
7.3.1 Compliance by the Client with the deadlines for the payment of the Fee is an explicit and essential aspect of the Client’s performance expected by THEGREENBOW. Any delay in payment by the Client after the contractually agreed due date is deemed to constitute a sufficiently serious breach or non-performance by the Client that automatically entitles THEGREENBOW to suspend the License to Use and Maintenance without further notice or formality of any kind.
7.3.2 In the event of non-payment of all or part of the Fee within the contractual deadlines: (i) any unpaid amount will automatically generate daily late-payment interest, applicable until the date of full payment of the debt owed to THEGREENBOW in principal, interest, costs and accessories, at a rate equal to three (3) times the legal interest rate, without the need for any reminder and without prejudice to the damages and interest that THEGREENBOW reserves the right to seek in court; and (ii) a fixed indemnity for collection costs, the amount of which is defined in Art. D.441-5 of the Commercial Code, shall be automatically payable for each invoice in question.
8. EULA – Liability and Insurance
8.1.1 Each party shall be liable for the immediate, direct and foreseeable damage caused by any partial or total failure to perform its obligations under the EULA, excluding the Client’s right to claim compensation for the cost of use of a software or the provision of a substitute service for the Software, which shall be the sole responsibility of the Client.
8.1.2 The amount of the pecuniary liability of each party shall not be limited in the event of (i) personal injury to an Employee of the other party or (ii) willful or reckless misconduct or (iii) infringement of intellectual property rights.
8.1.3 Except in the situations referred to in the previous paragraph, the total amount of THEGREENBOW’s pecuniary liability under the EULA is limited to the amount of the Fees banked by THEGREENBOW during the previous twelve (12) months.
8.1.4 In the case of “perpetual” User License (for the duration of the copyright protection of the Software) for a period without Maintenance, the CLIENT expressly accepts THEGREENBOW does not guarantee that the Software will function in accordance with its intended purpose or without any Bug.
9. EULA – Termination
9.1.1 The EULA shall immediately and automatically end if a party fails to remedy either (i) a sufficiently serious and/or repeated breach of any of its contractual obligations or (ii) an explicit and essential aspect of its performance, within thirty (30) days of notification by the other party of the obligation to remedy such breach.
9.2.1 Each Party may terminate the EULA in the event of a change of control affecting the other Party and only in the following situations: (i) if the change of control of a Party is carried out for the benefit of a direct competitor of the other party’s principal activity or (ii) if the individual or legal entity taking control of a party is likely to be required to comply with the United States CLOUD Act enacted on 23 March 2018 or the Executive Order on ‘Taking Additional Steps to Address the National Emergency with Respect to Significant Malicious Cyber-Enabled Activities’ published on 19 January 2021 or (iii) where the individual or legal entity taking control of a party does not have a registered office in the European Union.
9.3.1 On the expiry of the Initial Term or any Additional Period, the License to Use granted to the Client shall automatically terminate and the Client shall cease to use the Software without any other formality other than the mere acknowledgement of the expiry of the EULA. The termination of the License to Use shall automatically result in termination of the Maintenance and vice versa.
9.3.2 Stipulations that, by their nature, survive the termination of a contract (eg, attribution of jurisdiction, confidentiality obligations, personal data protection obligations, etc) survive the expiry of the term of the EULA, irrespective of the cause and/or basis.
10.1.1 THEGREENBOW will deliver the Software by hypertext link allowing it to be downloaded onto the Client’s Information System. The link is included in the Order.
10.1.2 The Expertise Centre details how the Client installs and configures the Software. The Client is solely responsible for the installation of the Software in (i) its Information System and (ii) its Employees’ Terminals.
10.2.1 The License to Use granted to the Client includes the right to use the Software only in binary form and only during the Initial Term (or any Additional Term) on a non-exclusive and non-transferable basis and cannot be sub-licensed, assigned, transferred or made available to any third party who is not an Employee, whether free of charge or for consideration, in any practical or legal manner whatsoever.
10.2.2 By express agreement between the parties, the License to Use granted by THEGREENBOW constitutes the provision of a copy of the Software within the meaning of Art. 1709 and following of the Civil Code and not a transfer of intellectual property rights within the meaning of Art. L.131-3 of the Intellectual Property Code. The parties acknowledge that current software technique prevents THEGREENBOW from guaranteeing that THEGREENBOW will be able to correct all of the Bugs that may affect the Software. In accordance with para. 3 of Art. 1133 of the Civil Code, the Client expressly acknowledges that it accepts this risk as being inherent in the techniques for developing and operating computer programs.
10.3.2 Any modification or attempt by the Client to modify the conditions of the License to Use, whether voluntary or otherwise, the Software (duration of use, access by a means that is not authorized or provided for by THEGREENBOW, unauthorized increase by the Client in the number of Employees entitled to use the Software, etc) or any use of the Software under conditions not provided for in the EULA without the prior written agreement of THEGREENBOW represents a considerable danger to the continued existence of THEGREENBOW’s business, as the intellectual property in the Software constitutes an essential asset, and is deemed to constitute a sufficiently serious non-performance by the Client that entitles THEGREENBOW to immediately and automatically suspend the License to Use from the date on which THEGREENBOW sends information to such effect to the Client, in particular by email, confirmed by registered letter.
10.4.1 In accordance with Art. R.1332-41-13 of the Defence Code, in the event that the Software is included in the scope of the Client’s Information System of Vital Importance, THEGREENBOW undertakes to make the source codes of the version of the Software identified in the Order available to the ANSSI.
10.5.1 THEGREENBOW warrants that (i) the Software is original and (ii) it owns all of the intellectual property rights in the Software, unless any modules that are integrated into the Software hold open source licenses.
10.5.2 During the Initial Term (and any Additional Term), THEGREENBOW guarantees the Client against any action or proceedings on the grounds that the Software may infringe the intellectual property rights of any third party. THEGREENBOW shall, at its own expense and choice, defend the Client against any such actions brought against the Client by a third party. THEGREENBOW shall pay all damages and interest that the Client may be ordered to pay under a full and final court decision in the substantive proceedings.
10.5.3 THEGREENBOW guarantees the Client quiet enjoyment of the Software, provided that the Client promptly notifies THEGREENBOW of any relevant threatened action or proceeding, allows THEGREENBOW to defend itself and co-operates with THEGREENBOW in such defence at THEGREENBOW’s expense. THEGREENBOW shall have full control over the civil defence, including appeal, negotiations and the right to settle.
10.5.4 In the event of a civil judgment against THEGREENBOW pursuant to a full and final court decision in the substantive proceedings or in the event of a settlement entered into by THEGREENBOW, THEGREENBOW can, at its option and expense either (i) obtain, for the Client, the right to continue to use the Software without any increase in the Fee and without suspension of the Client’s use of the Software, possibly by modifying all or part of the Software so that it no longer infringes the rights of the third party or (ii) if the right to continue to use the Software cannot be obtained or if the Software cannot be replaced or modified at a reasonable cost to THEGREENBOW, notify the Client of the termination of the EULA and return to the Client all Fees paid in advance by the Client to THEGREENBOW from the date of the third-party claim (Art. 1229 of the Civil Code), notwithstanding the Client’s right to seek court-ordered compensation for all of its losses.
10.6.1 THEGREENBOW shall comply with French and European Union regulations applicable to embargoes, export controls, national defence and the protection of strategic interests.
10.6.2 THEGREENBOW is not in a position to control the use that the Client will make of the Software. It is the sole responsibility of the Client to ensure that none of its Employees use the Software installed in a Terminal in its possession in a country that is subject to any official embargo or ban on exports and/or use that is adopted by France and/or the European Union. The Client shall fully and unreservedly accept and guarantee the consequences, in particular the financial consequences (fines, penalties, damages and interest, etc) of any such breach that THEGREENBOW may be charged with.
10.7.1 By granting the Client a License to Use for the Software, THEGREENBOW is a supplier of a means of cryptology “not exclusively ensuring authentication or integrity-control functions” within the meaning of Decree 2007-663 of 2 May 2007 and, as such, has filed its prior declaration with the ANSSI.
11. EULA – Maintenance
11.1.1 ‘Bug’ means any error, anomalie, hidden defect, etc. affecting the operation of the Software or its interaction with the software contained in the CLIENT’s Information System at the date of installation of the Software. Malicious software (malware) and vulnerabilities known in the State of the Art are deemed to constitute Bugs within the meaning of the EULA which THEGREENBOW undertakes to remedy within the framework of its Maintenance services.
11.1.2 ‘Patch’ means any hot fix, patch, update or upgrade of the Software developed by THEGREENBOW that modifies the source code of the Software and fixes one or more Bugs. The terms of the EULA, in particular the License to Use granted to the Client, apply to any Patch provided by THEGREENBOW to the Client under the EULA ‘Maintenance’ Article.
11.1.3 “State of the art” means “the set of best practices, technologies, and reference documents related to the securitý of publicly accessible information systems, and the information that is obviously derived from them” (ANSSI “PVID” referential v1.10 of March 1, 2021).
11.2.1 THEGREENBOW reserves the exclusive right to provide Patches intended to correct any Bugs affecting the Software, in particular those that (i) prevent the Client from using the Software in accordance with its intended purpose or (ii) are necessary for the interoperability of the Software with other software integrated into the Client’s Information System at the date of the Order. THEGREENBOW’s commitments to supply Patches are exhaustively described in this EULA ‘Maintenance’ Article.
11.3.2 For any “perpetual” Licenses for Use (for the duration of the protection of the Software by copyright), it is up to the CUSTOMER to subscribe in addition to the Maintenance services, which will be rendered by THEGREENBOW subject to the receipt by THEGREENBOW of the specific Maintenance Fee.
11.4.1 THEGREENBOW provides online assistance/support for the installation and use of the Software. Only the Administrator has access to Maintenance service, not, under any circumstances, any of the Client’s other employees. It is the responsibility of the CUSTOMER to ensure that each of its Administrators has the individual skills, level of clearance, certifications or qualifications necessary or required to access the Maintenance services. THEGREENBOW reserves the right to block access to the Maintenance services to any person who does not justify their status as Administrator of the CUSTOMER or to Administrators who do not have the necessary qualification to use the Software.
11.4.2 If the Client does not receive an answer to its question, it shall contact THEGREENBOW by email (email support).
11.3.3 If THEGREENBOW identifies the problem encountered by the Client as constituting a Software Bug, it shall produce an incident report.
11.5.1 The priority level attached to a Bug identified by the Client is determined by THEGREENBOW. This decision runs from the time the Client reports the Bug to THEGREENBOW according to the initial response time defined in the ‘Maintenance – Details of services’ Annex.
11.5.2 In order to give priority to the continued use of the Terminal by the Client’s Employees, THEGREENBOW shall, whatever the nature of the Bug, find and provide a Patch as quickly as possible, including in the event of an emergency, as a solution (even temporary) to circumvent the Bug encountered.
11.5.3 THEGREENBOW shall respect the maximum resolution time, from the time of reproduction of the Bug in TheGreenBow’s Information System, before contacting the Client. Once the Bug is reproduced by THEGREENBOW, THEGREENBOW shall (i) correct the source code of the Software at the origin of the Bug and (ii) provide the Client with a binary version of the Patch, which the Client must install in its Information System and on its Employees’ Terminals.
11.6.1 In general, emergency Patches (hot fix and/or patch) that require a modification of the Software source code will be available to the Client within 24 hours of the reproduction of the Bug.
11.6.2 THEGREENBOW shall provide the Client with two (2) new minor or major updates to the Software per year. These minor or major updates will include emergency Patches (hot fixes and patches) intended to resolve previously identified Bugs.
11.6.3 At the Client’s express request, THEGREENBOW may provide certain additional services (installation and production of Patches, at the Client’s request (i) in its Information System and (ii) on each Employee’s Terminal) under the conditions described in the EULA ‘Additional services’ Article.
11.7.1 In order to allow THEGREENBOW to perform its services in compliance with the Service Level Agreements described in the ’Maintenance – Details of services’ Annex, the Client must grant THEGREENBOW full and unrestricted remote access to its Information System and any Terminal with a Bug. If this is not possible, the Client shall provide THEGREENBOW, for each identified Bug, with (i) a detailed description of the Bug encountered, (ii) the complete, corresponding, configuration files, (iii) the log files and (iv) an exhaustive list of third-party software installed in the Terminal.
11.7.2 In the event of a change in the configuration of a Terminal (eg, installation of new software, updates, etc) after the installation of the Software, the Client will be solely responsible for any Bug affecting the Software that relates to such modification.
11.7.1 THEGREENBOW shall use the resources in the Client’s Information System made available to it in order to fulfil its obligations under the EULA, in particular the services in the EULA ‘Maintenance’ Article, only in compliance with the authentication rules defined by the Client.
11.7.2 Even to perform its services under the EULA ‘Maintenance’ Article, THEGREENBOW can access the Client’s data and Information System only on a ‘read-only’ basis, which it is the Client’s sole responsibility to organize and check from time to time.
11.8.1 THEGREENBOW shall use the resources of the Client’s Information System only in order to fulfil its obligations under the EULA, in particular the services in the EULA “Maintenance” Article.
11.9.1 In order to benefit from the Maintenance, the Client’s Administrator is required to (i) notify THEGREENBOW as soon as possible of any possible Bug and promptly send THEGREENBOW any necessary or useful information and technical means so that THEGREENBOW can locate the said Bug and reproduce it in a dedicated physical and software environment in THEGREENBOW’s Information System and (ii) make himself available to THEGREENBOW and allow THEGREENBOW to contact any person likely to provide it with any useful information on the reported Bug in order to ensure its reproduction and correction.
12. EULA – Confidentiality and trade secrets
12.1.1 ‘Information’ means any information, regardless of the medium or means by which such information is provided (whether in writing, verbally, visually, electronically or by any other means) or whether such information is (i) obtained directly or indirectly from the Employees of the other party or (ii) transmitted or provided, voluntarily or otherwise, to the other party orally or in visible or tangible form. By default, information transmitted by one party to the other is Information and is presumed to be confidential, including the provisions of the EULA.
12.2.1 Each party undertakes, in its own name and on behalf of its Employees, to implement ‘reasonable steps’ (Art. 2.1(c) of EU Directive 2016-943) or ‘reasonable safeguards’ (Art. L.151-1(3) of the Commercial Code) for its Information and that received from the other party. The parties acknowledge that the signing of the EULA constitutes a reasonable protection measure.
12.2.2 The party receiving Information from the other party shall keep it strictly confidential and, generally, protect it by applying the same reasonable safeguards that it applies to its own Information. For such purpose, the party that receives the Information shall take particular care to ensure that (i) the Information of the other party is transmitted only to those of its Employees who need to know and after implementation of a reliable process for tracing the provision of such Information and (ii) the Information is not disclosed to any third party unless a confidentiality agreement is signed with such third party containing obligations that are identical to those contained in the EULA.
12.2.3 Each party that is informed of any disclosure or unauthorized use of the other party’s Information shall promptly inform the other party and collaborate with it in order to stop, to the extent possible, the disclosure or unauthorized use of the Information.
12.3.1 Neither party guarantees the veracity or accuracy of the Information disclosed but shall provide it in good faith according to the state of its knowledge at the time of disclosure.
12.3.2 Each party acknowledges that any (i) re-use of the other party’s Information by it for any purpose other than the strict implementation of the EULA or (ii) any unauthorized disclosure of such Information to third parties is likely to cause serious harm to the party that is the original lawful possessor.
12.3.3 THIS UNDERTAKING BY EACH PARTY NOT TO USE OR DISCLOSE THE OTHER PARTY’S INFORMATION TO THIRD PARTIES IS A SUBSTANTIAL AND DETERMINING CONDITION OF EACH PARTY’S DISCLOSURE OF ITS INFORMATION AND TRADE SECRETS TO THE OTHER PARTY IN THE ABSENCE OF WHICH EACH PARTY WOULD NOT HAVE DISCLOSED IT TO THE OTHER PARTY.
12.4.1 Each party shall be released from its non-disclosure undertaking in respect of any Information for which it can provide prior written proof that the Information in question (i) has entered the public domain through no intentional or unintentional civil fault or contractual breach attributable to it or (ii) was known to it previously, having been lawfully received from a third party or (iii) is the result of internal work undertaken in good faith by it without prior knowledge of the other party’s Information or (iv) can be disclosed following written consent of the party from which it originated.
12.4.2 If a party is required to disclose Information pursuant to a legal obligation or in application of a decision of a judicial or administrative authority, such party shall promptly inform the other party (unless specifically prohibited by law) so that the other party can protect the confidentiality of the Information in question as much as possible.
13. EULA – Processing of employees’ personal data
13.1.1 ‘Personal Data Legislation’ means any legislation that is applicable in France that relates to the protection of personal data of individuals, in particular the EU ‘GDPR’ Regulation 2016/679 of 27 April 2016, the ‘Data Protection’ Law 78-17 of 6 January 1978 as amended by Order 2018-1125 of 12 December 2018 and the EU ‘ePrivacy’ Directive 2002/58 of 12 July 2002, as amended by the EU Directive 2009/136 of 25 November 2009. In the EULA, the terms ‘controller’, ‘processor’, ‘processing’, ‘data subject’, ‘data breach’ and ‘personal data’ have the meanings defined in Art. 4 of the GDPR.
13.1.2 As the Software is directly installed as an executable version by the Client in its Information System and Employees’ Terminals, THEGREENBOW is not a processor of the Client’s personal data, for which the Client remains solely responsible.
13.1.3 If, in the course of providing Maintenance services, THEGREENBOW accesses personal data processed by the Client, THEGREENBOW shall refrain from doing so directly and shall give all appropriate instructions so that the Client alone can access the personal data that may be concerned and remain solely and exclusively responsible for the processing of its personal data.
13.1.4 Each party is responsible for the processing of the personal contact data of the other party’s Employees that each party collects directly (Art. 13 of the GDPR) from the other party’s Employees in the course of executing the EULA, which can be carried out for the following purposes only: (i) processing that is necessary for the execution of the EULA (activation of the Software, invoicing, banking, communication between the parties, Maintenance, etc) and the management by each party of the authorizations for the Employees who are authorized to use the Software or access the Information System of the other party (Art. 6.1(b) of the GDPR) and (ii) processing that is necessary for the legitimate interests (Art. 6.1(f) of the GDPR) of securing its Information System or detecting fraud (Commission Nationale de l’Informatique et des Libertés (CNIL) [French Data Protection Authority] Decision no. SAN2020-003 of 28 July 2020) and (iii) processing that is necessary for the purposes of each party’s legitimate interests (Art. 6.1(f) of the GDPR) in prospecting for its other products or services.
13.1.5 Each party shall (i) inform its Employees of the processing of their personal contact data by the other party and (ii) keep the personal data of the Employees of the other party for the period that is necessary for any legal action that may be brought between the parties in connection with the execution of the EULA. At the end of the legal limitation period in France, the personal data of the Employees that is necessary for the execution of the EULA will be deleted (Art. 17 of the GDPR) from the digital databases of the party that collected it.
13.1.6 Each Employee of a party has a right of access to (Art. 15 of the GDPR) and rectification of (Art. 16 of the GDPR) his or her personal data that is processed by the other party. Each party shall reply by email to each Employee of the other party within THIRTY (30) days of receipt of their request, if possible, by email. Should the Employee fail to receive a reply, he or she will be entitled to refer the matter to the CNIL in order to contest such failure to reply. It is the responsibility of each party to inform its Employees of the rights offered by the other party under the Personal Data Legislation.
13.1.7 Each commercial prospection mailing in electronic format by one party to the Employees of the other party shall include a clear and concise reminder of the existence of the right to object to prospecting and profiling (Art. 21 of the GDPR) and an active link to permanently unsubscribe.
13.1.8 The data for such processing is hosted by each party exclusively within the European Union.
13.1.9 Each party shall include such data processing in its register of processing activities (Art. 30 of the GDPR).
13.1.10 Any subcontracting by a party of the technical management of its Employees’ database to the other party will be the subject of a written contract (Art. 28.3 of the GDPR) with a professional subcontractor, each party undertaking that the subcontractor will strictly comply with the provisions of the EULA and guarantee the security and confidentiality of the personal data that a party may entrust to it.
13.1.11 Any other type of processing by a party of the personal data of the Employees of the other party (eg, transmission with or without pecuniary consideration to third parties for direct or indirect marketing purposes, including profiling) shall be carried out by a party only after having received the prior, individual, informed consent of each Employee (Art. 6.1(a) of the GDPR) of the other party.
13.1.12 Each party undertakes to promptly inform the CNIL and, at the latest, within SEVENTY-TWO (72) hours of becoming aware of it (Art. 33 of the GDPR), of any breach of the personal data of the other party’s Employees that is processed in its Information System.
14. EULA – Miscellaneous provisions
14.1.1 Neither party shall be liable for a failure to perform any of its contractual obligations due to the occurrence of a force majeure event, which is defined as an event (i) that is beyond the control of the party affected, (ii) that could not reasonably have been foreseen at the time of the conclusion of the EULA and (iii) the effects of which cannot be avoided by appropriate measures. The party affected by the force majeure event shall take appropriate measures to avoid, eliminate or reduce the causes of the delay and shall resume performance of its obligations as soon as the event invoked has ceased.
14.1.2 For the duration of the force majeure event, if the impediment is temporary (less than THIRTY (30) days), the force majeure event suspends the performance of the obligations of the party invoking it, unless the resulting delay justifies the termination of the EULA (except for the obligation to pay the contractual sums due at the date of occurrence of the force majeure event). If the impediment is definitive or for more than THIRTY (30) days, the EULA is terminated and the parties released from their obligations, subject to notification of such termination by the most diligent party.
14.2.1 The Client expressly authorizes THEGREENBOW to use the Client’s names/logos/brands, in strict compliance with the Client’s graphic charter (i) solely as a commercial reference (list of THEGREENBOW’s client references and public announcements on THEGREENBOW’s professional social networks) and (ii) without referring in any way to either the Software or the nature of the services provided to the Client.
14.3.1 The EULA cancels and replaces all previous oral or written agreements between the parties in relation to the same services. If any provision of the EULA is found to be invalid or null and void pursuant a full and final court decision in the substantive proceedings, the parties agree to attempt to limit the scope of such invalidity as much as possible so that the other contractual provisions remain applicable and the economic balance of the EULA is respected. In such situation, the parties undertake to renegotiate in good faith (Art. 1104 of the Civil Code) the drafting of a new clause to replace the clause that has been declared to be null and void.
14.4.1 The EULA cannot be wholly or partially transferred, whether free of charge or for payment, by a transferring party to a third-party transferee except with the prior written consent of the transferee.
14.5.1 Each party shall elect its registered office as its address for service. Any official notices (default notice, etc) that are required or necessary in application of the EULA shall be in writing and shall be deemed validly given if sent by registered letter with acknowledgment of receipt to the other party, the postmark being the proof of sending.
14.6.1 Any modification to the EULA may only be agreed to in a written amendment (an “Amendment“) executed by a duly authorized representative of each party. Consequently, in the absence of a signed Supplementary Agreement, any oral or written agreement between the parties relating to the EULA shall be deemed to be null and void.
14.7.1 The Client specifically accepts that the proof of its actions or inactions under the EULA is provided by the records from THEGREENBOW’s Information System (or any of its subcontractors), which are deemed to be reliable, established and kept in conditions that guarantee their integrity.
15. EULA – Applicable law and attribution of territorial jurisdiction
15.1.1 The EULA is governed by French law, both as to form and substance. IN DEFAULT OF ANY SETTLEMENT BETWEEN THE PARTIES OF ANY DISPUTE RELATING TO THE INTERPRETATION, PERFORMANCE OR TERMINATION OF THE CONTRACT and only in the event that the defendant is a trader within the meaning of Art. L.121-1 of the Commercial Code, JURISDICTION IS SPECIFICALLY ATTRIBUTED TO THE PARIS TRIBUNAL DE COMMERCE [COMMERCIAL COURT], EVEN FOR URGENT APPLICATIONS, except in the event of material or territorial jurisdiction from which it would not be possible to contractually derogate.
16. ANNEX – Maintenance – Details of services
16.1.1 Standard conditions of installation and use of the Software accessible online 24 hours a day, 7 days a week
16.2.1 By email from Monday to Friday (except French public holidays) from 9 a.m. to 5 p.m. (CET)
16.3.1 According to the priority chosen by THEGREENBOW
16.4.1 If THEGREENBOW does not have a temporary workaround, a Bug is qualified as ‘Priority 1’ in the following situations: (i) the Terminal ‘crashes’ or ‘reboots’ or there is a (ii) loss or corruption of Terminal configuration data or (iii) significant degradation of the operation of any functionality of the Software or (iv) significant degradation of the Terminal’s operating throughput or (v) potential loss of data in the Terminal or (vi) any P2 Bug that significantly affects the Client’s production.
16.4.2 A Bug is qualified as ‘Priority 2’ in the following situations: (i) security vulnerability or a (ii) significant degradation of functionality or throughput of the Terminal or (iii) significant degradation of functionality or throughput of the Terminal for which THEGREENBOW has a temporary workaround or (iv) degradation in the use of the Software that hinders basic configuration (HCI or ILC Bug) or (v) any P3 Bug that affects more than three (3) of THEGREENBOW’s key account customers or (vi) any P3 Bug that affects more than three (3) % of the customers using the standard version of the Software or (vii) any P3 Bug that the User can see in a very visible manner.
16.4.3 A Bug is classified as ‘Priority 3’ in the following situations: (i) inconveniences or problems in use that do not prevent the functioning of the Software (HCI/ILC) or (ii) impaired functionality in unusual or lasting situations or (iii) any P4 Bug that causes an increase of more than 25% in support calls or (iv) any P4 Bug that that the User can see in a very visible manner.
16.4.4 A Bug is classified as ‘Priority 4’ in the following situations: (i) Display bug in the HCI or ILC modules or (ii) other low priority bug.
REMINDER: THEGREENBOW will not activate the Software unless it has first received a version of the EULA signed, without reservations, by the Client.