Terms and Conditions of Sale
The present Terms and Conditions of Sale (hereinafter the “TCS”) are concluded between, on the one hand, DataGalaxy, a simplified joint stock company with a capital of 307 825 Euros, registered in the Lyon Trade and Companies Register under the number 811 288 034, whose head office is located at 34 rue Verlet Hanus 69003 Lyon, represented by its legal representative (hereinafter “DataGalaxy”), and, on the other hand, the Customer (hereinafter the “Customer”) whose identity and contact details are detailed in the order form to which the present TCS are attached (hereinafter the “Parties”).
DataGalaxy publishes, develops, and markets a software solution for collaborative data governance of an enterprise information system in SaaS (Software as a Service) mode (hereafter the “Solution”).
Furthermore, DataGalaxy has acquired an expertise in the field of data governance and offers Services (as defined below).
Thus, DataGalaxy proposes to the Customer a personalized commercial offer (hereinafter the “Offer”), consisting of a Subscription (as defined below) to the Solution and/or eventual Services.
Based on this information, the Customer has decided to subscribe to the Offer described in the Order Form at DataGalaxy. The acceptance of the Purchase Order by the Customer, manifested by his signature preceded by the words “Read and approved”, implies the acceptance of the present TCS without reserve. The Customer accepts that DataGalaxy may reasonably modify the present TCS, and that their relationship will always be governed by the latest conditions in force.
IN CONSIDERATION OF WHICH, THE PARTIES HAVE AGREED AS FOLLOWS:
ARTICLE 1. DEFINITIONS – CONTRACTUAL DOCUMENTS
For the purposes hereof, capitalized words and phrases shall have the meanings set forth below, whether used in the singular or plural.
- « Contract »: has the meaning given to it in paragraph B of this article.
- « Credentials »: means the credentials, personal to each User, allowing him to access the Solution.
- « Customer »: means the legal entity, co-contractor of DataGalaxy under the present contract, intervening in the framework of its professional, commercial, industrial, artisanal, liberal, or agricultural activity.
- « Customer Data »: means the information and data (including Personal Data) for which the Customer and/or the User are responsible, and which the User enters, fills in, transmits and, if applicable, processes, as part of his use of the Solution.
- « Order form »: means the document sent by DataGalaxy to the Customer for acceptance, which presents in detail the Offer proposed to the Customer as well as its tariff conditions.
- « Personal Data »: means personal data within the meaning of Law No. 78-16 of 6 January 1978 as amended (known as the “Loi Informatique et Libertés”) and European Regulation No. 2016/679 on the protection of individuals regarding the processing of personal data and on the free movement of such data (known as the “GDPR”).
- « Price »: means the price of the Offer subscribed by the Customer, paid according to the conditions defined in the Contract.
- « Services »: means the services offered by DataGalaxy that the Customer may have chosen as part of its Offer, such as intellectual services to assist and train the Customer in the use of the Solution, or to provide consulting services for data mapping and governance.
- « Solution »: has the meaning given to it in article 1 above. The description of the Solution is made available to the Customer by DataGalaxy on its web site accessible at the following address: www.datagalaxy.com. DataGalaxy is at the Customer’s disposal to answer all his questions by email (firstname.lastname@example.org).
- « Subscription »: means the subscription taken out by the Customer giving him access to the Solution over a given period as indicated in the “Order Form”.
- « User »: means any natural person who is a member of the Customer’s staff and who has been authorized by the Customer to use the Solution under the terms of the Contract, exclusively for professional purposes, regardless of where that person is located and how he or she is connected.
- « Website »: means the Solution web site, owned, and operated by DataGalaxy, accessible at https://www.datagalaxy.com.
B. Contractual documents
The following documents (hereinafter collectively referred to as the “Contract”), presented in hierarchical order of legal value, express the entirety of the parties’ rights and obligations with respect to the Solution:
1. The Purchase Order issued by DataGalaxy and signed by the Customer for approval.
2. Any special conditions negotiated with the Customer.
3. The present TCS and its possible annexes.
In the event of a contradiction between the provisions of any of these documents, the provisions of the higher-ranking document shall prevail.
The Parties acknowledge that the Contract constitutes their entire Contract relating to the provision of the Services and the use of the Solution and supersedes any prior Contract, oral or written, having the same purpose.
Any specifications or requirements document established by the Customer will not be considered by DataGalaxy, except if DataGalaxy expressly validates it. In case of such validation, the said specifications or requirements document established by the Customer will be considered as a document of lower rank than the TCS in the above-mentioned hierarchical order of legal value.
ARTICLE 2. PURPOSE – SCOPE – ACCEPTANCE
The purpose of the present TCS is to define the terms and conditions under which the Customer subscribes to the DataGalaxy Offer, subject to the payment of the corresponding Price. The TCS apply, without restriction or reserve, to any subscription made by the Customer under the conditions described in article 4 below.
The Customer declares to have read and accepted the present TCS. Any subscription to a DataGalaxy Offer is subject to the respect of the present TCS and implies the express and unconditional acceptance of all the provisions of the present TCS.
ARTICLE 3. DURATION
The Contract shall come into force on the date on which the Customer subscribes to the Offer, as indicated in the Order Form, and for the duration provided for in the Contract. Any subsequent modification of the term of the Contract shall be subject to the mutual Contract of the Parties, as evidenced by the sending of a new Order Form.
At the end of the term provided for in the Contract, the Contract shall be automatically renewed for successive periods of 1 (one) year, unless either Party wishes not to renew it, by notifying the other Party in writing up to 1 (one) month before the anniversary date of the Contract. The Contract shall then not be renewed and shall no longer be effective as of the end of the current period.
It is understood that in case of renewal, the last Purchase Order issued by DataGalaxy within the above-mentioned period will be the one stating the Contract of the Parties. The consequences of the termination of the Contract are provided for in the article “Consequences of Termination” of the present document.
ARTICLE 4. SUBSCRIPTION TO AN OFFER
In order to subscribe to an Offer, the Customer must return the Order Form duly signed by his legal representative or any person authorized by him, with the mention “Read and approved, good for Contract”.
The return of the Order Form established by DataGalaxy, duly signed and annotated by the Customer, constitutes the formation of the Contract. In case the Customer wishes to send his own order form, the signature of the latter will constitute the Contract.
ARTICLE 5. OBLIGATIONS OF THE PARTIES
5.1 Customer’s obligations
- The Customer expressly agrees to:
- Provide DataGalaxy with true and accurate information, the information provided by the Customer to DataGalaxy being essential for the processing and subscription of the Offer, as well as for the establishment of the corresponding invoices, their absence leading to the impossibility for the Customer to subscribe to the Offer.
- Provide DataGalaxy in a timely manner with all documents, information and material assistance necessary for the proper execution of the Contract.
- To make all reasonable efforts to ensure that each User has the necessary skills to use the Solution in accordance with the Contract.
- Not to use the Solution for purposes other than those specified in the Contract.
- Not to log in to any account other than his own.
- Not to modify or delete any part of the Solution without DataGalaxy’s prior written consent.
- Not to download viruses or files that could damage the integrity of the Solution.
- To pay the Price according to the conditions defined in the Contract.
5.2 DataGalaxy’s obligations
DataGalaxy expressly agrees to:
- Carry out, if applicable, the Services in accordance with the Purchase Order.
- Provide loyal and informed advice to the Customer in the context of his subscription to the Services, if applicable, within the limits of its human and technical resources, as well as the information provided by the Customer on his needs and constraints.
- Cooperate with the Customer to facilitate its use of the Solution.
- Allocate the competent personnel and the human and material resources necessary for the proper provision of the Solution and the eventual performance of the Services.
- To make the Solution available and to carry out any Services in compliance with applicable laws and regulations.
It is understood that, considering the sector and the nature of its services, all the obligations of DataGalaxy under the Contract are obligations of means and not obligations of result.
5.3 Obligation of the Parties to cooperate
Each Party recognizes that the performance of the Contract requires active, positive and respectful cooperation and a climate of mutual trust. The Parties hereby undertake to use their best efforts to facilitate the exchange of information necessary for the performance of the Contract.
ARTICLE 6. LICENCE
DataGalaxy gives the Customer the possibility to use the Solution by granting a non-exclusive license for the duration of the Contract.
ARTICLE 7. FINANTIAL CONDITIONS
DataGalaxy donne au Client la possibilité d’utiliser la Solution en lui octroyant une licence d’utilisation non exclusive pour toute la durée du Contrat.
The Price is fixed by mutual Contract between the Parties, it depends on the Offer chosen by the Customer and is detailed in the Order Form.
On the anniversary date of the Contract indicated in the Purchase Order, and thereafter on each renewal date, the Price may be revised by an increase capped at 7% (seven percent) of the previous year’s Price.
7.2 Billing Procedures
DataGalaxy will send the Customer an invoice on the day of the subscription to the Offer. The amount of the invoice will be increased by the taxes in force at the date of the invoice.
The payment of the total amount of the invoices will be made: (i) by direct debit on the date of the invoice or (ii) by bank transfer within thirty (30) days from the date of the invoice to the DataGalaxy account whose bank details are indicated on the invoice.
In case the payment of the Price is impossible due to the bank’s refusal, the Contract will be automatically suspended until the Customer has paid the invoice within thirty (30) days; otherwise, the Contract will be cancelled by right and the order will be cancelled.
In the event of late payment for any reason whatsoever, the sums owed by the Customer shall automatically bear, as of the due date and without the need for prior formal notice, late payment interest calculated daily at the rate of three (3) times the legal interest rate. In addition, the Customer shall be liable for a lump sum of forty (40) euros, in accordance with the provisions of Article L.441-10 of the Commercial Code.
The partial or total non-payment of any amount due will allow DataGalaxy to suspend the execution of any service foreseen in the Contract, without prejudice to its right to claim compensation for the prejudice suffered, until full payment of the amounts due. After a delay of one (1) month from the due date, DataGalaxy may also immediately terminate the Contract, without prejudice to any damages it may claim. The sums already paid by the Customer will be retained by DataGalaxy.
ARTICLE 8. TERMINATION
8.1 Early termination
Either Party may terminate the Contract in advance, at any time, by registered letter or e-mail with acknowledgement of receipt:
- In the event of partial or total non-performance by the other Party of its obligations under the Contract, which has not been remedied within thirty (30) days after notification of the breach by any written means, without prejudice to any damages that the injured Party may claim.
- In the event of an unfavorable change in the Customer’s financial or commercial situation, which could lead to a default in payment.
In the event that, due to the nature of the unfulfilled obligation, it is not possible for the defaulting Party to remedy it, the Contract may be terminated by either Party as of right without prior notice.
8.2 Consequences of termination
In case of termination, the sums already received by DataGalaxy will be retained.
However, in case of termination due to DataGalaxy’s failure to fulfill its contractual obligations, DataGalaxy may reimburse the Customer for the sums paid in advance, prorated to the time remaining on the effective date of the termination.
Furthermore, the termination of the Contract will not affect the clauses related to the settlement of disputes, nor those intended to be effective even in case of termination, such as (but not limited to) the confidentiality and non-competition clauses.
ARTICLE 9. GUARANTEE
9.1 Guarantees of the Customer
The Customer guarantees the use of the Solution by the Users, who are under its responsibility, and shall hold the Agency harmless from any damage, sanction or action by third parties in connection with such use. In particular, the Customer guarantees that Users:
- Maintain the absolute confidentiality of the Credentials, in particular by refraining from communicating them or making them available to any third party, including through negligence or omission.
- Use the Solution in compliance with all applicable laws and regulations.
- Refrain from any act or attempt to reproduce or reverse engineer the Solution or any of its components.
- In general, use the Solution only for the purpose of proper execution of this Contract, in the name and on behalf of the Customer.
- Inform the Customer and DataGalaxy without delay in case of loss, theft, corruption or compromise of their Credentials.
The Customer is also responsible for ensuring the proper allocation of access rights to the Solution, by selecting and designating the Users by name to DataGalaxy and informing DataGalaxy without delay at the end of their mission at the Customer’s premises or on behalf of the latter, or if one of the accesses to the Solution seems no longer justified for a User.
The Customer understands and accepts that access to the Solution requires an Internet connection and computer resources (including at least a functional terminal and an up-to-date Internet browser), the costs of which will be at the Customer’s exclusive charge.
9.2 Guarantees of DataGalaxy
DataGalaxy commits itself to have, and to continue to have, all the intellectual property rights necessary to allow the Customer and the Users to access and use the Solution in SaaS mode, and in this respect commits itself to hold the Customer harmless from any dispute, claim or action of any third party, as well as from any sanction of any authority or jurisdiction, which would be based on or caused by the ownership of the elements that compose the Solution.
Furthermore, DataGalaxy declares that it has all the rights to enter into the Contract and to comply with the present provisions.
ARTICLE 10. RESPONSIBILITY
DataGalaxy will only be liable for direct and foreseeable damages resulting from a breach of its contractual obligations. Under no circumstances will DataGalaxy be held responsible for any indirect, foreseeable, or unforeseeable damage. In this respect, the Parties expressly agree that the following will be considered as indirect damages: loss of customers, loss of profits, loss of productivity, loss of contracts or orders, loss of image or reputation, loss, or deterioration of data (it is the responsibility of the User and/or the Customer to ensure regular back-up of the Customer Data), as well as any damage suffered by a third party.
If DataGalaxy’s responsibility is retained, the global and cumulated indemnity, principal, interests and expenses, all causes included to which the Customer may be entitled will be limited to the amount invoiced by DataGalaxy to the Customer for the Contract for the period considered in the Offer.
- In any case, DataGalaxy cannot be held responsible, directly, or indirectly, for any reason, in case of:
- Failure, breakdown, difficulty, or interruption in the functioning of the electrical, telecommunication, internet, or other network, preventing access to the Solution or to any of its functionalities.
- Interruption of service due to the behavior of one or more Users or for maintenance operations.
- Non-compliance with the computer environment and/or the required configuration.
- Anomaly or malfunction of the Solution, following adaptations made by the Customer or the intervention of any unauthorized third party.
- Contamination of the User’s data, software and/or hardware resulting from the propagation of a virus or other malicious code (it being specified that the User is solely responsible for the security of his data, software and/or hardware and must take all appropriate measures to protect them).
- Use of the Solution in a manner contrary to the provisions of the Contract.
- Modification of all or part of the Solution not made by DataGalaxy.
- Use of all or part of the Solution when DataGalaxy, due to a difficulty or for any other reason, had recommended to suspend its use.
- Occurrence of any damage resulting from an event not attributable to DataGalaxy.
The Parties acknowledge that the provisions of this Article are determinative of their willingness to enter into the Contract and that the price agreed upon reflects the allocation of risks arising from the Contract, the resulting limitation of liability, and the economic balance intended by the Parties.
ARTICLE 11. COMMERCIAL REFERENCE
DataGalaxy may, acting within the scope of its professional activity and in particular within the scope of its commercial prospecting, external communication and advertising, use the Customer’s company names and logos as a commercial reference.
This right includes the right to use, for the above-mentioned purposes, any of the Customer’s usual names and trade names, including when they are protected as trademarks, throughout the world, on its social networks for an unlimited period. The Customer may object to such use at any time by notifying DataGalaxy by mail with acknowledgement of receipt.
ARTICLE 12. INTELLECTUAL PROPERTY
DataGalaxy is and remains the owner of the intellectual property rights related to the Solution made available to the Customer. Therefore, all rights related to the Solution and all elements that compose the Solution are the full and complete property of DataGalaxy.
The Contract does not grant the Customer any property right on the Solution, and the Customer does not have the right to copy, translate, adapt, arrange, or make any other modification of the Solution and of all its elements. In case of any use exceeding the one defined in the Contract, the Customer is exposed to legal action that DataGalaxy may take.
ARTICLE 13. PERSONAL DATA
13.1 Identification personal data
The Customer is informed that the following information may be collected by DataGalaxy: name, surname, e-mail address, telephone number, of the Users.
- Therefore, the Personal Data transmitted by each Customer and/or User, are exclusively destined to DataGalaxy services for the following purposes:
- To carry out operations related to the management of customers concerning: the Offer, orders, invoices, accounting.
- To carry out operations related to prospecting.
- To elaborate commercial statistics.
- To manage the requests of right of access, rectification, and opposition.
- To manage unpaid invoices and litigation.
- To manage people’s opinions on products, services, or content.
These Personal Data are not transmitted to third parties for advertising and promotional purposes without the prior consent of the persons concerned. Personal Data are only transferred outside the European Union, if necessary, to countries considered by the CNIL or the European Commission as offering an adequate level of protection.
The data is processed and kept by DataGalaxy for a period that does not exceed the time necessary for the purposes for which it is collected and processed, subject to applicable legal obligations.
In accordance with the provisions of the French Data Protection Act, the Customer and/or each User has the right to oppose, access, rectify and delete data concerning him/her. The Customer and/or each User can exercise this right online at any time by writing to the Customer Service by e-mail at “email@example.com” or by post at the following address DataGalaxy – Personal Data Protection Services – 34 Rue Verlet Hanus, 69003 LYON.
For the proper training of users, emails will be sent to users presenting new features, working methods, etc. The User may request to stop receiving such e-mails from DataGalaxy at any time by sending a message to the support team.
When DataGalaxy is required to process personal data of Users in the context of the provision and/or use of the Solution, the terms will be provided in a data processing agreement.
Cookies are collected to facilitate the use of the Solution and/or for the needs strictly necessary for the provision of the Solution requested by the Customer and/or to obtain information on the navigation of the Users and to allow the reconstruction of their path.
The User is hereby informed that continued browsing and use of the Solution constitutes consent to the deposit of cookies on his terminal. They may oppose the recording of cookies by configuring their Internet browser.
ARTICLE 14. CONFIDENTIALITY
DataGalaxy and the Customer mutually commit themselves to a general obligation of confidentiality regarding the information, data, formulas, or concepts of the other Party on any support (written documentation, technical manuals, plans, drawings, schematics, know-how, etc.) exchanged within the framework of the present Contract (hereinafter the “Information”) for a period of 5 (five) years from the date of its disclosure.
The Customer acknowledges that any Information related to the Solution, communicated by DataGalaxy, within the framework of the present contract, is identified as confidential by nature and is forbidden to communicate it, in whole or in part, to third parties, without the prior written authorization of DataGalaxy, or to use it for any other purpose than the one for which it was communicated.
It is reminded that Information does not include information: (i) generally available to the public or known to the public, (ii) previously known to the recipient, (iii) independently developed by the recipient outside the scope of the contract formed in accordance with article 3, (iv) lawfully disclosed by a third party, or in testimony before a competent authority. Both Parties shall take all necessary measures with respect to their personnel and partners to ensure the effectiveness of the above obligation.
ARTICLE 15. SUBCONTRACTING
DataGalaxy uses subcontractors, for example for hosting or installation of the Solution, and/or for the realization of Services such as training on the Solution. DataGalaxy reserves the right to use any subcontractor of its choice.
ARTICLE 16. FORCE MAJEURE
Neither Party shall be liable in the event of force majeure. Expressly, are considered as force majeure those fulfilling the criteria of article 1218 of the Civil Code and usually retained by the French jurisprudence.
ARTICLE 17. NON-SOLICITATION OF PERSONNEL
Each party shall not, directly, or indirectly, through an intermediary or on behalf of a third party, solicit, hire, or contract for services with (i) any employee of the other party, (ii) any person who has been employed by the other party within the preceding twelve (12) months, during the entire term of the Contract and for 1 (one) year after its expiration date.
If either party fails to comply with this obligation, that party agrees to pay to the other party a penalty equal to two (2) times the annual gross compensation paid by that other party to the individual.
ARTICLE 18. TRANSFER
Neither Party may assign or transfer, in any manner whatsoever, even free of charge, all or part of its rights and obligations under the Contract without the prior written consent of the other Party.
ARTICLE 19. ELECTRONIC SIGNATURE
The Parties acknowledge and accept the legal effect and admissibility of the electronic signature process.
ARTICLE 20. VALIDITY
If any provision of the Contract is declared void or unenforceable pursuant to a law, regulation or final court decision, it shall be deemed unwritten, and the remaining provisions shall remain in effect.
ARTICLE 21. APPLICABLE LAW – COMPETENT JURISDICTION
The provisions of the Contract are governed by French law. In the absence of amicable resolution, any dispute relating to the Contract shall be submitted to the jurisdiction of the Commercial Court of Lyon (France), notwithstanding multiple defendants or the introduction of third parties.
ARTICLE 22. PROOF
In the event of a dispute, the Parties agree to consider the e-mail exchanges as an original writing valid as perfect proof and waive the right to contest this means of proof, except to discuss its authenticity.