4. Conditions for access to the Services

The Services are provided to Clients who comply with the following cumulative conditions:

1. The Client is a natural person with full legal capacity, or a legal person acting through a natural person who has the power or authority to enter into a contract in the name and on behalf of the Client;

2. The Client is a professional, understood as any individual or legal entity acting for business purposes, including when acting in the name of or on behalf of another professional.

5. Subscription to the Services

Prior to any use of the Platform and Services, it is the responsibility of the Client, as identified in Quotation, to provide to DIFFERS with useful information and documents to enable it to identify its needs and expectations. DIFFERS will establish a Quotation on the basis of the needs expressed by the Client.

The Services are accessible through the Platform.

Once the Client has signed the Quotation, DIFFERS shall promptly send a link that allows the Client to open an account (the “Client Account”), except otherwise agreed between the Parties. By its Client Account, the Client can access the Platform and manage its use of Services by using its login and password.

Once the Client Account has been created and except otherwise agreed between the Parties, it is the Client's responsibility to:

• allow users (the “Users”) to benefit from the Services directly through the Client Account;

• select Users who have special access to the Services to determine the nature of the accesses given to them, as well as the Service, data and information to which they have access. Users access the Platform by opening an account on the Platform attached to the Client Account (the "User Accounts").

The Client is solely responsible for creating access for Users, for setting their access rights and for their personal use of the Platform.

6. Description of the Services

   6.1 Services 

Before subscribing, the Client acknowledges having read the characteristics of the Services on the Platform. The Client recognizes:

• to be aware of the characteristics and constraints of the Services, in particular the technical ones, 

• that the implementation of the Services requires a connection to internet and that the quality of the Services depends on this connection, for which DIFFERS is not responsible.

The Services to which the Client has subscribed are described in the Quotation. In particular, the Client may have access to the following Services:

1. Implementation: DIFFERS implement the Platform according to the Client’s needs, by collecting its data (the “Data”). The Client shall collaborate with DIFFERS by authorizing access to DIFFER so as it can plug on the Client’s servers. The Client may also upload manually all required Data on the Platform; in this case, it is his responsibility to update the Data on the Platform. 

2. Access to the Solutions: the Client can access a range of Solutions and learn about them on the Platform. The characteristics of each Solutions are described on the Platform, each Solution giving access to a different analysis of the Client’s intern process. 

3. Reports: based on the Client’s Data, a report is generated on the Platform in order to give guidelines, recommendations, and/or simulations a plan to help the Client or the User to optimize their process, regarding the Solution used (the "Report").

4. Other Services: DIFFERS reserves the right to propose any other Service that it deems useful, in a format and according to the technical means that it deems the most appropriate for providing the said Service. In particular, DIFFERS may offer training and/or consulting missions to the Client in link with the Services, according to conditions determined by DIFFERS and stated in a specific quotation.  

Any request to modify the subscribed Services must be the subject of an additional Quotation.

6.2 Additional Services 

1. Maintenance

   The Client benefits from maintenance, in particular corrective and evolutive maintenance, for the term of use of the Platform. In this context, access to the Platform may be limited or suspended. 

   Concerning corrective maintenance, DIFFERS shall make its best efforts to provide the Client with corrective maintenance to correct any malfunction or bug found on the Platform.

   Concerning the evolutive maintenance, the Client benefits during the term of use of Platform from an evolutive maintenance, which DIFFERS may carry out automatically and without prior notice, and which includes improvements of the functionalities of the Platform and/or technical facilities used within the framework of the Platform (aiming at introducing minor or major extensions).

   Access to the Platform may also be limited or suspended for planned maintenance purposes, which may include the above-mentioned corrective and evolutionary maintenance operations.

   
   

2. Hosting 

   DIFFERS provides, under the terms of an obligation of means, the hosting of the Platform, as well as the data produced and/or entered by/on the Platform, on its servers or through a professional hosting provider.

   
   

3. Technical support 

   In the event of any difficulty encountered while using our Services, the Client can contact DIFFERS at the contact details above mentioned in the article "Company identity” or by creating a demand directly on the Platform.

7. Term of the Services

The Client can subscribe to the Services in the form of a subscription (the "Subscription"), which begins on the day indicated in the Quotation, subject to payment of the price in accordance with Article “Financial conditions”, for an initial period of one year, from date to date (the "Initial Period"), unless otherwise stated in the Quotation.

It is then automatically renewed for successive periods of the same duration as the Initial Period (hereinafter referred to, with the Initial Period, as the "Subscription Period(s)"), from date to date, unless notice of termination is given by either DIFFERS or the Client at the latest 1 month before the term of the current Subscription Period.

Prior to the Subscription, the Client has the possibility to benefit from a test period (the "Test Period"), the terms and the period are set out in the Quotation. At the end of the Test Period, the Client shall be deemed to subscribe to a Subscription pursuant to the terms set forth above, unless notice of termination is given by the Client by registered letter with acknowledgement of receipt, or by email, at the latest 7 days before the end of the Test Period.

8. Financial conditions

   8.1 Price

   The price of the Services, including the price of the Test Period where applicable, depends on the Subscription and is indicated in the Quotation.

   Any Subscription Period started is due in full.

   8.2 Invoice and payment terms

   Invoicing and payment terms of DIFFERS are specified in the Quotation.

   The Client guarantees DIFFERS that it has the necessary authorizations to use this method of payment.

   8.3 Payment delays and incidents

   In the event of default or delay in payment, DIFFERS reserves its right, from the day after the due date shown on the invoice, to:

   • To declare all sums owed by the Client due to DIFFERS to be in arrears and immediately payable,

   • Immediately suspend the Services in progress until full payment of the amounts due,

   • Invoice for our benefit an interest on arrears equal to 3 times the legal interest rate, based on the amount of the sums not paid on the due date and a fixed indemnity of 40 euros for collection costs, without prejudice to additional compensation if the collection costs actually incurred exceed this amount.

     
     

9. Intellectual property 

9.1 Intellectual property rights on the Platform 

The Platform is DIFFERS’s property, as are the software, infrastructures, databases, workflow and content of any kind (texts, images, visuals, music, logos, brands, etc.) that DIFFERS use. They are protected by all intellectual property rights or database producers' rights in force. The licence grants to the Client by DIFFERS does not entail any transfer of ownership.

The Client, and the Users, shall benefit from a non-exclusive and non-transferable licence to use the Platform in SaaS mode for the duration set out in the article "Term of the Services".

As an exception of the above, the parties may use our respective names, trademarks and logos and refer to our respective platforms as commercial references for the duration of our contractual relationship and 3 years thereafter.

9.2 Intellectual property on the Reports

In consideration of the payment of all fees under this Contract, DIFFERS grants the Client a worldwide, exclusive, and non-transferable license, for the duration of the copyright protection period, to use the Reports and solely for its internal business use.

10. Personal data

10.1 General dispositions

As part of their contractual relations, each party shall undertake to comply with the applicable regulations on personal data processing and, in particular, the General Data Protection Regulation GDPR (regulation EU 2016/679 of the European Parliament and of the Council of 27 April 2016) and to the French Data Protection Act of 6 January 1978 (referred together as the “Applicable Regulation”).

Each party processes personal data of contact person of the other party involved in the execution of the Terms and Conditions, as controller within the meaning of the Applicable Regulation for the purpose of managing the contractual relations between the parties and for the duration of the Terms and Conditions. These processing are carried out for the execution of the Terms and Conditions and only identification data (in particular surname, first name, email address, telephone number) are processed by the parties.

Personal data are retained during the duration strictly necessary for the purposes of managing the business relationship between parties. The staff of the party controller of the processing, its control services (notably auditor) and its processors could have access to personal data.

The processing may result in the exercise by each party’s contact person of their rights under the Applicable Regulation.

10.2 Processing of personal data by DIFFERS as a data processor

• Purpose

  The purpose of this clause is to define the conditions under which DIFFERS undertakes to carry out, on the Client’s behalf, the personal data processing operations defined below.

  
  

• Description of the processing carried out by DIFFERS

  As part of the Services available on the Platform, DIFFERS processes personal data in the name and on behalf of the Client as a data processor, while the Client acts as a data controller within the meaning of the Applicable Regulation. The characteristics of the processing are described in Appendix 1 of these Terms and Conditions.

  
  

• DIFFERS's obligations with respect to the Client

  • Data processing:

DIFFERS undertakes to process the personal data only for the purposes listed in Appendix 1 and in accordance with the Client’s documented instructions, including with regard to transfers of data outside the European Union. Where DIFFERS considers that an instruction infringes the Applicable Regulation, it shall immediately inform the Client thereof. Moreover, if DIFFERS shall process personal data and transfer them to a third country or an international organization, according to the applicable legislation of these Terms and Conditions, it shall inform the Client of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest.

• Security and data confidentiality:

DIFFERS undertakes to implement the appropriate technical and organisational measures to ensure the security and integrity of personal data, their backup and the restoration of their availability in the event of a physical or technical incident. DIFFERS ensures that the persons authorized to process the personal data hereunder have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. 

• Sub-processors: 

DIFFERS is authorized to use processors (the "Sub-Processor") listed in Appendix 2 to carry out specific processing activities. DIFFERS shall inform the Client, in writing beforehand, of any intended changes concerning the addition or replacement of Sub-Processors as listed. This information must clearly indicate which processing activities are concerned, the name and contact details of the Sub-Processor. The Client has a period of 15 calendar days from the date of receipt of this information to submit its legitimate and justifiable objections. In the absence of notification of objections after this period, the Client shall be deemed to have authorized the use of the relevant Sub-Processor. 

The Sub-Processor shall comply with the obligations hereunder on behalf of and in accordance with the Client’s instructions. DIFFERS shall ensure that the Sub-Processor provides the same sufficient warranties regarding the implementation of appropriate technical and organisational measures so that the processing meets the requirements of the Applicable Regulation. If the Sub-Processor fails to fulfil its data protection obligations, DIFFERS remains fully liable to the Client for the Sub-Processor’s performance of its obligations.

• Transfer of personal data outside the European Union:

DIFFERS is authorized to transfer personal data processed as part of these Terms and Conditions to countries located outside the European Union, if appropriate safeguards have been implemented as defined under Chapter V of the GDPR.

• Assistance and provision of information:

DIFFERS undertakes to assist the Client and to respond without undue delay to any request for information sent by the Client, whether in the context of a request for the exercise of their rights by data subjects, a privacy impact assessment, or a request made by a supervisory authority or the Client's data protection officer.

• Notification of personal data breach: 

DIFFERS shall notify the Client of any personal data breach relating to the processing operations covered by these Terms and Conditions, without undue delay after becoming aware of it and to provide the Client with all relevant information and documentation relating to such personal data breach.

• Fate of the data: 

DIFFERS undertakes at the Client’s election to delete or return personal data at the termination of these Terms and Conditions and not to keep a copy unless Union or Member State law requires storage of the personal data. 

• Documentation: 

DIFFERS shall make available to the Client, at the Client’s request, all information and documents necessary to demonstrate compliance with its obligations and allow for audits. The Client may carry out audits once a year, at its own expense to verify DIFFERS’s compliance with the obligations set forth in this article. The Client will inform DIFFERS of the audit at least 2 weeks before. DIFFERS may refuse the identity of the auditor if it belongs to a competing company. The audit shall be conducted during work hours and with the least possible disturbance for DIFFERS’s activity. The audit shall not threaten (i) technical and organizational security measures implemented by DIFFERS, (ii) security and confidentiality of data of DIFFERS’s other customers, (iii) the proper functioning and organization of DIFFERS. When possible, parties will agree beforehand on the scope of the audit. The audit report will be sent to DIFFERS as so to submit comments, which will be attached to the final version of the audit report. Each audit report will be considered as a confidential information.

• Re-use of personal data by DIFFERS:

The Client hereby authorizes DIFFERS to process the personal data collected in the context of the Services (in particular, the personal data processed through Solution chosen by the Client) for the purpose of improving the services of DIFFERS, and in particular machine learning algorithms. For these purposes, DIFFERS shall act as a data controller within the meaning of the Applicable Regulation and undertakes to comply with personal data protection principles set out in the Applicable Regulation.

• The Client’s obligations with respect to DIFFERS:

The Client undertakes to:

1. provide DIFFERS with the personal data mentioned in Appendix 1, except any improper, disproportionate, or unnecessary personal data, and except any “particular” personal data within the meaning of the Applicable Regulation, except if the processing activities justify it. In this case, the Client will have to document these justifications and to take all measures, notably of prior information, to collect appropriate consent and appropriate security measures, appropriate for such particular data;

2. collect under its liability, lawfully, fairly and in a transparent manner the personal data provided to DIFFERS, for the performance of its services, and in particular, to ensure the lawfulness of processing and the information due to data subjects;

3. maintain a record of processing activities carried out and more generally, comply with the principles of the Applicable Regulation;

4. ensure, before and throughout the processing, compliance with the obligations set out in the Applicable Regulation.

   
   

   11. Obligations and liability of the Client

11.1 Concerning the provision of information & Data

The Client must provide to DIFFERS with all documents, elements, data, and information necessary for the performance of the Services. Without prejudice to the other obligations provided for in the Contract, the Client agrees to provide DIFFERS with all necessary access to Data and, more generally, to actively cooperate with DIFFERS for the proper performance of the Services.

The Client is solely responsible for the Data it provides to DIFFERS and guarantees that it has all the necessary rights and authorizations for their use in the context of the Services. 

The Client guarantees the accuracy of the Data it provides to DIFFERS for the performance of the Services. It acknowledges that Reports are based on these Data, and that DIFFERS shall not be held liable in case of inaccuracy or incompleteness of the Data provided by the Client. It is the Client responsibility to update the Data on its servers or to upload the most current version of the Data on the Platform, as the case may be.

The Client undertakes to use the Services and the content of the Reports only for its own purposes, in accordance with its own needs and in compliance with the applicable laws and regulation.

11.2 Concerning the Client Account

The Client:

• guarantees that the information provided for the Client Account is accurate and undertake to keep it up to date,

• acknowledges that this information is proof of its identity and is binding on the Client as soon as it is validated,

• is responsible for maintaining the confidentiality and security of its login and password. Any access to the Platform using its username and password is deemed to be made by the Client.

The Client must contact DIFFERS immediately if it becomes aware that its Client Account has been used without its knowledge. The Clients recognizes and accepts that DIFFERS shall have the right to take any appropriate action in such a case.

The Client is solely responsible for creating access for Users and for setting their access rights.

11.3 Concerning the use of the Services 

The Client is responsible for its own use of the Services and any information that it may share in connection therewith. The Client is also responsible for the use of the Services and any information shared by Users. The Client agrees that the Services will be used exclusively by itself and/or Users, who are subject to the same obligations as the Client in their use of the Services.

In particular, the Client is solely responsible, and is responsible for its Users, of the way it allocates its Credits across the different the Solutions available on the Platform.

The Client undertakes to comply with the applicable laws when using the Services. The Client shall not misuse the Services for purposes other than those for which they were designed,  particular for:

• practice illegal or fraudulent activity,and in

• harm public order and morality, 

• infringe on third parties or their rights in any way whatsoever,

• violate any contractual, legislative or regulatory provision,

• carrying out any activity that may interfere with a third party's computer system, in particular for the purpose of violating its integrity or security,

• carry out any operation aimed at promoting its services and/or sites or those of a third party,

• assist or incite a third party to commit one or more of the acts or activities listed above.

The Client shall use the Services in accordance with its intended purpose and shall not:

• disassemble, decompile or reverse engineer the Platform, 

• copy, modify or misappropriate any of the DIFFERS’s property or concepts used by the DIFFERS in connection with the Services,

• adopt any conduct that interferes with or hijacks the DIFFERS’s computer systems or breaches its computer security measures,

• infringe the DIFFERS’s financial, commercial or moral rights and interests,

• give any third party (other than Users) access to the Platform for any reason whatsoever,

• market, transfer or otherwise provide access to the Services, the information hosted on the Platform or any of the DIFFERS’s property.

The Client guarantees that the User who can use the Services authorizes DIFFERS to exploit the User’s data generated by its use of the Service.

The Client indemnifies DIFFERS against any claim and/or action that may be brought against it as a result of the breach of any of the Client's or Users’ obligations. The Client shall indemnify DIFFERS for any loss suffered and reimburse DIFFERS for any sums it may have to bear as a result.

12. Obligations of DIFFERS

DIFFERS undertakes to provide the Services with due diligence, it being understood that DIFFERS is bound by a provision of means. 

12.1 Concerning the quality of the Services

DIFFERS makes every effort to provide to the Client with quality Services. For this purpose, DIFFERS carry out regular checks to verify the functioning and accessibility of the Platform and may carry out scheduled maintenance under the conditions specified in the "Maintenance" section.

However, DIFFERS is not responsible for any difficulties or temporary impossibility of access to the Platform due to:

• circumstances outside of its network (including partial or total failure of the Client’s servers),

• the failure of equipment, cabling, services or networks not included in the Services or which are not under its responsibility,

• interruption of the Services by telecom operators or internet service providers,

• the Client’s intervention, in particular through an incorrect configuration applied to the Services,

• force majeure.

DIFFERS is responsible for the operation of its own servers, the outer limits of which are the connection points.

The Client acknowledges that the Solutions may evolve and that DIFFERS does not guarantee that one Solution will always be available on the Platform.

Plus, the Client accepts that the Services are provided by DIFFERS on an "as is" basis and without warranty of any kind, express or implied. DIFFERS does not warrant to the Client (i) that the Services, which are subject to constant research to improve performance and progress, will be completely free from errors, defects or deficiencies, (ii) that the Services, being standard and not offered solely for the Client's own personal requirements, will specifically meet the Client's needs and expectations. 

12.2 Concerning the Reports

The Reports are based on the Data provided by the Client and updated by itself. The Client acknowledges that the Reports shall present objective information, subject to different interpretations. Every decision based on these Reports shall remain the full responsibility of the Client.

12.3 Concerning the service level guarantee of the Platform

DIFFERS does not have any SLA. Nevertheless, DIFFERS make its best effort to maintain 24/7 access to the Platform except in the event of scheduled maintenance as defined in the "Maintenance" section or force majeure.

12.4 Concerning the backup of data on the Platform

DIFFERS will make its best efforts to back up any data produced and/or entered by/on the Platform.

However, except in cases of proven fault on the DIFFERS’ part, DIFFERS is not responsible for loss of Client or Users’ data during maintenance operations.

12.5 Concerning data storage and security

DIFFERS provides to the Client with sufficient storage capacity to operate the Services.

DIFFERS makes its best efforts to ensure data security by implementing measures to protect the infrastructure and the Platform, to detect and prevent malicious acts and to recover data.

12.6 Concerning the use of subcontracting and the transfer of rights and obligations

DIFFERS may use subcontractors in the performance of the Services, who are subject to the same obligations as DIFFERS in the performance of their work. However, DIFFERS shall remain solely responsible to the Client for the proper performance of the Services.

DIFFERS may substitute any person who will be subrogated to all its rights and obligations under its contractual relationship. DIFFERS will inform the Client of any such substitution by any written means.

13. Limitation of liability of DIFFERS

DIFFERS’s liability is limited to proven direct damages that the Client suffers as a result of using the Services. Except for physical damage, death and gross negligence, and after sending a claim by registered letter with acknowledgement of receipt, DIFFERS’s liability hereunder shall be limited to direct damages suffered by the Client and shall be expressly limited to the total amount of fees paid to DIFFERS during the last 12 months.

In no event DIFFERS shall be held liable for indirect damages within the meaning of the case law of the French courts. Especially, DIFFERS shall have no liability for claims for lost profits, business interruption and loss of data.

14. Agreement of proof

Evidence can be established by any means.

The Client acknowledges and expressly accepts that the data collected on the Platform and DIFFERS’s computer equipment is proof of the reality of the operations carried out under these Terms and Conditions, in particular to demonstrate the reality of the Services performed and the calculation of their price.

15. Confidentiality

Each party undertakes to keep strictly confidential all documents and information of a legal, commercial, industrial, strategic, technical or financial nature relating to the other party or held by it which comes to its knowledge in connection with the conclusion and performance of these Terms and Conditions and not to disclose them without the prior written consent of the other party.

This obligation does not extend to documents and information:

1. of which the party receiving them was already aware.

2. which were already public at the time of their communication, or which would become public without breach of these Terms and Conditions

3. which would have been lawfully received from a third party.

4. the communication of which is required by the judicial authorities, according to laws and regulations, or in order to establish the rights of a party under these Terms and Conditions.

This obligation of confidentiality extends to all employees, collaborators, trainees, managers, and agents of each party as well as their affiliated counsel and co-contractors, to whom confidential documents or information may be transmitted only if they are bound by the same obligation of confidentiality as provided herein.

This obligation of confidentiality shall continue to apply for a period of 3 years from the expiration or termination of the Subscription, whatever the reason for the termination.

16. Force majeure

In accordance with the provisions of article 1218 of the French Civil code, no party may be held liable for a failure to perform its contractual obligations if this failure is due to an event beyond the control of the Parties and constitutes force majeure.

Force majeure is understood to mean the occurrence of an event that has the characteristics of unpredictability, irresistibility and exteriority to the Parties that are usually recognised by French law and courts. This includes strikes, terrorist activities, riots, insurrections, wars, governmental actions, natural disasters or a defect attributable to a third-party telecommunication provider.

The party prevented from doing so must inform the other party as soon as possible, indicating the nature of the case of force majeure. The Parties shall meet in order to determine together the most appropriate means of mitigating, if possible, the consequences of the event(s) constituting force majeure.

If the case of force majeure lasts for more than one month, each party may terminate the Contract, as of right, without any judicial formality, without prior notice and without any right to compensation of any kind whatsoever, by any written means with immediate effect.

If, as a result of a case of force majeure, the affected party is prevented from fulfilling only part of its contractual obligations, it shall remain responsible for the performance of those obligations that are not affected by the case of force majeure, as well as for its payment obligations.

As soon as the case of force majeure ceases, the party prevented shall immediately inform the other party and resume performance of the affected obligations within a reasonable period.

17. Termination of Services

The Subscription must be denounced at the latest 1 month before the end of the Subscription Period, by the Client, by sending to DIFFERS a request to the contact details mentioned in the article "Company identity“.

The Client has no longer access to its Client Account once the Services have ended.

Any Subscription Period started is due in its entirety.

18. Sanctions in the event of breach

The payment of the price of the Services as well as the obligations set out in the article "Obligations of the Client" are essential obligations.

In the event of a breach of these obligations, DIFFERS:

• suspend or terminate the Client access to the Services,

• publish on the Platform any information message that DIFFERS deems useful,

• send to the Client a registered letter with acknowledgement of receipt to:

  • terminate the contractual relationship, the termination taking effect on the day of receipt or first presentation of this letter,

  • or to ask to the Client to remedy the breach within a maximum of 15 calendar days. Termination will take effect at the end of this period if the breach is not remedied.

• Termination will result in the deletion of the Account,

• notify and cooperate with any competent authority and provide it with any information relevant to the investigation and prosecution of illegal or unlawful activities,

• initiate any legal action.

These sanctions are without prejudice to any damages DIFFERS may claim from the Client.

14. Amendment of the Terms and Conditions

DIFFERS may change its Terms and Conditions at any time and will notify the Client in writing (including by email) at least 45 days calendar day before they come into effect.

The modified Terms and Conditions are applicable when the Client renews its Subscription. 

If the Client does not accept these modifications, it must terminate its Subscription in accordance with the terms and conditions set out in the article "Termination of Services".

If the Client uses the Services after the amendment of the Terms and Conditions comes into effect, DIFFERS will assume that the Client has accepted them.

15. Applicable law and jurisdiction

The Terms and Conditions are governed under French law.

In the event of a dispute between the Client and DIFFERS, and in the absence of an amicable settlement within 1 month of the first notification, the dispute shall be submitted to the exclusive jurisdiction of the courts of Paris (France), unless otherwise provided for by mandatory provisions.

APPENDIX I: DESCRIPTION OF THE PROCESSING

CARRIED OUT BY DIFFERS ON BEHALF OF THE CLIENT