These general terms and conditions are agreed between the INFOTRADE company (hereinafter “INFOTRADE”), a simplified joint stock company under French law with a capital of 69,387 euros, registered with the Trade and Companies Register of Nantes under number 508965993 and whose registered office is at 3 Boulevard Salvador Allende – 44100 Nantes on one hand, and the Client as defined in the Quote on other hand.

 

Article 1 – Glossary

Sparklane Database: The database which is the property of INFOTRADE and is protected in accordance with Articles L.341-1 and following of the French Intellectual Property Code. The database consists of information about a large number of companies based in the European Union for which it covers in particular their identification, financial and legal information, the full and direct contact information of people who may be contacted in such companies and the life events of the companies (moving, merger, transfer, etc.).
Client: The Client is defined in the Quote as the natural or legal person who undertakes, by signing the Contract, to enter in a contractual relationship with INFOTRADE.
Contract: These refers general terms and conditions and the Quote.
Client Data: All data which belong exclusively to the Client and made available to INFOTRADE under the terms of the Contract.
Sparklane Data: All data which belong exclusively to INFOTRADE, organized in the Sparklane Database and made available to the Client under the terms of the Contract.
Control data: The “sentinel” email addresses voluntarily integrated into the Sparklane Database by INFOTRADE, and unknown by the Client. These email addresses are a mean of monitoring and warning in case of an unauthorized use of the Sparklane Database.
Entities: Any third party whose Client holds, directly or indirectly, the majority of the share capital or whose share capital is majority owned by an entity identical to that which holds the majority of its share capital.
Private Area: The digital area accessible via the Site, by the User through a Username. By connecting to its Private Area, the Client accesses the Software allowing it to regulate and define its needs when querying the Sparklane Database.
Username: The codes, including a login and password, required by the Client to access the Private Area. The Username is unique, personal and confidential. Any use of the Username is deemed to be done by the Client. The Client is responsible to ensure the confidentiality of the Usernames.
Software: The software solution, property of INFOTRADE, which allows the Client to target its prospects thanks to a predictive algorithm. The Software is based on the query of the Sparklane Database. The Software is accessible in SaaS (Software as a Service) mode via the Private Area.
Additional Services: All customized services others than the access to the Sparklane Database and the Software, provided by INFOTRADE to the Client according to the Quote, such as the cleaning of the databases of the Client, the organization of commercial and marketing promotional operations on behalf of the Client.
Service: The services defined in the Quote and performed by INFOTRADE (access to Sparklane Database, access to the Software and / or Additional Services).
Site: The website www.sparklane.com or any other website that is INFOTRADE’s property and having a personal and secure access, via the Username, in the Private Area.
User: Any person designated by the Client under its sole responsibility and having access to the Private Area via a Username.

 

Article 2 – Purpose of the Contract

The purpose of the Contract is to organize the contractual relationship between the Client and INFOTRADE in the performance of Services.

In particular, this Contract defines the conditions under which INFOTRADE, on one hand, provides to the Client a personal, non-assignable and non-exclusive license to use the Software and the Sparklane Database as part of the Services and, on the other hand, also allows the Client to export the Sparklane Data it chooses and to insert them into its information system.

 

Article 3 – Intellectual Property

3.1 – Software License

The Software is an original creation, thus receiving protection under copyright law (Article L. 111-1 of the French Intellectual Property Code). INFOTRADE is and remains owner of all intellectual property rights thereof. This Contract results in no transfer of intellectual property rights for the benefit of the Client.
INFOTRADE grants the Client, for the duration of this Contract and in strict compliance with the conditions of performance of the selected Services, a non-assignable, non-exclusive, worldwide and personal license to use the Software.
The Client is in particular prohibited :

  • To carry out any form of reproduction or representation of the Software or its documentation;
  • To alter or obscure in any way whatsoever the trademarks, distinctive signs, authorship references attached to the Software;
  • To modify or attempt to circumvent any Software protection device.

The Client is not permitted to invoke the rights referred to in Article L.122-6-1 of the French Intellectual Property Code without any prior written authorization from INFOTRADE.
The Client is not authorized to contract sublicenses of the Software.

3.2. Sparklane Database License

This Contract results in no transfer of intellectual property rights relating to the Sparklane Database for the benefit of the Client.
INFOTRADE grants the Client, for the duration of this Contract and for the sole purpose of its business, a non-assignable, non-exclusive, worldwide and personal license to use the Sparklane Database.

This license is strictly limited to:

  • a right to access the Sparklane Database
  • a right to extract the Sparklane Database;

The access right and the extraction right are strictly limited to the results displayed by the Software to the Client. The Client is not authorized to contract sublicenses of the Sparklane Database.

3.3. Updates of the Sparklane Database

The Client benefits from any update of the Sparklane Database, for the duration of the Contract and according to, in particular, the updates of Sparklane Data, the volume of the available Sparklane Data and subject to the right to object exercised from natural persons whose data are collected in the Sparklane Database.

 

Article 4 – Access to the Software and the Sparklane Database

4.1. Access to Software and Sparklane Database

The Software is available in SaaS mode via the Private Area.
Access to the Software and the Sparklane Database is secured through the granting, to the Client, of a Username. The use and preservation of Usernames are under the sole responsibility of the Client.

4.2 Maintenance

INFOTRADE reserves the right to close access to the Software and / or the Sparklane Database in order to ensure maintenance of them as well as the maintenance of the hardware and software required for their hosting. INFOTRADE undertakes to make its best efforts to perform maintenance outside peak hours.

INFOTRADE undertakes to inform the Client in advance of any interruption of access to the server, of its fact or of which it may be aware.

4.3 Availability

INFOTRADE undertakes to provide an availability of access to the Software in the range of 99.5% of the time, calculated over a twelve (12) months period, excluding the maintenance period for the Software and the Sparklane Database and the force majeure cases as defined in the article 16.

 

4.4 Client Data

Software can be used by the Client as a customer relationship management software (CRM).
In this case, the Client Data remain its sole property. In particular, the Client is sole responsible for the use of Client Data and the role of INFOTRADE is limited to host the Client Data.

 

Article 5 – Protection of personal data

5.1 The Sparklane Database contains personal data for which INFOTRADE is data controller with the meaning of the French Law No. 78-17 of January 6, 1978 relating to personal data (“French Data Protection Act”) and the EU regulation No. 2016/679 of April 27, 2016 (General Data Protection Regulation or “GDPR”).

INFOTRADE has taken all the necessary diligences to respect its obligations as data controller and to manage the relationship with the natural persons whose data are collected in the Sparklane Database.
The Client is recipient of these personal data and undertakes to use them in accordance with the provisions of article 11 of the Contract.

5.2 In the frame of the Services, INFOTRADE may be data processor with the meaning of the regulations mentioned in article 5.1 when INFOTRADE processes the Client Data on behalf of the Client and when the Client Data contain personal data. In this case, INFOTRADE undertakes:

  • To process these data under the sole and documented instructions from the Client to which INFOTRADE will comply;
  • To disclose the personal data only to the persons who need to access them for the performance of the Services, subject these persons have previously executed a confidentiality agreement
  • To notify promptly the Client of the notifications and requests from any data subject, any supervisory authority for personal data protection or any judicial authority, for which the Client is responsible;
  • To provide to the Client any reasonable information and assistance in order the Client can comply with the rights of data subjects, including the access right, and with the requests from the relevant supervisory authority or in order to facilitate rapid resolution of any matter arising from this article;
  • To respect the legal procedures and the procedures decided by the Client relating to the notification of personal data breach and to notify immediately the Client, in writing and in details, in case of a breach or a suspicion of a breach of any obligations under this article, in order the Client can respond and prevent its liability;
  • To apply and update if necessary the technical and organizational security measures in order to protect all the data from any loss, destruction, harm, unauthorized disclosure or alteration, illegal and accidental, and provide the Client, on its demand, a writing and detailed description of these measures;
  • To ensure that the measures allow a quick recovery of data in a time frame and a format agreed between the Parties;
  • To transfer to data to a third country with the priori written authorization from the Client;
  • To inform the Client from any modification relating to the addition or the replacement of a processor which process the personal data

At the end of the Contract, whatever the cause, INFOTRADE will return the personal data to the Client.

Article 6 – Additional Services

INFOTRADE may, on express request of the Client, provide Additional Services. In order to do this, INFOTRADE shall issue a technical and commercial proposal describing in particular the content of such Additional Services, the price, the time period and any other relevant information. If the Client agrees, it will sign the Quote prepared by INFOTRADE, replacing the said proposal.

 

Article 7 – Effective Date and Contract duration

The Contract is effective as of the signing of the Quote by the Client, unless a different date is expressly mentioned in the Quote. This Contract is concluded by a fixed term of one (1) year. The Contract is automatically renewed by tacit agreement for the same term.
The automatic renewal of the Contract may be stopped at each anniversary date by either Party upon sending a prior notice by registered letter with acknowledgment of receipt three (3) months before the anniversary date of the Contract.

 

Article 8 – Suspension – Termination

8.1. INFOTRADE reserves the right to suspend the execution of this Contract, without the Client being able to demand any compensation, in cases where:

  • a payment incident is registered against the Client;
  • an act or an attempt of act of unauthorized use of the Software or the Sparklane Database has been established by INFOTRADE and is attributable to the Client

The suspension of the Services – the Private Area will be inaccessible – will take effect within eight (8) calendar days from the date of INFOTRADE sending a formal notice, by registered letter with acknowledgment of receipt, unless particular emergency requires a shorter period.
During the period of suspension, the contractual provisions not affected by the suspension shall remain in effect.
The suspension will be maintained for thirty (30) days. By the end of this new period, if the Client does not respect its obligations, INFOTRADE can terminate the Contract without any other formalities.
The suspension shall not incur the payment of damages from INFOTRADE to the Client.

8.2. The Contract may be terminated by a Party in case of a breach of the Contract by the other Party

The termination will be effective forty-five (45) days after the first presentation by the postal services of a formal notice by registered letter with acknowledgement of receipt to the defaulting Party, which is remained ineffective. The notice shall indicate the reason of the termination and the intention of the terminating Party to apply this termination clause.
The Parties expressly acknowledge and agree that this termination clause may be applied

  • By INFOTRADE in case the Client breaches its obligations under article 3 (Intellectual Property), 10 (Financial terms), 11 (Obligations of the Client) and 13 (Client’s warranty);
  • By the Client in case INFOTRADE breaches its obligations under article 4 (Access to the Software and to the Sparklane Database) and 12 (Obligations and liability of INFOTRADE

Article 9 – Effect of termination of the Contract

9.1. At the end of the Contract, regardless of the cause:

  • The Client may not use the Software anymore. The Usernames shall be disconnected. Any continued use of the Software by the User shall be qualified as counterfeiting;
  • The Client may no longer use the Sparklane Database;
  • The Client may no longer use the contacts issued from the Sparklane Data with whom the Client did not interact in writing for the duration of the Contract;
  • The Client undertakes, within a period of seven (7) days from the end of the Contract, to destroy the Sparklane Database elements in its possession;
  • The amounts paid to INFOTRADE under the current contract period shall remain acquired and the sums due from the Client shall become immediately due;
  • INFOTRADE will return to the Client the Client Data.

9.2. In the event INFOTRADE notices, in particular thanks to the Control Data, a continued use of the Sparklane Database after the termination of the Contract, the Client shall be liable to pay, automatically and without any prior notice an indemnity already expressly set at fifty thousand (50,000) euros. This indemnity constitutes incitement for the Client to respect the article 9. The payment of the indemnity does not discharge the Client and is without prejudice to any legal recourse in case of higher indemnity.

Article 10 – Financial terms and payment methods

10.1. Financial terms and payment methods are defined in the Quote.

10.2. By express agreement, and except report requested in time and granted by INFOTRADE specifically and in writing, the total or partial failure to pay, on the payment date, any amount due under the Contract shall entail automatically, without prior notice and without prejudice to the ability of INFOTRADE to suspend the Contract according to article 8.1:

  • invoicing the Client of a late interest equal to three (3) times the legal interest rate, taking into account the last rate published on the invoicing date and the interests being due solely because of the expiry of the contractual term. Interest is calculated pro rata temporis over the period of one (1) month
  • the immediate payment of all sums due by the Client under the Contract, regardless of the expected payment method;

Furthermore, in case of payment delay, the Client is legally obliged to pay a lump sum for recovery costs in the amount of forty (40) euros.

10.3. The Parties expressly acknowledge and agree that the Client cannot reduce proportionally the price of the Services if the Client considers to have noticed a breach by INFOTRADE of any of its obligations under the Contract.

 

Article 11 – Client Obligations

11.1. The Client has, as of the start of the Services and for the duration of the Contract, a personal, non-exclusive, non-assignable and worldwide right to use the Sparklane Data obtained thanks to the Software, for the sole purpose of its activity. This right of use is strictly limited to:

  • a right to consult the Sparklane Data,
  • a right of reproduction of the Sparklane Data, on paper or electronically;
  • a right of extraction of Sparklane Data for the sole purpose of performing prospection actions and commercial and marketing promotional operations under the conditions described in Article 11. 2 below and subject to maintain the INFOTRADE’s identifier attached to each Sparklane Data.

11.2. When the Client uses Sparklane Data which are also personal data, the Client is a data controller with the meaning of the regulations mentioned in article 5.1 of the Contract. As data controller, the Client commits:

  • To use the Sparklane Data to the sole purposes described in article 11.1 and undertakes in particular to not assign the Data, whether for payment or not;
  • To not transfer the Sparklane Data outside the European Economic Area;
  • In case of promotion, to exclusively promote its products or services or those of its Entities, excluding any products or third party services, to recipients whose professional activity and / or duties are in direct connection with the promotional message and to clearly identify the promotional nature of the messages sent;
  • for commercial promotional messages sent by email, fax or by telephone (telemarketing), to inform the promotional message recipients of their right to object (“opt-out”) or consent (“opt-in”) to receiving promotional messages;
  • To allow the exercise, by the data subjects, of the rights of access, rectification, objection, erasure, portability and limitation;
  • To implement a free mechanism for recipients of promotional messages, to instantaneously take into account the requests for the exercise of above mentioned rights;
  • To insert in all commercial promotional messages by electronic mail a hyperlink to allow message recipients to exercise their above mentioned rights and to unsubscribe from the mailing list;
  • To immediately stop using email addresses having been subject of an object and/or erasure request;
  • To respect any further obligation of data controller under the GDPR

11.3. The Client undertakes to comply strictly with the instructions given by INFOTRADE, particularly those relating to the use of the Private Area and Software and to relay them to Users.

The Client undertakes to comply with its obligation to cooperate with INFOTRADE especially when describing its difficulties in using the functionalities of the Software or during requests for information by INFOTRADE.

11.4. The Client is the sole judge, given its unique knowledge of its strategy and business activities, of the use of Sparklane Data; as such, INFOTRADE is not responsible for the relevance of the choices made by the Client when using the Software and Sparklane Database.

 

Article 12 – Obligation and liability of INFOTRADE

12.1. In general, the performance of Services and Additional Services by INFOTRADE is based on an obligation of means so that INFOTRADE will use the best means to keep the Sparklane Database up to date and complete, especially considering the obvious fluctuation of information and the wide variety of sources.

12.2. INFOTRADE makes no commitment in respect to the conduct or outcome of the sales promotion operations (e.g. return rate level) carried out by the Client with the Sparklane Database and shall not, therefore, be held responsible in this regard.

12.3. INFOTRADE cannot be held responsible in case of force majeure as described in article 16.

12.4. It is expressly agreed between the Parties that the liability of INFOTRADE, if the breach of INFOTRADE is demonstrated, does not cover indirect damages possibly incurred by the Client, it being specified that Parties consider in particular as indirect damages: operating losses, loss of profit, commercial or economic loss, increase in overhead.

12.5. It is expressly agreed that if INFOTRADE’s liability was judicially recognized in the performance of the Contract, the Client may not claim benefits and damages other than the reimbursement of payments made by them under this Contract, capped at the amount paid during the last year of contractual relationship.

12.6. The Client may not:

  • in case of a breach by INFOTRADE of any of its obligations under the Contract, perform the obligations or having them performed by a third party at INFOTRADE’s expense;
  • suspend the performance of its obligations even if it becomes evident for him that INFOTRADE will not perform the Services and the Additional Services in accordance to the Contract.

12.7. Any action against INFOTRADE under the Contract must be conducted by the Client. However, in the event of an intervention or action carried out directly by an Entity against INFOTRADE, the Client will be responsible for the Entity’s compliance with the terms of the Contract, in particular with this article 12, and will take care of any request and / or sentence to the benefit of an Entity, which would exceed INFOTRADE’s obligations to the Client under the Contract.

 

Article 13 – Client’s warranty

The Client warrants INFOTRADE against any claim or action that may be taken by a third party against INFOTRADE under the Contract and in particular to an action related to misuse of Sparklane Data by the Client or in the event of non-compliance of legal and regulatory rules for the use of personal data. This warranty covers in particular any attorney fees required to defend the interests of INFOTRADE.

 

Article 14 – Confidentiality

The Parties agree to consider as strictly confidential the data and / or information, in any form whatsoever and / or medium, which will have been expressly qualified as confidential when submitted to the other Party, it being required that the Disclosing Party provide proof that it has so qualified said data and / or information (hereinafter Confidential Information). The Parties expressly acknowledge and agree that Client Data and Sparklane Data are Confidential Information.

Each Party undertakes to take the same protective measures concerning the Confidential Information as with its own confidential information and, in particular, not to disclose them to third parties in any form or medium, for any reason whatsoever and to require any employee or third party likely to know the Confidential Information for purposes of performing the Contract, the same commitment to confidentiality.

This confidentiality undertaking will last for the duration of the Contract and for five (5) years after its termination, regardless of the cause.

 

Article 15 – Amendments to the Contract

INFOTRADE reserves the right to modify at any time the provisions of this Contract. The Client will be made aware of any modification by email sent to the address specified by the Client in its Private Area or Quote and the modifications will be effective as of the next anniversary date of the Contract.
If the Client disagrees, it may, within one (1) month after the sending of the aforementioned email, and in any event prior to the Contract anniversary date, request that the Contract not be renewed on the next anniversary date. In this case, the Client will not need to comply with the prior notice period of three (3) months under article 7 of the Contract.

 

Article 16 – Force Majeure

The obligations of the Parties will be automatically suspended in case of force majeure with the definition of article 1218 of the French Civil Code. The Parties agree to consider as force majeure cases, among others, the following situations:  earthquakes, fire or flooding of the business facilities of either of the Parties, storm, blocking of means of transport for any reason whatsoever, complete or partial strikes, internal or external to the company, company lockout, the total or partial, regional, national and international blockage of telecommunications and the total or partial, regional, national and international blockage of computer networks.

The Party noting the event will promptly notify the other Party of its inability to perform its obligations and justify it. The obligations of the suspension will in no case be a cause of liability for non-performance of the obligation in question or lead to the payment of damages or penalties.

However, upon the end of the event suspending their reciprocal obligations, the Parties shall make every effort to resume as quickly as possible the normal performance of their contractual obligations.

In the case of this event persisting for a period exceeding ninety (90) days, one or the other Party may, without liability, terminate the Contract by notifying the other Party of this decision by registered letter with acknowledgment of receipt, neither Party having the right to claim for any indemnity.

 

Article 17 – Subcontracting – Assignment of Contract

17.1 The Client acknowledges and agrees that INFOTRADE has the right to subcontract part or all of its obligations under the Contract, under its own liability

17.2 None of the Parties is authorized to assign its status as party to the Contract to a third party without the prior written consent of the other Party. In case of assignment, it shall respect the conditions of the articles 1216 to 1216-3 of the French Civil Code

By way of derogation, each Party may, subject to prior notice to the other Party and under its sole responsibility, freely assign its status as party to the Contract to any third party in which it holds, directly or indirectly, the majority of the share capital.

 

Article 18 – General Provisions

18.1. The Contract constitutes the entire agreement between the Parties as to its purpose. It replaces any previous written or verbal proposals or agreements between the Parties and excludes the application of any other document such as, for example, the Client’s terms of purchase.

18.2. In the event that any provision of this Contract be declared ineffective or void, in any way and for any reason whatsoever, it would be deemed unwritten and shall not invalidate the other provisions.

18.3. Any waiver of either of the Parties to invoke any of its rights under the terms of the Contract shall constitute a waiver of those rights in the future.

18.4. The Parties agree that any correspondence between them under the Contract by email shall be deemed written correspondence and will be valid as evidence that can be produced in court.

18.5. INFOTRADE is expressly authorized to reproduce and mention the name, brand or the logo of the Client as a reference in the course of commercial dealings with third parties, including prospects.

18.6. In case of translation of the Contract, only the French version shall prevail.

18.7. In case of difficulty of interpretation, the section headings will not be taken into account.

18.8. Each Party is an independent contractor and nothing in this Contract shall create a company of fact or law, a joint venture, a mandate, a franchise agreement or a sales representative or salaried relationship between the Parties.

 

Article 19 – Choice of Law

This Contract is governed exclusively by French law.
Any dispute concerning the interpretation, performance and / or termination of this Contract must be subject of an attempt by the Parties to reach an amicable solution.
In the absence of an amicable solution, the litigation will be the exclusive competence of the Commercial Court of Nantes, except for cases where the dispute is within the exclusive jurisdiction of the Tribunal de Grande Instance of Rennes under the provisions of the French Intellectual Property Code, notwithstanding pluralities of defendants.