These general terms and conditions are entered into by the company INFOTRADE (hereinafter ‘INFOTRADE’), a simplified joint stock company (société par actions simplifiée) with a capital of €570,000, entered in the Trade Register of Nantes under number 508 965 993, whose headquarters is located Boulevard Salvador Allende – 44100 Nantes, and the Client, as stated in the Estimate.
Article 1 – Termination
Sparklane Database: A database belonging to INFOTRADE and protected under articles L341-1 et seq. of the French Intellectual Property Code. The database is made up of information on a large number of France-based companies for which it presents, in particular, their identification details, financial and legal information, full and direct contact details of the people who can be contacted within those companies and the major events in the lives of the companies (moves, mergers, take-overs etc.).
Client: The Client is defined in the Estimate as the legal or natural person who, in signing the Contract, undertakes to cooperate with INFOTRADE.
Contract: refers to the document or information handed to the Client describing the criteria for segmenting and counting the potential of companies and trade contacts targeted by the Client (company characteristics such as sector, geographical area, company size and number of companies) and any additional Services required. These items are listed in the purchase order.
Estimate: A contractual document signed by the Client, setting out the Services chosen by the Client based on their needs and the specific arrangements for meeting them. It may take the form of a purchase order or a technical and commercial proposal. These terms and conditions of use are enclosed with the Estimate as an appendix.
Data: All data belonging exclusively to INFOTRADE arranged in a database (Zebaz Database) and made available to the Client under the Contract.
Control data: ‘Sentinel’ email addresses voluntarily incorporated in the Zebaz Database by INFOTRADE, and are unknown to the Client. These email addresses are a means of monitoring for unauthorised use of the Sparklane Database and issuing warnings.
User Space: Digital space accessible via the Site by the User with Login Details. By logging into the User Area, the Client gains access to the Software, enabling them to frame and define their needs in consulting the Sparklane Database.
Login Details: Codes making up a user name and password needed by the Client to access their User Area. The Login Details are unique, personal and confidential. Any use of the Login details is deemed to have been preformed by the Client. As such it is the Client’s responsibility to ensure the confidentiality of Login details.
Software: Software solution enabling the Client to access the Sparklane Database and adjust the way in which they consult it by creating lists of companies to track or lists of criteria, restricted by the permissions attached to the selected Services. The Software is accessible in SaaS mode (Software As A Service) through the User Area.
Additional Services: All customised services provided by INFOTRADE to the Client based as stated in the Estimate.
Service: Services defined in the Estimate and delivered by INFOTRADE (access to the Sparklane Database, access to the Software and/or Additional Services).
Site: The website www.sparklane.com or any other Website belonging to INFOTRADE and involving personal and secure access (Login details) to the User space.
User: Person with Login details who is under the Client’s sole responsibility and designated as having access to the User space.
Article 2 – Purpose of the Contract
The purpose of the Contract is to provide a framework for contractual relations between INFOTRADE and the Client in the context of Service delivery.
More specifically, this Contract sets out the conditions under which INFOTRADE provides the Client with a non-transferable and non-exclusive license for personal use of the Software and the Sparklane Database in the context of Service delivery and grants the Client authorisation to export the Data they choose to insert into their information system.
INFOTRADE is not the Client’s host and as such does not retain the Client’s data.
Article 3 – Intellectual Property
3.1 – Software User License
The Software is an original creation and as such benefits from copyright protection (article L. 111-1 of the French Intellectual Property Code). INFOTRADE is and remains the holder of all related intellectual property rights. No intellectual property rights are transferred to the Client under the terms of this Contract.
For the duration of this Contract and in strict compliance with the delivery terms for the selected Services, INFOTRADE grants the Client a non-transferable and non-exclusive license for personal use of the Software, in the European Union member states.
In particular, the Client is strictly prohibited from:
- producing any kind of reproduction or representation of the Software or its documentation;
- altering or concealing in any way the trademarks, distinctive signs or authorship information affixed to the Software;
- modifying or seeking to circumvent any protective device on the Software.
The Client is not authorised to invoke the rights under article L.122-6-1 of the French Intellectual Property Code without having first notified INFOTRADE.
The Client is not authorised to sub-license the Software and Sparklane Database.
3.2. Sparklane Database User License
No intellectual property rights related to the Sparklane Database are transferred to the Client under the terms of this Contract.
For the duration of this Contract and solely for business use, INFOTRADE grants the Client a non-transferable and non-exclusive license for personal use of the Sparklane Database, in the European Union member states.
This license is strictly limited to:
- a right to consult the Sparklane Database;
- a right to reproduce the Sparklane Database in paper or electronic format;
- a right to extract any or all of the Sparklane Database.
The Client is not authorised to sub-license the Sparklane Database.
3.3. Sparklane Database Updates
The Client benefits from updates to the Sparklane Database for the duration of the Contract subject to, in particular, data updates, the volume of data available and opt-outs.
Article 4 – Access to the Software and the Sparklane Database
4.1. Access to the Software and the Sparklane Database
The Software is accessible in SaaS mode through the User Area.
Access to the Software and the Sparklane Database is secure due to the use of Login details given to the Client. The Client alone is responsible for using and storing their Login details.
INFOTRADE reserves the right to shut down access to the Software and/or the Sparklane Database for maintenance purposes and also for the maintenance of the hardware and software required to host it. INFOTRADE undertakes to do its utmost to carry out maintenance outside of periods of high demand. INFOTRADE undertakes to notify the Client in advance of any server downtime caused by or brought to the attention of INFOTRADE.
The Service Provider undertakes to offer Software access availability for 99.5% of the time calculated over a twelve month period, excluding Software and Sparklane Database maintenance periods and excluding force majeure events as described under the article ‘Force majeure’. INFOTRADE undertakes to notify the Client in advance of any server downtime caused by or brought to the attention of INFOTRADE.
4.4 Adding to the Sparklane Database
4.4.1 The Client may update the personal data of contacts in the Sparklane Database by filling in the relevant fields in the Software.
4.4.2 The Client undertakes to check the accuracy of information transmitted to INFOTRADE by this means.
In so doing the Client acts under their own responsibility and shall not:
- transmit the same trade contract to INFOTRADE more than once;
- transmit any information liable to damage INFOTRADE’s interests.
4.4.3 The trade contacts thus communicated by the Client shall remain in INFOTRADE’s possession indefinitely including in the event that contractual relations are terminated, whatever the grounds.
Article 5 – Data Protection
In the performance of the Contract, INFOTRADE may retain personal data. In accordance with the French Data Protection Act of 6 January 1978 (Loi n°78-17 relative à l’informatique, aux fichiers et aux libertés) INFOTRADE has registered this collection of personal data and any processing to which they may be subject to the French Data Protection Agency (Commission Nationale de l’Informatique et des Libertés).
Article 6 – Additional Services
INFOTRADE may, at the express request of the Client, provide additional Services. To do so, INFOTRADE shall issue a technical and commercial proposal describing in particular the scope of additional Services, the price, the deadline and any other relevant aspects. The Client shall confirm their agreement by signing the Estimate drawn up by INFOTRADE, containing the aforementioned proposal.
Article 7 – Effective Date and Contract Term
The Contract shall run from the date on which the Estimate is signed by the Client, unless a different date is expressly stated in the Estimate.
This contract is entered into for a fixed one (1) year term. The Contract is subject to automatic renewal for an identical term.
The automatic renewal of the Contract may be interrupted on each anniversary date by either Party, by sending notice by recorded delivery signed-for letter three (3) months before the Contract anniversary date.
Article 8 – Early Termination
This Contract may be terminated early by either Party in the event that any of the obligations within are not met.
Early termination shall become effective forty-five (45) days after the date on which the notice, stating the grounds for the termination and the intention of invoking this termination clause, sent by recorded delivery, signed-for letter, is presented by postal services to the defaulting Party for the first time, and upon which that Party either fails to act, or acts only partially.
Nevertheless, INFOTRADE reserves the right to suspend the performance of this Contract without the Client being able to claim any compensation, in the event that:
- a payment incident is recorded against the Client;
- INFOTRADE becomes aware of the unlawful use, or attempted unlawful use of the Software or Sparklane Database.
The suspension of the Service(s) in question – with the User space inaccessible – shall take effect 8 calendar days from the date on which INFOTRADE sends the Client notice by recorded delivery, signed-for letter. For the duration of the suspension, the contractual provisions not subject to the suspension remain in force.
Article 9 – Consequences of the End of the Contract
9.1. After the Contract comes to an end, whatever the reason:
- the Client may no longer use the Software. The Client’s Login details will be deactivated. Any continued use of the Software by the User will be considered as infringement;
- the Client may no longer use the Sparklane Database and/or data extracted from the Sparklane Database and/or reproduced for any purpose. Any continued use of the Sparklane Database by the Client will be considered as infringement;
- the Client undertakes to destroy the components of the Sparklane Database in their possession within seven (7) days;
- INFOTRADE shall retain any sums paid during the contractual period and any outstanding sums owed by the Client shall become immediately due.
9.2. Should INFOTRADE become aware [in particular thanks to the Control Data] of any continued use of the Sparklane Database at the end of the Contract, compensation, under the penal clause, hereby set at fifty thousand (50 000) Euro shall become immediately and automatically payable by the Client, without prejudice to any legal proceedings in the event of more substantial damages.
Article 10 – Payment Terms
10.1. The payment terms are set out in the Estimate.
10.2. Notwithstanding an extension requested in a timely fashion and specifically agreed by INFOTRADE in writing, failure to pay any sum owed in full and on time shall, automatically and without prior notice, result in the following:
- any outstanding sums owed by the Client under the terms of the Contract becoming immediately payable, whatever the intended mode of payment;
- the Client to be invoiced late payment interest equal to three times the official interest rate, at the latest rate published on the invoice date, with the interest payable simply as a result of the end of the contractual term. Interest is calculated on a prorata temporis basis over a one-month period.
Moreover, in the event of late payment, a one-off payment of 40 Euros to cover the costs of recovery is automatically payable. These costs may be invoiced against receipts (e.g. bailiff fees, lawyer’s fees etc.).
10.3. Indexation – Prices will be automatically adjusted every year according to the Syntec Index. The reference index taken as a baseline for this indexation will be the index for the month known on the day of adjustment in comparison with the index of the same month the previous year.
Article 11 – Client Obligations
11.1. From the date on which the Services are made available and for the duration of the Contract, within the European Union, the Client has a personal, non-exclusive and non-transferable license to use the Sparklane Database for business purposes only. This license is strictly limited to:
- a right to consult the Data,
- a right to reproduce the Sparklane Database in paper or electronic format;
- a right to extract any or all of the Data on the Trade contacts for the sole purpose of conducting marketing campaigns under the conditions described under article 11. 2 below.
In exercising their right to use the Software described under article 11.1, the Client is responsible for processing within the meaning of article 3-I of the French Data Protection Act of 6 January 1978 (la loi relative à l’informatique, aux fichiers et aux libertés) and it therefore falls to the client to take all necessary measures in this regard.
11.2. In carrying out the marketing campaigns referred to under article 11. 1 above, the Client undertakes:
- to promote exclusively their own products or services or those of their Entities, and no third party products or services, to recipients whose business activities and/or functions relate directly to the promotional message.
Moreover, the Client undertakes to run these promotional campaigns in accordance with the relevant legal framework and in doing so:
- to clearly identify the promotional nature of the messages sent;
- in the case of marketing campaigns by email, fax or telephone (telemarketing), to notify recipients of their right to access and amend their Personal Data in the Client Database and their right to ‘opt out’ or ‘opt in’ to receiving marketing messages;
- to put in place a free and instantaneous mechanism for the recipients of marketing messages to immediately act on requests for access, amendments and/or opt-outs;
- to insert in all marketing emails the hypertext link provided by INFOTRADE enabling recipients to opt out;
- to cease using email addresses as soon as the recipient opts out.
11.3. The Client undertakes to carefully follow the instructions given by INFOTRADE, particularly those relating to the use of the User space and the Software and to pass these on to Users.
The Client undertakes to honour their obligation to cooperate with INFOTRADE in particular in describing any difficulties in using the Software’s functionalities or in submitting information requests to INFOTRADE.
11.4. Given their unique knowledge of their strategy and business, the Client alone can judge how to best use the Data; as such, INFOTRADE is not responsible for how the Client chooses to use the Software and the Sparklane Database.
Article 12 – INFOTRADE’s Obligations and Responsibility
12.1. From a general perspective, INFOTRADE’s delivery of the Services and Additional services is based on a ‘best efforts’ obligation so that INFOTRADE will do its utmost to ensure the Sparklane Database is up-to-date and complete, in particular in considering the obvious fluctuation of information and the wide range of sources.
12.2. INFOTRADE shall not make any undertaking in terms of the the Client’s marketing campaigns for which Sparklane Database is used or their results (for example, rate of return) and consequently shall not be held liable in this respect.
12.3. INFOTRADE shall not be held liable in the case of a force majeure event as described under the article Force majeure below.
12.4. Should INFOTRADE be acknowledged to be at fault, its liability does not extend to indirect loss such as operating loss, loss of earnings, loss of business or financial loss, or any increase in general costs suffered by the Client.
12.5. Should INFOTRADE be held liable by the courts for the performance of the Contract, any damages claimed by the Client may not exceed the amount of payments made by the Client under this contract, capped at the amount paid in the last year of the contractual relationship.
Article 13 – Client Indemnity
The Client shall indemnify INFOTRADE against any third party claim or proceedings against INFOTRADE under the Contract and, particularly, any proceedings arising from the improper use of Data by the Client or failure to comply with legal and regulatory provisions on the use of personal data. This indemnity covers in particular any legal costs that may arise from the defence of INFOTRADE’S interests.
Article 14 – Non-disclosure
Any data and/or information, whatever the format and/or medium, described as confidential when handed to the other Party, shall be considered confidential by the Parties, with the Party disclosing such information required to prove that such data and/or information (hereinafter the Confidential Information) was described as confidential.
The Parties undertake to take the same measures to safeguard the Confidential Information as with their own Confidential Information and, in particular, not to disclose it to third parties, in any format, or on any medium and for any reason, and to impose upon any employee or third party liable to have access to the Confidential information for the purposes of the Contract, the same non-disclosure agreement.
This non-disclosure agreement shall remain in place for the duration of the Contract and for a five (5) year period thereafter, whatever the reasons for its termination.
The Parties expressly agree that a breach of this clause shall give rise to the award of damages to the non-defaulting Party, hereby set at thirty thousand (30 000) Euros, without prejudice to any legal proceedings in the event of more substantial damages.
Article 15 – Contract Amendments
INFOTRADE reserves the right to modify the provisions of this Contract at any time. The Client will be made aware of any amendments by email at the address indicated by the Client in their User space or in the Estimate and such amendments shall enter into force on the subsequent Contract anniversary date.
Should the Client disagree, they may ask for the Contract not to be renewed at the next anniversary date in the month after the aforementioned email is sent and in any case before the Contract anniversary date. In this case, the Client need not observe the three (3) month notice period stipulated under the article Effective Date and Contract Term.
Article 16 – Force Majeure
Other than the events usually determined by French case law, in the case of a force majeure event, the Parties’ obligations shall be automatically suspended in the scenario where events that are beyond their express control prevent the normal performance of this Contract, such as earthquakes, fire or floods on the operating premises of either Party, storms, interruption of means of transport for any reason, total or partial strikes whether inside or outside the company, company lock-out, total or partial, regional, national or international interruption of telecommunications and the total or partial, regional, national or international interruption of computer networks.
The Party who becomes aware of the event must immediately notify the other Party of their inability to deliver their service and give reasons. Under no circumstances may the suspension of obligations be grounds for liability for the non-performance of the obligation in question, nor lead to the payment of damages or late payment penalties.
However, as soon as the cause of the suspension of their reciprocal obligations disappears, the Parties will do their utmost to resume the normal performance of their contractual obligations as quickly as possible.
Should this event persist for longer than ninety (90) days, either Party may terminate the Contract by notifying the other Party of their decision by recorded delivery, signed-for letter and without liability.
Article 17 – Assignment of Contract
The benefits of this Contract may not be assigned or transferred to a third party without the prior written agreement of the other Party. As an exemption, either Party may freely assign and/or transfer the benefits of this Contract to any third party in which they hold a direct or indirect majority shareholding, provided they notify the other Party in advance and under their own responsibility.
Article 18 – General Provisions
18.1. The Contract constitutes the entire agreement between the Parties on the matter at hand. It replaces any prior written or verbal proposals or agreements between the Parties and overrides any other document such as, for example, the Client’s general terms and conditions of purchase.
18.2. In the event that any of the Contract provisions were to be declared null or void, in any way and on any grounds, the provision in question shall be deemed not to have been written without invalidating the other provisions.
18.3. Failure by either Party to invoke any of the rights under the terms of the Contract shall not be interpreted as a future waiver of those rights.
18.4. The Parties agree that any communications between themselves by electronic mail shall have the same value as written correspondence and shall be valid as evidence before the courts.
18.5. INFOTRADE is expressly authorised to state and reproduce the last name, trade name or brand of the Client as a reference in its marketing campaigns aimed at third parties, and in particular at prospective customers.
18.6. In the event that the Contract is translated, only the French version shall be legally binding.
18.7. In the event of difficulties of interpretation, the titles of articles shall be disregarded.
18.8. Disclaimer of Partnership and Agency
Each Party is an independent contractor and none of the provisions of this Contract shall establish a company in fact or in law, a joint venture, a mandate, a franchise or sales agreement or an employer-employee relationship between the Parties.
Article 19 – Choice of Law
This agreement is subject to French law only.
Any dispute relating to the interpretation, performance and/or termination of this contract shall fall within the sole jurisdiction of the Nantes Commercial Court (Tribunal de Commerce de Nantes) except in the event that the dispute falls with the jurisdiction of the Rennes High Court (Tribunal de Grande Instance de Rennes), in accordance with the applicable provisions of the French Intellectual Property Code, notwithstanding multiple respondents.