GENERAL TERMS AND CONDITIONS OF SUBSCRIPTION FOR FOXINTELLIGENCE SERVICES
For the purposes hereof, capitalized terms used in these Terms and Conditions of Subscription shall mean as follows:
Analysis(ses): refers to any deliverable delivered to the Customer in connection with the performance of the Optional Related Services as defined in the Business Proposal.
Purchase Order: refers to the document that allows the Customer to define and validate the terms and conditions of the Services, as well as to subscribe to them by signing such document, and which includes the Customer’s internal order number (“PO Number“).
Customer: refers to the legal entity that has subscribed to Services by means of a Purchase Order.
Content: refers to the information and elements made available to Users by FOXINTELLIGENCE based on the Solution, i.e.:
– the Enriched Data for the Markets selected by the Customer in the Purchase Order;
– the dashboards, graphs and indicators for the Solution identified based on the Enriched Data.
Contract: refers to all of the provisions set out in (i) the attached Business Proposal or referred to in the Purchase Order, (ii) the Purchase Order signed by the Customer and (iii) the T&Cs, as well as any amendment that may supplement, modify or replace them, it being understood that the recitals and annexes are fully part thereof.
T&Cs: refers to these terms and conditions of subscription.
Data: refers to any information and publication relating to consumers and their consumer
practices in various Markets, based on a non-exhaustive panel.
Collected Data or Data Collected: refers to any Data collected and used by the Platform.
Enriched Data: refers to any Collected Data that has been anonymized, aggregated, reprocessed and enriched by FOXINTELLIGENCE.
Personal Data: refers to, within the meaning of the GDPR, any information relating to an identified or identifiable natural person (hereinafter referred to as a ”data subject”); an “identifiable natural person” is defined as a natural person who can be identified, directly or indirectly, in particular by reference to an identifier, such as a name, an identification number, location data, an online identifier, or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
Identifiers: refers to both the User’s own identifier and password provided upon subscription through a Purchase Order.
License: refers to the license to use the Solution and its updates granted by FOXINTELLIGENCE to the Customer pursuant to these T&Cs.
Market(s): refers to the markets as listed in the Business Proposal for which the Solution will make Enriched Data available.
Party(ies): refers to FOXINTELLIGENCE or the Customer, either together or individually. Foxintelligence T&Cs – 2022 1
Platform: refers to all of the software developed by FOXINTELLIGENCE, and in particular, the Solution, accessible by the Customer under the License and the terms and conditions provided for in the T&Cs.
Business Proposal: refers to the document provided to the Customer and intended to present an offer detailing the Services offered to the Customer.
Services: refers to the provision by FOXINTELLIGENCE of the Solution and the Related Services as described in the Business Proposal.
Applicable regulations regarding the protection of Personal Data: refers to the GDPR, the amended French data protection law (Loi informatique et libertés) and any statute applicable to the processing of Personal Data.
GDPR: refers to EU Regulation 2016/679 of the European Parliament and of the European Council of April 27, 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
SaaS: refers to the Software as a Service accessibility mode of application delivery based on a rental model as well as the provision of Related Services.
Related Services: refers to the services related to the Solution described in the Business Proposal, i.e.:
– Basic Services:
• set-up services;
• training services;
• support and maintenance service;
– Optional Services: Analysis or any other optional service described in the Business
Solution: refers to software accessible in SaaS mode developed by FOXINTELLIGENCE, which provides Users with the Content as well as a set of features allowing the User to filter and sort the Content.
The features and characteristics of the Solution are described more broadly in the Business Proposal.
User: refers to a person under the Customer’s responsibility who has access to the Solution on his or her computer under the terms of the Customer’s license agreement herein.
WHEREAS FOXINTELLIGENCE has developed the Solution, innovative technology accessible online in SaaS mode that allows for Collected Data to be reprocessed and enriched using software developed by FOXINTELLIGENCE, in order to provide its customers with said Enriched Data and dashboards, charts or indicators developed from the Enriched Data, as well as a set of features allowing the User to filter and sort the Content.
WHEREAS the Customer intends to use the Solution for its own needs and benefit from the Related Services under the following terms and conditions.
The purpose of this Contract is to set forth the terms and conditions under which
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(i) grants the Customer a right to access and use the Solution; and (ii) provides a set of Related Services to the Customer.
4. CONTRACTUAL DOCUMENTATION
The relationship between the Customer and FOXINTELLIGENCE shall be governed by a set of contractual documents as described below, in the following decreasing priority sequence:
– The Purchase Order;
– The Business Proposal that is referred to in the Purchase Order;
– The T&Cs;
– The annexes to the T&Cs.
Signature of the Purchase Order implies unreserved acceptance of the T&Cs.
The Contract represents all of the commitments existing between the Parties, excluding any general terms and conditions of purchase of the Customer.
The Customer also acknowledges that it has (i) carried out a precise, written analysis of its needs, (ii) previously received from FOXINTELLIGENCE all of the necessary information, the importance of which is material to its consent hereto, (iii) details of the essential elements of the service which allow it to assess the suitability of the Solution and the Related Services to its needs. In the event that the Customer has not carried out a precise, written analysis of its needs, the Customer acknowledges that FOXINTELLIGENCE’s Business Proposal shall be deemed to be an expression of its needs.
5. TERM, TERMINATION AND CANCELLATION CLAUSE
The Contract shall come into force on the date specified in the Purchase Order or, failing
that, on the date of signature of the Purchase Order.
It is entered into for an initial term of three (3) months, or for any other term indicated in the Purchase Order, and shall then be automatically renewed for successive terms of twelve (12) months, or any other term of renewal indicated in the Purchase Order, unless terminated by either Party, with thirty (30) days’ notice before each contractual term.
In the event of termination by the Customer, they shall assume full liability for the consequences of the termination of this Contract, in particular in respect of the continuity of its internal management.
In the event of a serious breach by one of the Parties of its contractual obligations, which is not remedied within thirty (30) days of the date of the registered letter with acknowledgement of receipt notifying said breach, the other Party may invoke the ipso jure termination of this Contract, subject to any damages that it may claim.
If an invoice is not paid on its due date, FOXINTELLIGENCE will send the Customer a formal notice by registered letter with acknowledgement of receipt. If the Customer fails to fulfill its obligation within fifteen (15) days following the sending of this formal notice, the Contract may be unilaterally terminated by FOXINTELLIGENCE.
In the event of termination of this Contract for any reason whatsoever, all payments made by the Customer shall remain the property of FOXINTELLIGENCE and the Customer shall
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remain liable for all Services rendered up to and including the effective date of termination.
Within thirty (30) business days of termination, the Customer must return, destroy or purge all copies, modifications and updates of the Content and Solution, and all supporting documentation and provide written certification of destruction and purging; provided, however, that the Customer may retain any Limited Excerpts that has been incorporated into the Customer’s files and materials in the ordinary course of business over the term of the Service. Upon termination of the Contract, the Customer shall ensure that employees no longer use the Content or Solution (the Customer shall no longer access the SaaS).
6. SOLUTION USER LICENSE 6.1. Rights granted
FOXINTELLIGENCE hereby grants the Customer, who accepts it, a license to use the Solution and its updates (hereinafter referred to as the “License”).
The right of use granted under the License includes the following:
– subject to the provisions of Article 14.2 (“Intellectual Property”), access to and use of the Content including the right:
for its internal use, to use the Content, to export it, to reproduce it on any medium, to adapt it, to translate it and to create composite works;
to use the Content for internal communication purposes;
to use the Content for external communication purposes as part of a right of quotation granted by FOXINTELLIGENCE to the Customer, subject to the Customer including the elements necessary for third parties to understand the Content.
The rights of access to and use of the Solution granted to the Customer and to Users under the License throughout the term of this Contract shall be strictly personal, non-exclusive, and non- transferable. As such:
– the License is thus granted to the Customer who alone – with the Users – may have access to the Solution during the entire term of this Contract, and use it, as well as its updates;
– the License may not be assigned, transferred or transmitted to any person, in any form and for any reason whatsoever, without the prior, express and written consent of FOXINTELLIGENCE. As a result, any sub-license to use the Solution or its updates, any subsequent distribution of the Solution or its updates, or any total or partial reproduction of the Solution or its updates by the Customer or its Users, in any form and for any reason whatsoever, are expressly excluded from the scope of this Contract;
– the Customer undertakes to ensure that Users comply with the terms and conditions of use of the Solution.
The right of use granted to the Customer is subject to full payment of the entire fee
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provided for in Article 10 (“Price”).
It is further specified that the License shall not be interpreted as authorizing the Customer to develop on its own a solution that is independent of and/or in competition with the Solution.
The breach of the provisions of this Article by the Customer or one of the Users may result in the termination of this Contract at FOXINTELLIGENCE’s option under the terms provided for in Article 5 (“Term, Termination and Cancellation Clause”) above, without prejudice to any damages.
The License includes updates to the Solution for the term of this Contract.
Updates may represent new features, corrections or improvements to the Solution regarding its ease of use or speed.
6.3. Limitation of granted rights
By accepting this granting of the right to use the Solution, the Customer and the Users
agree not to:
– transfer, transmit or display all or part of the Solution;
– disassemble the Solution, decompile the Solution, translate it, reverse-engineer it or attempt to do so;
– access the source code of the Solution in any other way;
– generally perform any act that is not expressly authorized to the Customer or the Users
– remove any proprietary or copyright legend from the Solution;
– sublicense or distribute the Solution;
– disclose or permit the use of the Solution to or by any third party;
– infringe FOXINTELLIGENCE’s intellectual property rights in connection with the Solution and the Content, as described in Article 14 (“Intellectual Property”).
7. PROVISION OF RELATED SERVICES
FOXINTELLIGENCE undertakes to provide and carry out, under the terms provided for in the Business Proposal and in accordance with good practice, the Related Services to which the Customer subscribes in the Purchase Order.
At any time, the Customer may subscribe to new Related Services by sending a new Purchase Order, resulting in modification of the pricing conditions.
8. COLLABORATION OBLIGATION
Each Party undertakes to perform this Contract in good faith, in particular by cooperating with the other Party in the performance of its obligations, for example by providing the other Party with all documents, information and intelligence necessary or requested to
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enable FOXINTELLIGENCE to provide the Services under the terms provided for in this Contract.
Each Party undertakes to appoint a main contact person in charge of the operational monitoring of the performance of this Contract with the other Party.
FOXINTELLIGENCE may freely subcontract all or part of the Services. FOXINTELLIGENCE shall remain liable to the Customer for the performance of all obligations arising from this Contract.
The prices of the Services are established on the basis of the rate in force on the date the Purchase Order is signed. Prices are exclusive of tax and shall also be subject to the Value Added Tax (“VAT”) and any other applicable tax in force on the date of invoicing.
The License is granted for an unlimited number of Users.
During the performance of this Contract, the price of the Services shall be adjusted in the event that the Customer modifies the following elements, in particular:
– the country coverage;
– the Enriched Data Market(s).
Moreover, FOXINTELLIGENCE reserves the right to adjust the price of the License or of Related Services during the term of this Contract in the event of substantial changes in the direct or indirect financial terms for acquiring and managing the Collected Data. The new prices shall be applicable thirty (30) days after such changes are sent to the Customer by fax or e-mail.
In the event of a price adjustment, the Customer shall be free to terminate this Contract within thirty (30) days of the change by notifying FOXINTELLIGENCE by registered letter with acknowledgement of receipt, failing which the Customer shall be deemed to have accepted the price change, which shall then become applicable ipso jure at the end of the aforementioned thirty-(30) day period.
11. TERMS OF PAYMENT
Notwithstanding the term of this Contract, and unless otherwise specified in the Purchase
Order, the Services shall be invoiced:
– in respect of the License: quarterly in advance; it being specified that the first invoice shall be sent to the Customer at the same time as its Identifiers are sent to the Customer;
– in respect of the basic Related Services:
installation services: upon issuance of the first invoice under the License;
training services: upon issuance of the first invoice under the License;
support and maintenance services: quarterly.
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– in respect of the optional Related Services:
individually: upon signature of the Purchase Order;
by subscription: quarterly.
Invoices shall be payable in arrears, within thirty (30) days from the date of issue of the corresponding invoice, by bank transfer.
Invoices shall be issued in electronic format and received by e-mail. The Customer agrees to receive invoices by this method of transmission. The Customer may also obtain a duplicate of its invoice by sending a request by email to FOXINTELLIGENCE.
Unless otherwise provided by Law, in the event of late payment, the Customer shall be liable to FOXINTELLIGENCE for a penalty equal to three (3) times the statutory interest rate applied to the portion of the amount due and unpaid and calculated from the due date of the formal notice to pay, as well as a flat-rate recovery amount equal to forty (40) euros excluding tax.
In any case, in the event of late payment not settled by the Customer within five (5) days of the sending of a formal notice that has remained ineffective, FOXINTELLIGENCE shall be entitled to immediately suspend the provision of the Services and, if necessary, terminate this Contract under the terms provided for in Article 5 (“Term, Termination and Cancellation Clause”).
12. OBLIGATIONS OF THE CUSTOMER
The Customer hereby undertakes:
– to provide accurately, under its sole responsibility, all the information and data necessary for the performance of this Contract, and guarantees the accuracy of such information and data. In this respect, it undertakes to inform FOXINTELLIGENCE of any change in this information;
– to pay the fee under the terms set out in Article 10 (“Prices”);
– not to use the Solution under circumstances likely to affect the proper operation or
safety of the Solution;
– to comply with the proper uses of the Content and Solution as described herein;
– to ensure that all Users are trained in respect of the use of the Solution and the basic technology of the Internet;
– to ensure the confidentiality and safety of the access procedures in such a way as to allow the use of and access to the Solution only to Users, to the exclusion of any third party. The Customer undertakes in this respect to ensure that Users do not disclose their Identifiers. In the event of accidental (loss, theft, etc.) or voluntary disclosure, the Customer undertakes to inform FOXINTELLIGENCE without delay as soon as it becomes aware of it.
The Customer declares that it accepts that FOXINTELLIGENCE may send it e-mails or newsletters of a technical and/or commercial nature during the term of this Contract and for one year after its termination.
The Customer shall be solely responsible for the use of the Solution or Content and for the acts or omissions of its Users. In particular, the Customer shall be liable to FOXINTELLIGENCE in the event of use of the Solution or of the Content for purposes which
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are improper, unlawful, contrary to public policy or morality, or prohibited by current laws and regulations, or those in breach of the rights of a third party, or which cause loss or damage of any nature whatsoever to FOXINTELLIGENCE or any third party.
The Customer guarantees FOXINTELLIGENCE against any and all claims, costs (including legal and advisory fees), fines, penalties, damages, expenses and other charges resulting from its use of the Solution and shall be required to compensate FOXINTELLIGENCE accordingly.
13. OBLIGATIONS OF FOXINTELLIGENCE – AVAILABILITY
FOXINTELLIGENCE shall make its best efforts to ensure that the Solution is accessible on working days in accordance with an obligation of means. Access to the Solution may also be unavailable due to maintenance operations. FOXINTELLIGENCE shall inform the Customer in such respect at the latest 24 hours in advance, by a message accessible on its account.
The Customer acknowledges that FOXINTELLIGENCE may not, under any circumstances, be held responsible for any interruptions in the operation of the Internet. For that reason, access via the Internet to the Content is provided on an “as is” and “as available” basis. FOXINTELLIGENCE has established commercially reasonable procedures to afford security for the transmission of the Content over the Internet. FOXINTELLIGENCE, however, does not warrant that access will be uninterrupted, or error-free or that a downloaded file will be an exact digital duplicate of the same file residing on a FOXINTELLIGENCE server or that the Content exported or converted from one file format to another after downloading will always preserve correct numeric formatting or rounding; or that security will not be breached, and that licensed Content will not be obtained or altered by unauthorized persons.
Notwithstanding the foregoing, FOXINTELLIGENCE shall take all reasonable measures, in accordance with the state of the art, on the date of the interruption, to remedy as promptly as possible any failure attributable to it (interruption, error, etc.) and shall implement all appropriate means currently or in the future within its reach, within the limits of its financial resources and with regard to the structure of the contract, in order to remedy any such malfunctions.
FOXINTELLIGENCE hereby restates to the Customer that the provision of a link between the Solution and the Customer’s information system is not included in the Services and that it is the Customer’s responsibility to have a connection to a communications network that effectively allows it to receive and transmit data from and to the Solution and that the costs related to its Internet connection and its computer system are to be borne by the Customer.
The Customer acknowledges that the description of the Services and the list of functionalities of the Solution contained in the Purchase Order renders the Service Provider’s Services of a quality consistent with the Customer’s legitimate expectations, taking into account the nature of the Services, the uses and the amount of consideration that the Customer undertakes to pay FOXINTELLIGENCE to benefit from the Services.
FOXINTELLIGENCE undertakes to respect the confidentiality of the information and data provided by the Customer to FOXINTELLIGENCE for the performance of this Contract.
14. INTELLECTUAL PROPERTY Foxintelligence T&Cs – 2022 8
FOXINTELLIGENCE guarantees that it holds the intellectual property rights to the Solution and all of the intellectual property items of FOXINTELLIGENCE that may be made available to the Customer under the License, in accordance with the provisions of the French Intellectual Property Code, and that it is the exclusive owner of all such rights.
More generally, FOXINTELLIGENCE remains the owner of its own codes, tools, methods, documentation and know-how, which it would have been required to use and/or provide to the Customer under this Contract. Consequently, no provision in this contract prohibits FOXINTELLIGENCE from using for its other customers, for valuable consideration or free of charge, the same tools, methods, its own documentation and know-how as those used for the Customer.
No transfer of intellectual property rights in respect of the above-mentioned items is made to the Customer under this Contract. In particular, this Contract does not confer any ownership rights to the Customer over the source code of the Solution.
As a result of the foregoing, the Customer shall refrain from any act or behavior that may directly or indirectly infringe the intellectual property rights in connection with the Solution as well as related trademarks.
The Customer undertakes to take all necessary measures, in particular with regard to its personnel and Users, to ensure that FOXINTELLIGENCE’s said intellectual property rights are respected.
Any use not expressly authorized by FOXINTELLIGENCE hereunder is unlawful, in accordance with the provisions of Article L. 122-6 of the French Intellectual Property Code.
The Customer shall therefore refrain from, in particular:
– making any copy of the Solution, whether for valuable consideration or free of charge;
– any form of use of the Solution, in any way whatsoever, for the purposes of designing, producing, distributing or marketing any similar, equivalent or substitute products or services or similar, equivalent or substitute documentation;
– the adaptation, amendment, conversion or arrangement of the Solution, for any reason whatsoever, including for the purposes of correcting errors;
– any transcription, direct or indirect, or any translation into other languages of the Solution;
– any use for processing not authorized by FOXINTELLIGENCE;
– any modification or circumvention of protection codes such as, in particular, Identifiers and passwords;
– any unauthorized intrusion attempt into the Solution. 14.2. Content
FOXINTELLIGENCE guarantees that it holds the intellectual property rights in connection with the Content and with all the intellectual property items of FOXINTELLIGENCE that may be made available to the Customer in connection with the Content being made available to the Customer, in accordance with the provisions of the French Intellectual Property Code, and that it is the exclusive owner of all such rights.
No transfer of intellectual property rights in respect of the Content is made to the benefit
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of the Customer under this Contract. In particular, this Contract does not confer any ownership rights to the Customer with respect to the Enriched Data.
As a result of the foregoing, the Customer shall refrain from any act or behavior that may directly or indirectly infringe the intellectual property rights in connection with the Content.
The Customer undertakes to take all necessary measures, in particular with regard to its personnel and Users, to ensure that such FOXINTELLIGENCE’s intellectual property rights are respected.
Any use not expressly authorized by FOXINTELLIGENCE hereunder in accordance with Article 6 is unlawful, in accordance with the provisions of Article L. 122-6 of the French Intellectual Property Code.
FOXINTELLIGENCE owns all the Content. The Customer acknowledges and agrees that the Content constitutes and contains valuable intellectual property and confidential information of FOXINTELLIGENCE and that the Content was developed using substantial effort and resources. The Customer obtains no rights, titles or interests in or to any of the Content except for the limited, non-exclusive license to use the Content internally within its organization as granted in this Contract. All other rights in and to the Content, including copyrights, belong to FOXINTELLIGENCE.
Subject to the provisions of Article 22 (“Indemnity – by the Customer”) and except as otherwise stated, FOXINTELLIGENCE grants the Customer a royalty-free, non-exclusive license to use limited excerpts of the Content (“Limited Excerpts”) in trade and consumer advertising, in annual and financial reports and for product promotion. Limited Excerpts may not be of such quality or quantity as to have an independent commercial value.
In respect of all disclosures of Limited Excerpts, the Customer should:
a. note FOXINTELLIGENCE’s copyright in the Content disclosed and state all relevant
details (such as market/category and whether this is Customer-defined);
not present such Content in a misleading manner; and
not state or imply that FOXINTELLIGENCE endorses a particular claim.
may be placed on any retrieval system that may be accessed outside the Customer’s
immediate organization; or
may be used in any legal proceeding without the prior written consent of a member of
the FOXINTELLIGENCE’s legal department, except in the case of a court order and then only after the Customer having notified FOXINTELLIGENCE in sufficient time as to allow FOXINTELLIGENCE to seek protection. Any use or disclosure of the Content other than as permitted by this Contract is prohibited without FOXINTELLIGENCE’s prior written consent.
14.3. Related Services
With the exception of the Analyses, the intellectual property of the products made in connection with the Related Services shall remain the property of FOXINTELLIGENCE, the Customer having acquired only the right of use thereof. FOXINTELLIGENCE may, however, in certain cases, transfer to the Customer all or part of its rights over the aforementioned product: the right of reproduction, representation, marketing, holding, adaptation, translation, and more generally, all exploitation rights. This transfer shall be the purpose to a written agreement between the parties.
As part of the performance of the Analyses, the Customer shall have full and complete ownership of the results of the said Analyses. As such, FOXINTELLIGENCE exclusively
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assigns to the Customer all industrial and/or intellectual property rights that it may hold over the Analyses.
Where appropriate, in the event that the Analyses are wholly or partly protected by copyright, it is specified, in order to comply with the provisions of Article L. 131-3 of the French Intellectual Property Code, that the rights transferred shall include in particular:
– the right to reproduce or have reproduced the Analyses, without limitation of number, in whole or in part, by any means and processes, on any medium or material, both current and future, known or unknown, and in particular on paper or derivatives, plastic, digital, magnetic, electronic or IT media, by way of downloading, videogram, CD-ROM, CD-I, DVD, disc, diskette or network;
– the right to represent or have represented the Analyses, by any means of distribution and communication, current or future, known or unknown, in particular by any online telecommunications networks, such as the Internet, intranet, digital television networks, transmission by terrestrial means, satellite, cable, wap, interactive telematics system, download, teletransmission, or fixed or wireless telephone networks;
– the right to adapt, amend, transform or develop, in whole or in part, the Analyses;
– the right to translate or have translated the Analyses, in whole or in part, and to reproduce the resulting Analyses on any paper, storage, optical or electronic medium, and in particular on the Internet or on a disk, diskette, tape, CD-ROM, listing;
– the right to make any use of and exploit the Analyses, for the purposes of its own business or for the benefit of third parties, in any capacity whatsoever;
– the right to transfer all or part of the rights transferred, and in particular to grant any third party any contract for reproduction, distribution, dissemination, marketing or manufacturing, in any form, on any medium and by any means whatsoever, whether for valuable consideration or free of charge.
FOXINTELLIGENCE shall remain the owner of any moral rights it may hold over the Analyses.
This transfer of rights is granted for the whole world, and for the entire legal term of protection of intellectual and industrial property rights.
The price of the transfer is included in a fixed and final amount in the consideration received by FOXINTELLIGENCE for the Services, and FOXINTELLIGENCE may not claim any additional amount for any reason whatsoever.
FOXINTELLIGENCE guarantees to the Customer that it holds all of the rights relating to the Analyses, and in particular the intellectual and/or industrial property rights. FOXINTELLIGENCE guarantees that the Analyses do not constitute an infringement, and that this assignment does not infringe the rights of any third party whomsoever.
FOXINTELLIGENCE generally guarantees to the Customer that nothing can prevent the free use of the Analyses by the Customer.
Consequently, FOXINTELLIGENCE guarantees the Customer against any action, complaint, claim or opposition on the part of any person claiming an intellectual or industrial property right or an act of competition and/or parasitism that this transfer would affect.
15. SAFETY AND BACKUP
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FOXINTELLIGENCE shall implement and maintain safety systems corresponding to each type of Service throughout the term of this Contract, in particular for the infrastructures hosting the Solution and, in any case, always at least equivalent to industry standards.
As such, FOXINTELLIGENCE undertakes to:
– make a daily backup of the data processed in its information system;
– ensure the safety of the data processed and of its information system. In this context, FOXINTELLIGENCE shall adopt, in particular, all appropriate measures guaranteeing the safety, integrity, confidentiality and control of data disclosure;
– keep in a usable form, for a period of time in accordance with the legislation in force, in particular tax legislation (at the date of execution of the contract, the period is 3 years + the current year), the trace and integrity of the actions carried out in its information system, in order to be able to guarantee the possibility of reconstructing a processing operation for control (audit) and evidence purposes. The Customer shall inform FOXINTELLIGENCE of any change in duration imposed by legislation as soon as it becomes aware of it so that the Service Provider can actaccordingly.
FOXINTELLIGENCE shall take all necessary precautions to avoid the introduction of any malicious software (defined as harmful computer code such as viruses, logic bombs, worms, Trojan horses or any other code or instructions infecting or affecting any program, software, data, file, database, computer or other hardware or element, damaging, affecting, compromising integrity or confidentiality, disrupting in whole or in part the functioning, or diverting or allowing to divert in whole or in part an information system from its intended use) into the Solution and will take the appropriate measures if it becomes aware of the existence of such a malicious program.
In the event of the introduction of such a malicious program, the Parties agree to cooperate in order to determine its origin by mutual agreement and to eradicate its consequences.
If it becomes apparent that the introduction of the malicious program is attributable to the Customer, the Customer shall bear the costs of diagnosis and repair.
If it becomes apparent that the introduction of the malicious program is attributable to the FOXINTELLIGENCE, the latter shall bear the costs of diagnosis and repair.
16. PROTECTION OF PERSONAL DATA
16.1. Personal Data Protection in connection with the Solution
The Parties undertake to collect and process any Personal Data in accordance with
applicable Personal Data Regulations.
If the Collected Data by FOXINTELLIGENCE for the purposes of the Solution includes Personal Data, FOXINTELLIGENCE hereby guarantees to the Customer that the processing is carried out in accordance with applicable regulations on the protection of Personal Data and in particular that the persons concerned have been informed of the processing of their Data for the purposes of producing and marketing anonymous and aggregated statistics for e-commerce sites, associations and brands and have given their consent in this respect.
The Customer only has access to Enriched Data that has previously been anonymized. Therefore, FOXINTELLIGENCE does not transmit any Personal Data to the Customer in connection with the Services.
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16.2. Protection of Personal Data in connection with the Optional Related Services
In connection with the Optional Related Services, FOXINTELLIGENCE may provide a tailor- made service for the Customer based on the Personal Data provided by the latter. This Personal Data may include Data from customer files and contacts of the Customer.
In this context, the Customer acts as controller and FOXINTELLIGENCE acts as a processor within the meaning of the applicable regulations on the protection of Personal Data.
FOXINTELLIGENCE undertakes to process Personal Data only in the name and on behalf of the Customer and on its sole instructions for the purpose of providing it with the Optional Related Services. FOXINTELLIGENCE shall immediately inform the Customer if any of its instructions are contrary to applicable regulations on the protection of Personal Data. FOXINTELLIGENCE shall refrain from reusing the Personal Data entrusted to it by the Customer on its own behalf.
FOXINTELLIGENCE undertakes not to transfer Personal Data entrusted by the Customer outside of the European Union without the prior consent of the Customer and subject to having set up appropriate safeguards in accordance with the applicable regulations on the protection of Personal Data.
FOXINTELLIGENCE undertakes to maintain a register of all categories of processing activities carried out on behalf of the Customer under the terms of Article 30 of the GDPR.
(i). Safety and confidentiality of Personal Data
FOXINTELLIGENCE shall ensure the confidentiality and protection of the Personal Data entrusted to it for the purpose of carrying out any Optional Related Service against any accidental and/or unlawful destruction, alteration, loss, dissemination or unauthorized access and, more generally, against any other form of unlawful and/or unauthorized processing.
To this end, FOXINTELLIGENCE shall take all necessary safety measures to ensure a level of safety in accordance with the applicable regulations on Personal Data and shall assist the Customer to ensure compliance with its obligations.
In the event of a breach of Personal Data, FOXINTELLIGENCE undertakes to inform the Customer as soon as possible and at the latest within 48 hours of becoming aware of it.
In the event that FOXINTELLIGENCE uses a processor to process data entrusted by the Customer, FOXINTELLIGENCE shall inform the Customer thereof (by providing the identity, nature of the processing and location of the processor). FOXINTELLIGENCE undertakes that such processor will be bound by obligations at least equivalent to those set out in this contract and shall remain fully liable to the Customer for the performance of its obligations by such processor.
(ii). Rights of natural persons
FOXINTELLIGENCE shall assist the Customer in the implementation of the exercise of the
rights of the data subjects concerned by the processing. (iii). Storage period and return of data
FOXINTELLIGENCE undertakes, where applicable, to permanently delete the Personal Data provided by the Customer within 2 months after delivery of any Optional Related Service.
(iv). Audit and cooperation with the supervisory authority
FOXINTELLIGENCE shall make available to the Customer any information necessary to
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evidence compliance with the data privacy obligations described in this Article and to allow compliance audits to be carried out by the supervisory authority.
FOXINTELLIGENCE undertakes to inform the Customer if it is subject to an inspection by a supervisory authority with regard to the protection of Personal Data and that this inspection concerns the Personal Data entrusted to it by the Customer.
The Parties undertake to cooperate with the supervisory authority, in particular in the event of a request for information addressed to them or in the event of an inspection.
17. FORCE MAJEURE
Neither Party shall be liable to the other for any failure or delay in the performance of an obligation under this Contract due to the occurrence of an event of force majeure under the conditions provided for in Article 1218 of the French Civil Code.
In such an event, the obligations arising under this Contract shall be suspended subject to the Party affected by the force majeure event informing the other Party as soon as possible after its occurrence. If such an event continues beyond a period of one (1) month, this Contract may be terminated by any of the Parties by registered letter with acknowledgement of receipt, unless otherwise agreed by the Parties.
The Customer agrees not to assign, delegate or transfer, for valuable consideration or free of charge, all or part of its rights and obligations under this Contract, without FOXINTELLIGENCE’s prior written consent.
FOXINTELLIGENCE reserves the right to assign, delegate or transfer to one of the companies belonging to its group, within the meaning of Article L.233-3 of the French Commercial Code, or to a successor to its business, all or part of its rights and obligations under this Contract.
The Customer hereby agrees that this Contract may be novated, delegated, assigned or otherwise transferred by FOXINTELLIGENCE to another company under the direct or indirect ownership of Nielsen Consumer LLC without requiring the Customer’s prior consent. In any event, the Customer hereby agrees and undertakes, at the request of FOXINTELLIGENCE, to promptly execute any and all documents and perform acts as are reasonably required to allow for the effective transfer of FOXINTELLIGENCE’s rights and obligations under this Contract to such other entity.
FOXINTELLIGENCE warrants that the Services are provided with all due care, diligence and skill reasonably required, and excludes any other guarantee, express or implied, not expressly stipulated herein.
FOXINTELLIGENCE does not guarantee:
– the exhaustiveness of the panel on the basis of which the Enriched Data is compiled;
– that the installation and use of the Solution will occur without interruption, malfunction or error;
– that the Solution is free of malfunctions, anomalies, errors or bugs, or that the Solution will Foxintelligence T&Cs – 2022 14
operate without failure or interruption;
– the absence of any data transmission, connection or network unavailability issues.
FOXINTELLIGENCE also reserves the right to modify the Solution for technical or commercial reasons. Where these modifications do not substantially and negatively alter the conditions of the provision of the Services, the Customer may be informed of the modifications made, but its acceptance shall not be requested.
FOXINTELLIGENCE does not provide any additional guarantee with regard to any services and supplies provided by third parties.
20. LIMITATION OF LIABILITY
FOXINTELLIGENCE will refund the cost of the Services it fails to provide and will use reasonable efforts to correct errors the Customer identifies in the Content or Solution. If FOXINTELLIGENCE does not provide a Services or is unable to correct erroneous Content or Solution, it will reimburse the Customer for fees paid for the affected part of the Services. Any claims in accordance with this Article shall be brought within one (1) year after the cause of action has occurred. These are the sole remedies for late or erroneous Services, or Services not provided.
FOXINTELLIGENCE’s total aggregate liability pursuant to this Contract is limited to the charges paid by the Customer for the affected Services in the last twelve calendar months preceding any claim hereunder. FOXINTELLIGENCE does not seek to exclude any liability that it may not legally exclude. FOXINTELLIGENCE will not otherwise be liable, in contract, tort (including negligence) or otherwise, for any indirect, consequential, or other loss, expense or damage of any kind.
21. INDEMNIFICATION – BY FOXINTELLIGENCE
FOXINTELLIGENCE will indemnify and hold harmless the Customer, as well as its officers, directors, employees and agents, against all claims, damages, loss or expenses arising from any claim brought against the Customer that the Customer’s permitted use of the Content and Solution infringes any copyright, trademark or trade secret of the claimant; provided that the Customer makes no admission regarding such claim, gives FOXINTELLIGENCE prompt written notice of such claim and FOXINTELLIGENCE has control of the action including sole right of settlement. FOXINTELLIGENCE shall pay any final award or settlement resulting from such claim. FOXINTELLIGENCE may require that the Customer ceases using any infringing Content or Solution. This clause sets out FOXINTELLIGENCE’s entire liability for any infringement of intellectual property.
22. INDEMNIFICATION – BY THE CUSTOMER
The Customer agrees to indemnify and hold harmless FOXINTELLIGENCE, as well as its officers, directors, employees and agents, against any damage (loss) arising from (i) the Customer’s misuse of the Content or Solution or (ii) a third-party claim relating to the Customer’s use or disclosure of the Content.
The fact that one of the Parties does not invoke a breach by the other Party of any of the obligations referred to in this Contract shall not be interpreted in the future as a waiver of such obligation.
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Each Party undertakes to hold, with an insurance company known to be solvent, an insurance policy covering the financial consequences of its civil liability and to provide the other Party, upon request, with an insurance certificate.
The Parties hereby undertake to keep confidential all documents and information provided
to them and to take all necessary measures to prevent their disclosure to third parties.
This obligation shall remain in force both for the term of the relationship between the Parties and for a period of two (2) years following the expiry of such relationship. This confidentiality obligation shall not apply to information that is in the public domain at the date of the disclosure.
The Customer authorizes FOXINTELLIGENCE to use its name and logo on the FOXINTELLIGENCE website as well as its commercial documentation upon the signature of this Contract. FOXINTELLIGENCE undertakes to obtain written authorization from the Customer for all other marketing communication.
26. NOTICES AND NOTIFICATIONS
The notices and notifications provided for in this Contract shall be sent to their addressee by registered letter with acknowledgement of receipt or by fax confirmed by registered letter with acknowledgement of receipt to the addresses indicated by the Parties in the Purchase Order, subject to notification by one of the Parties of a change of address during the contractual relationship.
27. PARTIAL INVALIDITY
Should any of the provisions of this Contract be declared null and void or without purpose with regard to a legislative or regulatory provision in force and/or a court decision having the force of res judicata, it shall be deemed unwritten and shall not entail the invalidity of the remaining provisions of this Contract.
Throughout the term of this Contract, the Customer shall refrain from soliciting or contacting, directly or indirectly, any employee or manager of FOXINTELLIGENCE for any purpose other than the performance of the Services, and in particular to incite them to leave or turn away from FOXINTELLIGENCE.
29. RIGHT TO AUDIT
During the term of this Contract and a period of two years following its termination, upon reasonable notice to the Customer, FOXINTELLIGENCE shall have the right to audit all usage of the Platform and the Content by the Customer; provided that the Customer shall not be required to submit to such audit more than twice in any calendar year.
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30. APPLICABLE LAW AND COURT HAVING JURISDICTION
This Contract shall be governed by French laws and regulations.
In the event of a dispute between the Parties concerning the validity, interpretation, performance and termination of this Contract, the Parties shall endeavor to resolve their dispute amicably.
In the event of persistent disagreement, the dispute may be brought before the Commercial Court of Paris.
This Article shall remain in force notwithstanding any termination or expiry of this Contract.