Version dated 7th of December 2020
0 – PREAMBULE
0 – PREAMBLE
New Oxatis Corp. SAS. (CMA CGM Group) Capital: 1155 000€, Head Office: Bd Jacques Saadé – 4 Quai d’Arenc – 13235 MARSEILLE Cedex 02, France – RCS Marseille 831 239 744 – SIRET 831 239 744 00012 – APE 6202A – VAT No: FR79831239744 (hereinafter NEW OXATIS).
NEW OXATIS, is one of the European market leaders in publishing software for the creation of e-commerce sites and helps business owners in the digital transformation of their business by offering them an IT solution for publishing and managing e-commerce sites based on SaaS technology (software as a service).
All the Services it offers are presented on its website https://www.oxatis.com (hereinafter the “NEW OXATIS Website”) and revolves around the provision of this solution, and various additional services.
By explicit agreement, signing the Subscription Agreement means you accept the agreement on evidence of electronic communications (e-mails etc.) exchanged between NEW OXATIS and the Subscriber. As these electronic communications are considered as binding between the Parties they can be printed and used as evidence if required.
1 – DEFINITIONS
Primary Email Address: refers to the email address that the Subscriber wants to use to communicate with NEW OXATIS.
Internet Expertise Centre: refers to NEW OXATIS partners who provide certain Service provisions.
NEW OXATIS Email Account: refers to an Email Account made available by NEW OXATIS to a Subscriber under the conditions of Article 9.
Account: refers to the interface through which the Subscriber can connect to their Website and their programming interface.
Registration Date: refers to the date you received a username and password.
Login Details: refers to the elements (Site designation – Password) which allow the Subscriber to connect to their Account.
Deliverables: refers to any intellectual creation specifically produced by NEW OXATIS as part of the execution hereof, such as in particular software, graphics charters, visuals, models, illustrations, drawings, work carried out within the framework of the Services, whatever the nature. The aforementioned elements can be software, graphs, written, sound, audio-visual and visual media etc. The ownership of the Deliverables is assigned to the Subscriber under the conditions set out in Article 11 hereof.
Intermediary: refers to the third party commissioned by the Subscriber to create an Account and to benefit from a Website. In particular this intermediary may be:
– A computer vendor
– A web agency
– A communications agency
– A banking institution
– A NEW OXATIS partner organisation
Password: refers to a code attached to a Username.
Main Offer: refers to the main service offered by NEW OXATIS via its NEW OXATIS Website, including the use of the NEW OXATIS Solution, the creation of the Website, the hosting of the Website as well as the provision of online support.
Partner: refers to a third-party company whose services are offered by NEW OXATIS.
Parties: refers to the parties to the Subscription Agreement, that is NEW OXATIS and the Subscriber.
Additional services: refers to the set of services offered by NEW OXATIS aside from the Main Offer.
Services: refers to the Main Offer and Additional Services together.
Price Plan: refers to the subscription package including the Main Offer without which a Website cannot be activated.
Website: Subscriber’s Website whose address is a subdomain of the OXATIS.com domain such as “Username.OXATIS.com” for example.
NEW OXATIS Website: refers to the website produced by NEW OXATIS and accessible at https://www.oxatis.com
NEW OXATIS Solution: refers to all the software and IT developments displayed on the NEW OXATIS Website which belong to NEW OXATIS, and which allow the Subscriber to create and manage their Website. The Subscriber is granted a license to use this NEW OXATIS Solution pursuant to Article 11 hereof.
User: refers to an internet user who connects, browses and uses a Website hosted on the NEW OXATIS platform, at their own risk.
The Subscriber warrants to have the authority to enter into contracts and to have the necessary permissions and delegations to do so and may do so for the company they represent.
Access to the Services is subject to compliance with these terms.
In the event of substantial changes, the following scenarios should be distinguished:
– Either the Subscriber consents to said substantial modifications in which case the changes will automatically come into force without any other formality.
– Or the Subscriber refuses the substantial modifications, in which case:
For commitments entered into for a fixed period and affected by the substantial modifications, the contractual conditions applicable on the day of the initial commitment will be maintained until the end of the commitment.
For commitments without a fixed period and affected by the substantial modifications, the Subscriber has the option of early cancellation of the contract without charge by simply sending a registered letter with acknowledgment of receipt within eight (8) days following the notification.
In this case, the Subscriber undertakes to pay NEW OXATIS the sums corresponding to the Services used up to the day on which the cancellation takes effect, if necessary, calculated in proportion to the initial commitment and the period elapsed.
3 – REGISTRATION – SUBSCRIPTION
3.1 – Subscriber registration
After their registration, the Subscriber will have their Login Details which will allow them to access their account. The Subscriber undertakes to keep these Login Details secret and to not communicate them to others. They take responsibility for all actions carried out on their website with their Login Details.
These Login Details allow the Subscriber to access and edit their Website and can in no case be loaned, licensed or assigned to third parties for free or at a cost.
The Subscriber warrants to give true, complete and updated information. In the event that the information provided by the Subscriber is false, incomplete or out of date, NEW OXATIS reserves the right, without any indemnity and without notice, to suspend or cancel the Subscriber’s Account, to delete all or part of the Subscriber’s Website, the data and files contained therein, to stop access to these Websites, pages, files and data or to block the Subscriber from all or part of the NEW OXATIS Services, without prejudice to other available common law actions.
NEW OXATIS reserves the discretionary right to refuse, without indemnity, access to its Services, to persons communicating information during registration, that it considers conflicting with good organisation and management of its Services.
3.2 – Subscriber Registration by an Intermediary
4 – PURPOSE OF THE NEW OXATIS SOLUTION AND THE MAIN OFFER
4.1 – The NEW OXATIS Solution
Except as otherwise provided, the NEW OXATIS Website is accessible from anywhere, as long as the minimum technical conditions are met, in particular in terms of access to the internet network.
The Subscriber agrees to comply with any rule of public policy relating to the behaviour of internet network users and applicable in the country in which they use the NEW OXATIS Website.
NEW OXATIS has the right, at any time, to modify or move content on the NEW OXATIS Website.
4.2 – Main Offer
4.2.1 – Use of the NEW OXATIS Solution
Once the Subscriber is registered either directly or via the authorisation given to an Intermediary, they then benefit from the NEW OXATIS Solution, its updates as well as the various Services.
However, it is specified that the Subscriber only benefits from the NEW OXATIS Solution under a simple user license granted by NEW OXATIS, under the conditions set out in Article 11 hereof.
4.2.2 – Creation of the Website
The Main Offer allows the Subscriber to create their Website within a purely technical framework. Thus the Subscriber will be solely and fully responsible for the commercial, logistical, marketing and financial management of their Website.
As such, NEW OXATIS cannot be held responsible for the effectiveness of the Website, from a commercial point of view, the Subscriber being solely responsible for the management of the latter. Thus NEW OXATIS cannot be held responsible for the number of visitors to the Website, its commercial profitability, or its ability to meet the needs of the Subscriber.
4.2.3 – Online Assistance and Support
As part of the Main Offer, NEW OXATIS provides the Subscriber with online support from 9am to 11pm every day of the week (including bank holidays), 365 days a year.
4.2.4 – Hosting
As part of their Main Offer NEW OXATIS suggests that their Website be hosted on their own servers. As such, NEW OXATIS will retain the status of Website host and cannot in any case be considered as the editor of this Site.
4.2.5 – Domain Name
The Subscriber must, without fail, provide NEW OXATIS with a dedicated domain name for hosting and operating their Website, and must in no case use a sub-domain of NEW OXATIS. NEW OXATIS reserves the right to cut off the use of NEW OXATIS subdomains 15 days after informing the Subscriber by email.
5 – AVAILABILITY OF ADDITIONAL SERVICES
5.1 – Presentation
The various Additional Services offered by NEW OXATIS consist of the following in particular:
– access to online applications;
– the provision of postal shipping solutions for products ordered via their Website;
– the provision of online payment solutions;
– access to training and other coaching;
– the provision of various IT services;
– access to creation and mailing solutions for communication campaigns;
– access to any other Service offered by NEW OXATIS or a Partner.
The detailed description of each of these Additional Services is provided by NEW OXATIS on the NEW OXATIS Website, in the relevant sections.
To carry out these Additional Services, NEW OXATIS may at any moment call on a Partner or any other third party.
5.2 – Booking Conditions
5.2.1 – Coaching and training services
Access to additional services such as online training or coaching, commits the subscriber to have to choose, upon receipt of the schedule transmitted via a link to their Primary Email address, a training date depending on availability.
Subject to expressing their request at least fifteen (15) days before the fixed date, the Subscriber may modify this date only once.
It is specified that any request for cancellation or modification made within less than fifteen (15) days before the fixed date for the service, will be made at the expense of the Subscriber and there will be no entitlement to a refund.
In the context of training for which the Subscriber claims OPCO funding, it remains the responsibility of the Subscriber to ensure the administrative and financial conditions required for submitting the application and obtaining the funding and checking the elements. NEW OXATIS cannot be held responsible for the loss of funding for any reason whatsoever.
Access to the services is linked to the payment of services before they start. The Subscriber agrees to refrain from approving a payment subrogation without the express authorisation of NEW OXATIS.
5.2.2 – Other types of Services without fixed delivery date
For Additional Services requiring the exchange of information with the Subscriber, such as the creation of a graphics charter, the creation of a personalised home page, or the creation of referencing etc., the absence or excessive delay (greater than 90 days from the request) in the supply by the Subscriber of the information necessary for the performance of the service will result, after a single reminder, in cancellation of this order at the expense of the Subscriber without resulting in a credit note or any refund.
The Services requiring the use of telephone access are accessible from mainland France by a landline telephone number and are not charged at a premium rate.
6 – RIGHT OF WITHDRAWAL
It should be noted that the right of withdrawal is not applicable in principle between professionals.
By exception to this principle and pursuant to Article L121-16-1 III. of the French Consumer Code, known as Hamon Law, this principle has been extended to professionals, subject to conditions:
1. The contract must be concluded off-premises
– In a place that is not the one where the professional permanently carries out their business or in the usual way, in the simultaneous physical presence of the parties, including following a request or an offer made by the Subscriber;
– Or in the place where the professional permanently carries out their business or in the usual way or by means of a remote communication technique, immediately after the Subscriber has been consulted personally and individually in a different place from that where the professional permanently carries out their business or in the usual way and where the parties were, physically and simultaneously, present;
– Or during an excursion organised by the professional with the aim or effect of promoting and selling goods or services to the Subscriber;
Limit – exclusion of contracts concluded at a distance
Professionals therefore do not have the right of withdrawal for contracts concluded at a distance understood as contracts concluded without the simultaneous physical presence of the parties, by the exclusive use of one or more remote communication techniques until the conclusion of the contract.
2. The object of the contract must not fall within the scope of the professional’s core business.
3. The number of employees employed by the professional must be less than or equal to five.
When the above three conditions are met, the company, like any consumer, can withdraw within 14 days of the conclusion of the contract
NEW OXATIS draws the Subscribers’ attention to the fact that it does not appoint any Intermediary in any way whatsoever for the purpose of soliciting potential customers or concluding Subscription Agreements.
Consequently, none of the Subscription Agreements concluded through Intermediaries can be considered to be a so-called “off-premises” contract, offering the exercise of a right of withdrawal.
7 – SUBSCRIPTION TERM
7.1 – Services without fixed commitment
The Subscriber has access to the NEW OXATIS Solution and the Services through a subscription corresponding to a confirmed Price Plan.
This subscription is for a period of one (1) month from the Registration Date. It is automatically renewed monthly.
The Subscriber may decide each month to no longer subscribe to these Services without obligation that they used them the previous month. All they need to do is unsubscribe using the administration tool provided by NEW OXATIS on the Website.
The cancellation of the subscription will be deemed active at the end of the committed period.
7.2 – Services with fixed commitment
In the event that the subscriber has signed a commitment, cancellation before the end of this minimum period will result in the obligation to pay all the remaining monthly payments due.
The commitment is automatically renewable on a 1 (one) month basis at the catalogue price.
The subscriber can decide at any time to withdraw from the automatic renewal of their commitment by using the administration tool provided which allows them to unsubscribe before the end of their commitment period or by sending an email to [email protected]
The subscriber is free to change their Price Plan each month provided they do so at least one working day before the due date via their administration tool and without modification of this date, provided that the technical and functional conditions used before the change are transferable as is to the new desired price plan.
For any question relating to the impact of a change in price plan, the Subscriber is asked to contact NEW OXATIS customer support or sales department.
If the Subscriber subscribes during the fulfilment of a service involving a minimum subscription period, this new minimum period replaces that which was in progress, except in the case where it is of a duration shorter than that which was in progress.
7.3 – In advance credit purchases
If the Subscriber buys several months of subscription corresponding to different Services in advance, these are not refundable and the Subscription Agreement is then concluded for the period covering all of the prepaid Services.
No amount will be due by NEW OXATIS in the event of early cancellation of its Subscription Agreement by the Subscriber. In particular, no purchase of prepaid services or deposit paid entitles the right to a refund.
7.4 – Website Sleep mode
If the Subscriber decides, at the end of the commitment period, to object to the automatic renewal of their commitment, and to no longer subscribe to a Price Plan, their Website is put to sleep for a period of twelve (12) months under the conditions of Article 15.2 hereinafter to allow them to reverse their decision.
During sleep mode the Website is not accessible to the Subscriber, their customers or search engines.
8 – FINANCIAL CONDITIONS
8.1 – Price plans
The prices of the Services offered by NEW OXATIS are available on the NEW OXATIS Website. These Services being reserved for businesses, they are shown without VAT.
NEW OXATIS reserves the right to review its prices at any time. In this case the subscriber is informed by any means at least two (2) months before the new prices take effect. If the Subscriber refuses the applied increases in price, they may, during the four (4) months following the new prices taking effect, cancel their subscription at the end of each monthly period. Such early cancellation may be made even before the expiration of the minimum subscription period, and without any cost, indemnity or refund of any kind.
8.2 – Price Type
Access to Services is provided:
– by the payment of a subscription for the Main Offer,
– by the payment of a fixed sum for the Additional Services.
8.2.1 – Subscription
The subscription price for the Main Offer depends on the Price Plan chosen by the Subscriber directly through their account or with support.
The amount of this Price Plan is set according to three elements: the number of pages on the Website, the number of items sold, and finally the chosen storage capacity.
In the event that the Subscriber exceeds the limits set by their Price Plan concerning these three elements, the Subscriber will be debited such sums, detailed on page two of their subscription invoice, depending on the level of increase.
8.2.2 – Payment of sums for Additional Services
The total of Additional Services will depend on the options selected and choices made by the Subscriber directly from their Account. Their final payment will follow point 7.3 hereof.
8.3 – Invoicing
The signing of the Subscription Agreement by the Subscriber results in the immediate settlement of the amounts due as part of the subscribed Services and, where applicable, the additional usage by the Subscriber in the event of increased usage.
Payment is made by direct debit from the Website through the means of payment authorised by the subscriber (SEPA direct debit, bank card).
In the event that a means of payment (bank transfer, cheque) other than that permitted online has been accepted for the payment of services, NEW OXATIS reserves the right, in the absence of payment by the due date, to proceed to collecting the sums due, which the Subscriber accepts by law.
Invoicing is monthly and takes effect following the anniversary date of the subscription activation.
The subscription is payable in advance for all services and subscriptions with the exception of the additional usages, which are payable at the end of the month.
Invoices are sent by email, on the publication date, to the Primary Email Address and are retrievable, in PDF format and without an expiry date, from the Website. Any request for duplicates will therefore be considered as an additional service and will be invoiced at €7.50 per request.
In the event that an invoice is not paid within the timeframe given, whether it is the Subscription taken out under the Main Offer or the Additional Services ordered by the Subscriber via their Account, NEW OXATIS reserves the right to suspend the Subscriber’s access to their Website by putting it into sleep mode until full recovery of the sums due by the Subscriber.
8.4 – Payment problems In the event of delay in payment, NEW OXATIS by right will invoice the Subscriber late payment penalties calculated at the legal rate in force. These late payment penalties will be calculated as follows:
Late payment penalties = (invoice amount including tax * APPLICABLE LEGAL RATE FOR THE HALF-YEAR) * (number of days overdue in the half-year/365).
In accordance with the provisions of the French Commercial Code, the Applicable Legal Rate means the interest rate applied by the European Central Bank to its most recent refinancing operation increased by 10 percentage points.
Late payment penalties are payable the day following the settlement date without a reminder being necessary.
The Subscriber in a late payment situation is by right NEW OXATIS’ debtor for a lump sum for recovery costs in the amount of forty (40) Euros.
NEW OXATIS can also decide, in accordance with the provisions of Article 1231-5 of the French Civil Code, to apply as a penalty clause, an increase of an amount equal to 20% of the remaining main total due including all taxes, increased by the cost of legal and recovery fees initiated, without prejudice to the continuation, suspension or termination of the current Contract.
In the event of the banking institutions concerned rejecting the means of payment used by a Subscriber, a penalty fee of fifteen (15) Euros will be automatically invoiced to the Subscriber. Furthermore, the means of payment that led to the rejection will no longer be authorised by NEW OXATIS in the future for subsequent payments, and the Subscriber must choose another means of payment.
When payment conditions are agreed, such as payment in instalments, the default of a single payment term renders the entire debt payable. It results in the immediate suspension of the services in progress, without payment of compensation of any kind.
If the payment problem is the result of the subscriber inappropriately blocking payment on the bank card or the SEPA authorisation that they will have provided on the NEW OXATIS website to allow payment for the services to which they have subscribed, NEW OXATIS reserves the right to take legal action in order to claim, besides the main, compensation for reparation of the losses suffered.
8.5 – Security deposits, advances
In the event of a payment problem and/or deterioration in the Subscriber’s creditworthiness, and/or uncertainty as to their ability to meet its commitments, NEW OXATIS reserves the right to request stricter payment conditions – such as a deposit or prepayment for all or part of the Services and/or require additional guarantees from the Subscriber.
This is particularly the case for any use of Additional Services the amounts of which are likely to exceed twice the amount of the Price Plan paid the previous month or, in the event of a new subscription, the Minimum Price Plan.
In the event that the Subscriber refuses to implement these provisions, NEW OXATIS will be able to, without payment of any kind of indemnity to the Subscriber, immediately suspend the performance of ongoing and/or upcoming services.
8.6 – Consequences of payment problems
When NEW OXATIS establishes that it cannot recover the sums corresponding to any of the Services ordered, the Subscriber’s Website is put into sleep mode until settlement of the dispute.
9 – SUBSCRIBER’S OBLIGATIONS
In general, the Subscriber undertakes to use the NEW OXATIS Solution and the Services in accordance with all of the stipulations of the Subscription Agreement.
The Subscriber thus undertakes not to harm, in any way whatsoever, the security and integrity of the NEW OXATIS Solution, as well as the NEW OXATIS Website, nor to attempt to reproduce it, or to extract from it, all or part of it, by any means.
The Subscriber also undertakes to comply with all of the legal provisions in force.
9.1 – Provision of Content by the Subscriber
The Subscriber is responsible for the Content that they make available to the public on their Website through the Services.
For all purposes, it is specified that the Subscriber remains the sole editor of the Content that they publish. NEW OXATIS will in no case be considered as publisher of the Websites created by its Subscribers using its Services.
When sharing Content, the Subscriber undertakes to comply with all of the applicable legal and regulatory provisions.
As such, the Subscriber undertakes in particular not to share Content, whatever its nature or form:
– which may constitute justifying crimes against humanity or war crimes, advocating Nazism, justifying crimes or offences, challenges the existence of crimes against humanity or recognised genocides, violating the dignity of a human being;
– which is violent or pornographic, paedophilic or which may harm minors;
– which is contrary to public policy or to accepted principles of morality;
– which is defamatory or abusive, outrageous, misleading or slanderous towards third parties, a natural or legal person;
– which constitutes an act of counterfeiting, unfair competition or free riding;
– which is racist, xenophobic, negationist or damaging to the honour or reputation of others, inciting discrimination, hatred or violence towards a person or a group of people because of their origin, their gender, their family situation, their physical appearance, their name, their state of health, their disability, their genetic characteristics, their customs, their true or supposed sexual orientation, their age, their political opinions, their trade union activities, their true or supposed belonging to a specific ethnicity, nation, race or religion;
– which invades privacy, violates privacy or the image rights of individuals;
– which contains viruses, worms, Trojan horses, any file or computer program likely to interrupt, destroy or limit the functionality of any computer or computer network linked directly or indirectly to NEW OXATIS activities;
– which threatens a person or a group of people;
– which incites to commit an offence, a crime or an act of terrorism;
– which violates privacy of correspondence; or
– which allows a third party to directly or indirectly obtain pirated software, software allowing acts of piracy and intrusion into computer and telecommunication systems, viruses and other logic bombs and in general any software tool or another which infringes the rights of others and the security of people and property.
The Subscriber also undertakes not to create hypertext links with sites which do not respect these same principles.
In addition, with regard to Product Presentation and e-commerce Websites, the Subscriber undertakes:
– not to promote or market products whose marketing is prohibited, and in particular certain animal species and animal parts, certain firearms and explosives, certain classified cultural goods, goods subject to embargo, stolen and concealed goods, credit cards, identity documents issued by the State (identity cards, passport), certain lottery tickets, certain tickets or contracts (without travel resale rights), illegal decoders, drugs and related objects, surveillance equipment prohibited by law, counterfeit currencies and stamps, financial instruments (stocks, bonds, securities and other certificates), franking machines, prohibited or regulated goods, materials intended for opening locks, regulated medicines, organs and products of the human body, dangerous and illegal substances, tobacco and related products;
– to carefully read the contracts, regulations and sales conditions relating to each product as they are likely to restrict the Subscriber’s right to sell this item on their Website; or
– to check that the marketing of these products is not restricted by the administration.
Any breach of these obligations constitutes a reason for suspension, termination of the Subscription Agreement or withdrawal of Content by NEW OXATIS under the conditions of Articles 13 and 14 hereof.
9.2 – Email Accounts used by the Subscriber
9.2.1 – Provision of the Primary Email Address
When registering, the Subscriber gives NEW OXATIS the email address they wish to use as part of their Subscription. This email address is the Subscriber’s Primary Email Address. NEW OXATIS communicates with the Subscriber using this address.
If the Subscriber wishes to change the Primary Email Address, they must immediately inform NEW OXATIS and make the corresponding changes themselves on their personal information pages.
The Subscriber therefore undertakes to regularly read the messages sent by NEW OXATIS to this address. Any communication made by NEW OXATIS to the Subscriber to the Primary Email Address is deemed to have been received and read by the Subscriber.
NEW OXATIS uses this mailbox to send two types of emails:
– emails containing technical information. As it is essential for well-functioning relations between NEW OXATIS and the Subscriber, accepted by the Subscriber, it is impossible to unsubscribe from these emails; and
– business information emails (software upgrade, new services etc.). For this latter type of email, the Subscriber is free to unsubscribe at any time using the link provided for this reason in all outgoing emails.
9.2.2 – NEW OXATIS Email Account
At the Subscriber’s request, NEW OXATIS can assign one or more mailboxes to the Subscriber depending on the subscribed services (“NEW OXATIS Email Accounts”). This mailbox service exclusively allows the Subscriber to capture, read and transmit electronic documents or electronic messages.
The Subscriber undertakes, in the use of this/these NEW OXATIS Email Account(s), to comply with all laws, regulations or rules which could prevent, limit or regulate the circulation of information or data, and without this being exhaustive, to comply with the French Data Protection Act (Informatique, fichiers et libertés) of 6 January 1978 as amended, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation known as GDPR), codes of good conduct and Netiquette, standard practices such as, for example, those established by the CNIL (National Commission on Informatics and Liberty/www.cnil.fr), the SNCD (Syndicat National de la Communication Directe/www.sncd.org), the FEVAD (Fédération des Entreprises de Vente à Distance/www.fevad.com), standard practices of Internet Service Providers and standard practices for the protection of privacy, and for the respect of property rights. It is specified that this obligation is extended to comply with the standards in force in each country targeted by the Subscriber’s email campaign.
As such, the Subscriber:
– warrants NEW OXATIS that the recipients of the email files used for sending, have given their agreement to receive the messages (opt-in email file) or at the very least, that the Subscriber acts within the framework of an exception provided for by the legislation in force and in particular the French Data Protection Act known as “informatique et libertés” of 6 January 1978 as amended and the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation known as GDPR). It is specified that these obligations are applicable to any Subscriber directing their activity towards a user located within the European Union.
– warrants NEW OXATIS that each email message sent will include a right of opposition to receive subsequent communications and that any request will be treated as a permanent cancellation of subscription.
– warrants NEW OXATIS that all the rights of persons provided for by the French Data Protection Act of 6 January 1978 as amended and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation known as GDPR) will be ensured by the Subscriber.
– agrees not to use their NEW OXATIS Email Account for misleading or unsolicited advertising, such as spam, or for purposes contrary to standard practices and ISP regulations without this list being exhaustive.
– agrees not to use their NEW OXATIS Email Account for illicit activities. The Subscriber is duly informed that they are in particular prohibited from sending and/or holding and/or sharing data of a pornographic, paedophilic, hateful and/or racist nature or inciting hatred or discrimination.
9.3 – Use of Services
The Subscriber must ensure that their collaborators and employees use the NEW OXATIS Services in accordance with the instructions provided by NEW OXATIS hereof. NEW OXATIS cannot compensate for a Subscriber’s lack of training or that of their collaborators if it appears that the Subscriber does not have the skills required to use the Services.
The subscriber must notify immediately and in detail of any problems encountered in the operation of the Services.
They remain responsible for the operations carried out in their position, even under the supervision of a NEW OXATIS technician.
9.4 – Non-abusive use of server resources
NEW OXATIS Services are subject to non-abusive use of the resources made available.
The following are considered abusive, in particular:
– the Website being visited by more than 1,000 customers per minute;
– access to online or telephone support in proportions exceeding 5 times the average of NEW OXATIS users over the previous monthly period;
– use of the Site for the wrong purposes, in particular the pooling of services and their retail resale;
– use which disrupts or degrades the NEW OXATIS infrastructure;
– truncated commission on the turnover due to improper use of the order management system;
– Web Services / API: in proportions exceeding 5 times the average of NEW OXATIS users over the previous monthly period;
– disk space: in proportions exceeding 5 times the average of NEW OXATIS users over the previous monthly period.
9.5 – GDPR
As a result of Article 9.1, as data controller of their website, the Subscriber ensures compliance with its obligations regarding the General Data Protection Regulations (GDPR) and to their customers.
One of the obligations related to the new European regulation on the protection of personal data which entered into force in May 2018, relates to the keeping of a register of processing operations listing all the processing operations carried out. NEW OXATIS offers this feature from the customer menu of the administration tool.
10 – NEW OXATIS’ COMMITMENTS
10.1 – Continuity of Services
NEW OXATIS undertakes to make every effort to ensure the continuity of Services to Subscribers, subject to Articles 9.3, 12, 13 and 14 hereof.
In any event, NEW OXATIS is only bound towards the Subscriber by an obligation of means and cannot be held responsible for any delay in the performance of the Services. In addition, NEW OXATIS cannot be held liable in the event of reckless application or lack of application of the directions for use provided as part of online and telephone assistance or advice not coming from NEW OXATIS.
NEW OXATIS cannot be held responsible for the quality of the services of its Partners since the Subscriber has freely contracted this service with the Partner.
In the event of unavailability, by NEW OXATIS:
– for a total period of less than 3% of the monthly period, no financial compensation is due;
– for a total period between 3% and 6% of the monthly period, the subscription period will be shifted in proportion to the period of unavailability;
– for a period greater than 6% of the monthly period, the customer will be credited with a month of service of the current Price Plan type on their Website
Subscribers whose Website is subject to abusive use of the NEW OXATIS platform are excluded from these compensations.
10.2 – Connecting Subscribers with Partners or Internet Expertise Centres
NEW OXATIS offers its Subscribers the involvement of third-party Partners and Internet Expertise Centres among its network of qualified professionals.
The Subscriber remains free to enter into a contract, or not, with the Partner or the Internet Expertise Centre concerned.
In any case, if the Subscriber and the Partner or the Internet Expertise Centre enter into a contractual relationship for the provision of Services, NEW OXATIS must be considered as a third party to this contractual relationship, the latter exercising no control over the performance of its Partner over which they exercise no subordinate relationship.
10.3 – Hosting services
The Website created by the Subscriber is hosted on NEW OXATIS servers. For this purpose, NEW OXATIS will be qualified as host under Article 6 I 2) of the Act of 21 June 2004 for confidence in the digital economy.
NEW OXATIS reserves the right to suspend access at any time, partially or totally, to the NEW OXATIS Solution, the Services, and where appropriate the Subscriber’s Website, without being held liable and without any refund in the following cases:
– in the event of failure of the computer systems, software and its server’s hardware;
– in the event of a major attack on the system by third parties, such as a denial-of-service attack or any other existing or future technique;
– in the event of a cyber-attack against a particular Website;
– for reasons of maintenance and/or improvement, and in particular modification of the characteristics of the technical infrastructures and of its suppliers.
The Subscriber expressly accepts that a statement indicating that NEW OXATIS is the host of their Website is placed on their Website, so that NEW OXATIS is able to comply with the obligations to which it is subject to as a Website host in particular under the Act of 21 June 2004 for confidence in the digital economy. The Subscriber undertakes to ensure that this statement is always visible to internet users and to not hide it by any means or technique whatsoever.
10.4 – Notification procedure
If internet users become aware of illegal Content and want to have it removed, they are encouraged to alert NEW OXATIS either by registered mail with acknowledgment of receipt, in accordance with the procedure set out in Article 6 I 5) of the Law of 21 June 2004, or by using the form available for this purpose on the page www.oxatis.com/illegal-content-declaration.htm and by completing all the necessary information such as:
– the notification date;
– surname, name, occupation, address, nationality, date and place of birth if it’s an individual;
– corporate form, name, head office and registration number (SIRET or equivalent) if it’s a company;
– a description of the litigious facts and their precise location;
– the reasons why the content should be removed, including the legal and factual grounds;
– a copy of the message sent to the author or publisher of the litigious content to request its withdrawal, modification or interruption, or proof demonstrating that it was not possible to reach them.
Upon receipt of such notification, NEW OXATIS, in its capacity as host, undertakes to promptly withdraw any obviously illegal content as soon as it becomes aware of it.
NEW OXATIS may also ask the Subscriber who made this Content available to provide any element that justifies the legality of this content.
If NEW OXATIS receives a notification establishing content which constitutes violations justifying crimes and offences, crimes against humanity, incitement to racial hatred or relating to child pornography, NEW OXATIS will inform the competent authorities. Only the Subscriber is responsible for the Content published as well as its nature and quality.
A user who presents Content to NEW OXATIS as illicit in order to obtain its withdrawal knowing that this information is inaccurate may be held responsible.
10.5 – Telephone support services
As part of the telephone support, NEW OXATIS will endeavour, within the framework of an obligation of means, to answer as soon as possible, the Subscriber’s questions related to the use of the Services provided by NEW OXATIS excluding Services provided by third parties.
The number of telephone calls is not limited, but the lack of a theoretical limit should not lead to misuse and fraudulent use of the Service. In no way can NEW OXATIS compensate for the customer’s lack of training if it appears that the customer does not have the skills required to use the platform.
Only the NEW OXATIS Account holder is entitled to contact the telephone support.
Telephone support is provided by qualified technical personnel. Hours of operation are Monday to Friday inclusive from 9am to 6pm, with the exception of bank holidays. NEW OXATIS reserves the right to modify its hours and will notify the Subscriber of the new hours by any means convenient.
11 – INTELLECTUAL PROPERTY
11.1 – Property
11.1.1 – NEW OXATIS Solution
NEW OXATIS retains full ownership of the NEW OXATIS Solution made available to the Subscriber for the creation of the Website and grants the latter, in return for the financial terms set out in the Specific Conditions, a non-exclusive and non-assignable license to use this technology worldwide and for the duration of the Subscription Agreement.
This user license authorises the Subscriber to use the NEW OXATIS Solution to create their Website for their personal use only. This license is non-exclusive, non-transferable and non-assignable. The Subscriber therefore agrees not to sublicense to third parties or commercially exploit the NEW OXATIS Solution or be subject to legal action.
The Subscriber in any case agrees not to extract, reproduce, or damage, in any way whatsoever, the NEW OXATIS Solution.
11.1.2 – NEW OXATIS websites
The site www.oxatis.com, as well as all the content sites for blogs, forums, online help, and their local versions (.FR, .IT, .ES, .CO.UK, etc.), published by NEW OXATIS, are the exclusive property of NEW OXATIS.
All the information protected by intellectual property rights made available to the Subscriber through these websites remain the exclusive property of NEW OXATIS.
NEW OXATIS Subscribers recognise and accept that these websites published by NEW OXATIS and their content – including, without this list being exhaustive, texts, software, music, sounds, photographs, videos, drawings or other materials contained in the advertisements and commercial information produced and presented by the sites – are likely to be protected by intellectual property rights (trademarks, copyrights, designs and models or patents). Subscribers, Internet Expertise Centres, Partners are not authorised to copy, use, reproduce, distribute all or part of these sites and/or their content or to create derivative works from all or part of these sites and/or their content without having obtained express agreement from NEW OXATIS.
11.1.3 – Subscriber’s Website
By explicit agreement and in return for the financial conditions agreed hereunder, NEW OXATIS grants the Subscriber an exclusive, non-assignable and non-transferable license relating to the deliverables requested by the Subscriber carried out by NEW OXATIS to personalise their Website.
This license includes the right of reproduction and representation, the right of adaptation, arrangement, translation but excluding all commercial exploitation rights.
This license is granted globally, for the duration of the intellectual property rights on the deliverables.
11.1.4 – Contents
Furthermore, NEW OXATIS may not claim any property rights relating to all of the Content provided by the Subscriber, or published by third parties to the Subscription Agreement, on the Website.
The Subscriber warrants that they hold the intellectual property rights or the authorisations necessary for the use of the Contents of their Website. As such, the Subscriber indemnifies NEW OXATIS against any third-party claim relating to the ownership of this Content as well as any direct or indirect damage suffered by NEW OXATIS as a result. NEW OXATIS cannot in any circumstance be held responsible for the Content shared by the Subscriber.
In the event of a breach of this Article by the Subscriber, NEW OXATIS will be in a position to withdraw the litigious content, close the Website concerned as well as terminate the Subscription Agreement under the conditions described hereof.
11.2 – Peaceful Possession Guarantee
The Subscriber indemnifies NEW OXATIS against any action in the event of a dispute relating to the Contents of its Website.
The Subscriber explicitly authorises NEW OXATIS to use, at the Subscriber’s expense, proportionate means to defend themselves against any legal action.
If NEW OXATIS is accused by email or telephone, NEW OXATIS will communicate to the Subscriber, via the support system, the items which are the subject of the dispute.
The Subscriber undertakes to take all measures to restore the situation and to respond to the complainant within 7 days, by registered letter, of which they will provide a copy to NEW OXATIS.
If OXATIS is accused by letter, registered letter, fax or other document coming from a lawyer, a legal organisation or a justice representative, NEW OXATIS will immediately transfer the management of the dispute to its lawyers and will invoice the Subscriber concerned, in instalments of €500 before tax, for the services to cover the sums incurred day to day to ensure its defence.
11.3 – Fees for responding to requests from administrative services
The Subscriber agrees to pay the sum of €300 before tax for each request for information from government departments such as the DGCCRF (General Directorate for Competition Policy, Consumer Affairs and Fraud Control), tax and customs services, the CNIL (National Commission on Informatics and Liberty) and any other public body which has the right to request NEW OXATIS to gather information on the operation of its Website.
This sum will be invoiced by NEW OXATIS 14 days after delivery by NEW OXATIS of the requested elements. NEW OXATIS may provide the Subscriber with proof of the administration’s request but not the details of its content, which remains confidential.
11.4 – Use of Subscriber’s references and information
Likewise, the Subscriber accepts that NEW OXATIS may use these references as part of the “Testimonials” section of the NEW OXATIS Website.
The Subscriber expressly authorises NEW OXATIS to reproduce their logo or any other element of their Website protected by intellectual property rights in this context.
The conditions for use of the Subscriber’s contact details and elements of the Website as part of the “Testimonials” section may be specified in writing if the Subscriber expressly requests it from NEW OXATIS.
The Subscriber has the right to refuse this use by expressing their refusal in writing to NEW OXATIS.
12 – PERSONAL DATA PROTECTION
12.1 – Collected data
To use the NEW OXATIS Website and the Services it offers, Subscribers and Users are required to provide NEW OXATIS with personal information about them.
In particular to benefit from the Services the Subscribers and Users must provide the data required in the mandatory fields during the registration procedure.
In the absence of a response, registration for the proposed Service cannot be carried out.
12.2 – Purposes
The data provided when registering for the NEW OXATIS Website and using the Services will be processed for the following purposes:
– access to Services;
– sending NEW OXATIS newsletters;
– producing statistics on the use of the NEW OXATIS Website;
– improving marketing and promotional efforts as well as the content and offers on the NEW OXATIS Website;
– receiving personalised offers.
12.3 – Data recipients
The data is intended for NEW OXATIS personnel for managing the NEW OXATIS Website and Services. Certain data may be accessible to internet users and may be transferred to commercial companies for sales prospecting in an anonymous format.
However, certain information, such as password, credit card number and bank account number is not communicated to these companies, even in compiled form.
Under special circumstances, NEW OXATIS may be required to disclose the data, when these are required by judicial and/or administrative authorities.
12.4 – Data retention
Subscriber data is held confidentially by NEW OXATIS for the purposes of the contract, its execution and in compliance with the law.
The data is held by NEW OXATIS for the time strictly necessary to achieve the purposes referred to above. Beyond this period, it will be kept for exclusively statistical purposes and will not result in any exploitation.
NEW OXATIS is also obliged to retain the data which allows identification of users making illegal contents available, for the purpose of transmitting this data to the competent authorities on judicial request to the exclusion of any other third party, under the conditions provided for by the law.
12.5 – Data transfer
As part of the normal course of its activities, NEW OXATIS collects and processes information concerning Subscribers and Users in France and worldwide. It is possible that certain information is hosted by a technical provider in France or in any other country in the world, the role of the latter being strictly limited to a technical service for the storage of information.
12.6 – Subscribers’ and Users’ rights
In accordance with Act N° 78-17 of the French Data Protection Act of 6 January 1978 and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation known as GDPR) NEW OXATIS ensures the implementation of the rights of the individuals concerned
It is noted that the Subscriber and the User whose personal data are processed has the right to access, rectify, update, portability and erasure of information concerning them, in accordance with the provisions of Articles 39 and 40 of the French Data Protection Act as amended, and the provisions of Articles 15, 16 and 17 of the European General Data Protection Regulation (GDPR).
Thus, Subscribers and Users can demand that data concerning them which is inaccurate, incomplete, ambiguous or outdated be corrected, completed, clarified, updated or deleted.
In accordance with the provisions of Article 38 of the French Data Protection Act as amended and the provisions of Article 21 of the GDPR, the Subscriber or the User may also, for legitimate reasons, object to the processing of data concerning them, without reason and without cost.
If they wish to consult the data provided to NEW OXATIS, cancel their subscription for all or part of the Services, the newsletter or any other service, or exercise their rights, they may either (i) carry out the consultation and/or the necessary modifications of the data on their personal information pages, or (ii) send this request by registered letter with acknowledgment of receipt to the following address: NEW OXATIS – Service Client – Immeuble Acropolis – 171 bis chemin de la Madrague Ville – 13002 Marseille, France or by email to [email protected]
It is specified that the Subscriber or User must be able to prove their identity, either by scanning in an identity document, or by sending NEW OXATIS a photocopy of their identity document.
12.7 – Cookies
The information stored on your device (cookies) or any other element used to identify the Subscriber or the User for audience statistical purposes is not kept beyond a period of thirteen (13) months.
12.8 – Security
NEW OXATIS undertakes to implement all technical and organisational measures to ensure the security of our processing of personal data and the confidentiality of your data, pursuant to the French Data Protection Act and the European General Data Protection Regulation (GDPR) and of French Security Act n° 2018-133 of 26 February 2018 “portant diverses dispositions d’adaptation au droit de l’Union européenne dans le domaine de la sécurité” [laying down various provisions for adaptation to European Union law in the field of security].
As such, NEW OXATIS takes the necessary precautions, with regard to the nature of your data and the risks presented by our processing, to preserve the security of the data and, in particular, prevent it from being distorted, damaged, or that unauthorised third parties have access to it (physical protection of premises, authentication process for our customers with personal and secure access via confidential login details and passwords, logging of connections, encryption of certain data etc.).
12.9 – Subcontracting
In addition, with regard to the operation by the Subscriber of their Website, it is noted that NEW OXATIS will have the status of subcontractor within the meaning of Article 28 of the European General Data Protection Regulation (GDPR).
As such, NEW OXATIS undertakes to:
– take all the adequate precautions with regard to the nature of the data and the risks presented by the processing to preserve the security of the Subscriber’s data and Content and in particular to prevent any deformation, damage, loss and/or any access by third parties not previously authorised, and to present sufficient guarantees regarding the implementation of appropriate technical and organisational measures, so that the processing meets the requirements of the GDPR and guarantees the protection of human rights.
– not process, consult data and content for purposes other than the performance of the services provided hereof;
– only process, consult Subscriber’s data and Contents within the framework of the instructions and the authorisation of the latter,
– not insert extraneous data in the Subscriber’s databases,
– take any measure to prevent any misuse, malicious or fraudulent use of the Subscriber’s data and Content.
13 – NEW OXATIS’ WARRANTIES AND LIABILITIES
NEW OXATIS is in no way responsible for the Content it hosts via the Subscribers’ Websites.
It is noted that NEW OXATIS exercises no control, in any form whatsoever, on the nature and characteristics of the data that could pass through or be stored by its Services. As such, NEW OXATIS cannot be held responsible in particular:
– for the content of the Subscriber’s messages sent through the NEW OXATIS Services;
– for damage resulting from the loss, alteration or fraudulent access to the data stored and/or hosted by NEW OXATIS.
For all purposes, it is specified that NEW OXATIS not being an editor of the Subscribers’ Websites, cannot be held liable in any way as such.
Furthermore, NEW OXATIS cannot in any case be held liable for any damage of any kind whatsoever, resulting directly or indirectly from any service performed by one of its Partners in accordance with the stipulations of Article 10.2 hereof.
NEW OXATIS cannot be held liable for any indirect damage such as, in particular, loss of income, customers or data, any financial or commercial damage, any disturbance to business activities, any shortfall or any immaterial damage.
In any event and regardless of the basis of NEW OXATIS’ liability, and that including under Act n° 98-389 of 19 May 1998, damages and any compensation owed by NEW OXATIS to the Customer all causes combined may not exceed the amounts paid by the Customer for the subscribed Service in the year during which the incident occurred.
NEW OXATIS cannot be held responsible for the elements and content available on other websites or internet sources accessible by means of hypertext links inserted on the Websites (and in particular due to advertisements, products, services or any other information).
In accordance with the provisions of Articles 10.3 and 14, NEW OXATIS reserves the right to withdraw or suspend access to any Content following receipt of a notification from a Subscriber or a third party, or if it has actual knowledge of the clearly illegal nature of the Content. NEW OXATIS cannot be held responsible for this withdrawal or suspension.
NEW OXATIS cannot guarantee to Subscribers that no error will appear during the use of the Website. NEW OXATIS does not guarantee that the results, information and services obtained are free from any error or defect.
NEW OXATIS is also dependent on the quality of the internet network. Consequently, NEW OXATIS does not guarantee the reliability of the Services and does not ensure the correction of defects found on the internet network. Thus, NEW OXATIS cannot be held responsible for difficulties in sharing the Content or, more generally, for any disruption of the internet network affecting the use of the Service. NEW OXATIS makes no guarantee as to the conditions of distribution, the quality of distribution, transmission and accessibility of the Content.
It is expressly agreed between the parties and accepted by the Subscriber that the stipulations of this clause will continue to apply even in the event of a resolution of these Terms established by a final court decision.
These provisions establish a distribution of risks between NEW OXATIS and the Subscriber. The price reflects this distribution as well as the limitation of liability described.
14 – CONSEQUENCES OF TERMINATION
NEW OXATIS may also prohibit the Subscriber’s access to all or part of the Services or suspend the Subscriber’s Account at any time and without compensation for the period it deems necessary.
When possible, NEW OXATIS will inform the Subscriber involved of the withdrawal of the Content or the suspension of their Account and of the reasons which led to this withdrawal or suspension.
15 – TERMINATION AND SLEEP MODE
15.1 – Termination
NEW OXATIS may decide to suspend, by right, the Subscription and access to the Services, without compensation for the Subscriber, in the following cases:
– In the event that NEW OXATIS becomes aware of disloyalty, and if there is urgency to put an end to the actions concerned;
– When the actions of the Subscriber endanger, in any way whatsoever, the functioning of the NEW OXATIS Solution and its technology:
– When Content of any kind whatsoever, includes a transaction prohibited under the laws, regulations or standard practices in force in the country concerned
In the aforementioned cases, the Subscription Agreement may be terminated by NEW OXATIS at any time after formal notice by registered letter with acknowledgment of receipt has remained unsuccessful at the end of a period of ten (10) days, without the Subscriber being able to claim any compensation.
15.2 – Sleep mode
When the Subscriber decides to voluntarily unsubscribe from all the Services to which they had subscribed and/or when the Subscription Agreement is cancelled under the conditions of Article 14.1 hereof, NEW OXATIS may proceed to place the Website(s) of the Subscriber concerned in Sleep Mode for a period of twelve (12) months before the permanent destruction of the data relating to this Website.
15.3 – Fate of the Website and its data at the end of Sleep mode
At the end of the twelve (12) months of Sleep mode, and unless a new Subscription Agreement is concluded in compliance with all of the obligations stipulated hereof, the Website and all of its elements will be permanently destroyed by NEW OXATIS.
NEW OXATIS will only keep past invoicing data and do this within the legal term for retaining data.
16 – DATA RECOVERY AND DATA MIGRATION
The Subscriber has the option to extract all of their data, Deliverables and other Content in a standardised workable format, directly from their Account.
In the event that a Subscriber would like NEW OXATIS to assist them with the migration of their Website to servers other than those of NEW OXATIS, either after the purchase of their Website by a third party, or for any other reason, the Subscriber must make the request to NEW OXATIS who, upon prior quote, may migrate data from the Website to the new servers indicated by the Subscriber.
17 – MISCELLANEOUS
17.1 – Force majeure
There is force majeure in contractual matters when an event beyond the control of the debtor, which could not have been reasonably foreseen at the conclusion of the contract and whose effects cannot be avoided by appropriate measures, prevents the debtor’s performance of their obligation.
If the impediment is temporary, the performance of the obligation is suspended unless the resulting delay justifies termination of the contract. If the impediment is permanent, the contract is terminated, by right, and the parties are exempted from their obligations under the conditions set out in Articles 1351 and 1351-1 of the French Civil Code.
It is specified that, in such a situation, the Subscriber cannot claim the payment of any compensation and cannot seek recourse from NEW OXATIS.
In the event of one of the above events, NEW OXATIS will endeavour to inform the Subscriber as soon as possible.
17.2 – Partial invalidity
If for any reason whatsoever, all or part of one of the provisions listed above were to be deemed invalid, the other provisions would still remain in full effect.
In the event of difficulty of interpretation between any of the titles appearing at the head of the clauses, and any one thereof, the titles will be declared non-existent.
17.3 – Independence of the parties
17.4 – Confidentiality
NEW OXATIS and the Subscriber as well as their collaborators respectively undertake to consider as confidential, for the entire duration of the Subscription Agreement and one (1) year after its expiry – for whatever reason – all documents, software, expertise, data and tangible and intangible information, communicated by the other party for carrying out these Terms and not to use them or to make use of them outside the requirements of the Subscription Agreement.
This commitment remains in place during the time the Subscriber’s Website is in Sleep mode.
17.5 – Transfer of Subscription Agreement
The Subscriber may in no case transfer, in return for a payment or not, in whole or in part, in any form whatsoever, the Subscription Agreement or the benefit of the use of the subscription or use a third party replacement to carry out their obligations, without the express prior consent of NEW OXATIS.
For the proper performance of its commitments, NEW OXATIS reserves the right to assign, transfer or give to a third party, in whatever form, all or part of the rights and obligations hereof or use a third party replacement to carry out all or part of the rights and obligations hereof.
17.6 – Notification/Complaint
Unless otherwise specified, any notification, complaint and/or observation from the Subscriber or a User must be sent to NEW OXATIS by registered letter with acknowledgment of receipt to the following address:
171 bis chemin de la Madrague Ville
13002 Marseille, France
17.7 – Applicable law and jurisdiction
The Party wishing to implement the negotiation process must inform the other Party by registered letter with acknowledgment of receipt, indicating the elements of conflict. If at the end of a period of one (1) month, the Parties cannot reach an agreement, the dispute will be submitted to the competent court indicated above. The statute of limitations will be suspended from the implementation of the clause, i.e. the date of receipt of the information document sent by registered letter with acknowledgment of receipt. The suspension of the statute of limitations will end on the date of signing a conciliation or non-conciliation record.
In the event of a refusal by one of the Parties to sign the said record, the other Party may take note of this refusal by informing them that in the absence of a response on their part within five (5) working days, referral to the competent judge will be possible. Throughout the negotiation process and until its conclusion, the Parties refrain from exercising any legal action against each other and for the conflict subject to negotiation.
By way of exception, the Parties are authorised to take advantage of the interim proceedings jurisdiction or to request pronouncement of an order on motion. Any possible action before the court for interim proceedings or the implementation of an order on motion procedure does not result in any waiver, on the part of the Parties, of the amicable settlement clause, unless expressly agreed otherwise.