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GENERAL TERMS AND CONDITIONS OF USE

PREAMBLE

DAXIUM, a French simplified joint-stock company, with share capital of €258,220, whose registered office is situated at 23 rue Balzac 75008 Paris (hereinafter DAXIUM) publishes a complete solution called DAXIUM AIR reserved exclusively for professionals and enabling any organisation to create and distribute a standard or customised mobile application, very simply, suited to a large number of professions.

Use of the Daxium Air software package infers de facto express acceptance without restriction or reservation of these General Terms and Conditions, which take precedence over any other stipulation of the Customer.

DAXIUM reserves the right to amend these General Terms and Conditions of Use, as well as the prices for its services. The USER must be informed of these amendments beforehand by any means, with it being specified that each amendment will come into effect thirty (30) days after its notification.

ARTICLE 1.   DEFINITIONS

In the context of these General Terms and Conditions of Use, the following terms will have the meaning given below:

  • "ACCOUNT":  means the access portal to the DAXIUM AIR SOFTWARE PACKAGE and to the related SERVICES reserved for the CUSTOMER, accessible from the http://www.daxium-air.com website. This is accessed using the CUSTOMER's IDENTIFIERS.
  • "CONTRACT": means these GENERAL TERMS AND CONDITIONS OF USE as well as the SPECIAL TERMS AND CONDITIONS and all Appendices.
  • "CUSTOMER" or "USER": means the individual or legal entity contracting with DAXIUM in the context of its professional activity and having access to the DAXIUM AIR SOFTWARE PACKAGE and to the SERVICES.
  • "DAXIUM SOLUTION": means all of the software, IT developments, SOFTWARE PACKAGES, databases, as well as their DOCUMENTATION, property of DAXIUM and for which DAXIUM grants the CUSTOMER a user licence.
  • "DOCUMENTATION": means the user documentation accessible online at the address: http://doc.daxium-air.com.
  • "IDENTIFIERS": mean the confidential access code and the password enabling access to the ACCOUNT by the CLIENT. These IDENTIFIERS are provided by DAXIUM when creating the ACCOUNT and are for the CUSTOMER's exclusive use, which is solely responsible for them.
  • "DAXIUM AIR": means the 100% SAAS solution published and hosted by DAXIUM accessible at the address http://www.daxium-air.com.
  • "SERVICES": means all of the services related to the DAXIUM AIR SOFTWARE PACKAGE and the optional services delivered to the CUSTOMER in the context of this CONTRACT.

ARTICLE 2.   CONTRACTUAL DOCUMENTS

The CONTRACT is comprised of the following contractual documents:

  • The Special Terms and Conditions and their Appendices.
  • The General Terms and Conditions in effect such as published on the DAXIUM site at the address http://www.daxium-air.com.

In the event of contradiction or discrepancy between these Contractual Documents, they will take precedence in the order in which they are listed above.

ARTICLE 3.   PURPOSE

The purpose of these GENERAL TERMS AND Conditions OF USE is to set out:

  • The rights and terms of use by the CUSTOMER of the DAXIUM SOLUTION.
  • The terms of delivery of the related SERVICES.

Therefore, by means of the signing hereof, the CUSTOMER may access the DAXIUM AIR SOFTWARE PACKAGE via the internet, use it and benefit from the related functionalities under the conditions set out herein.

ARTICLE 4.   USER RIGHTS

DAXIUM grants the CUSTOMER a non-exclusive, non-transferable and non-assignable user right to the DAXIUM SOLUTION; this user licence is granted in return for payment by the CUSTOMER of the sums detailed in the SPECIAL TERMS AND CONDITIONS.

The licence is granted for the list of users set out in Appendix 1 of the Special Terms and Conditions.

However, it is specified that no provision of the CONTRACT can be interpreted as conferring on the CUSTOMER, in any way whatsoever, a right other than a user right. The rights that are not expressly conferred on the CUSTOMER by the CONTRACT are reserved by DAXIUM.

Therefore, DAXIUM authorises the CUSTOMER to use the related DAXIUM SOLUTION within the limit of the rights acquired and in accordance with its purpose such as described herein.

ARTICLE 5.    CONDITIONS FOR USE – TERMS OF ACCESS

5.1.      Access conditions

After online validation of these GENERAL TERMS AND CONDITIONS OF USE, DAXIUM will inform the CUSTOMER of the opening of its personalised space, enabling it to access the DAXIUM SOLUTION.

5.2.      Opening of the ACCOUNT

Access in SAAS mode to the DAXIUM SOLUTION and to the SERVICES gives rise to the opening of an ACCOUNT.

Prior to its request for access and opening of an ACCOUNT, the CUSTOMER must send DAXIUM the information requested in Appendix 1 of the Special Terms and Conditions.

The CUSTOMER agrees to ensure the accuracy of the information concerning it and to inform DAXIUM when this information needs to be updated. If the CUSTOMER information is not accurate or complete, DAXIUM reserves the right to temporarily suspend or permanently cancel the CUSTOMER's access, immediately and without notice.

Furthermore, it is expressly stipulated that DAXIUM has the option to refuse to open an ACCOUNT without having to justify this decision. This refusal may be due to the following reasons:

  • When the CUSTOMER has already had its CONTRACT terminated due to a breach of its contractual obligations;
  • When the CUSTOMER has not fully paid the sums that it may owe to DAXIUM under a previous CONTRACT;
  • In the case of attempted fraud by the CUSTOMER to the detriment of DAXIUM.

5.3.      Accessibility

The DAXIUM SOLUTION is accessible 24/7 except in the case of a force majeure event or an event outside DAXIUM's control and subject to any work required for the correct operation of the DAXIUM SOLUTION.

It is also specified that DAXIUM will do everything possible to guarantee the availability of the DAXIUM SOLUTION. However, DAXIUM cannot be held liable for failures that are not its fault and that may affect accessibility to the DAXIUM SOLUTION and to the SERVICES, whatever the extent and duration.

Furthermore, the CUSTOMER declares that it has been informed that DAXIUM may be forced to temporarily interrupt access to all or part of the DAXIUM SOLUTION and the related SERVICES due to maintenance operations, improvement of the DAXIUM AIR SOFTWARE PACKAGE or related software packages, due to a technical audit or in the event of an anomaly or risk of failure. In these cases, DAXIUM cannot be held liable for any compensation or damages towards the CUSTOMER, in any way whatsoever.

DAXIUM reserves the right to change at any time the features of the technical infrastructures made available to the CUSTOMER, as well as the choice of its suppliers and/or any sub-contractors or the technical recommendations required for the operation of the DAXIUM SOLUTION and related SERVICES.

5.4.      Minimum configuration

The technical prerequisites required for smooth operation of the DAXIUM AIR SOFTWARE PACKAGE and related SERVICES are specified in the SPECIAL TERMS AND CONDITIONS.

It is also recalled that the CUSTOMER is responsible for the hiring or purchase of these terminals, as well as their installation, maintenance and the cost of internet access.

5.5.      Confidentiality of Identifiers

The CUSTOMER accesses the DAXIUM SOLUTION and related SERVICES by means of IDENTIFIERS, sent to the administrator designated by the CUSTOMER. The administrator thus designated has a confidential access code enabling it to create user sub-accounts. It is specified that all the persons thus designated by the CUSTOMER and its administrator will be referred to below as the "USERS".

The access and user rights of the DAXIUM SOLUTION and SERVICES are strictly personal and, therefore, cannot be transferred to an individual or legal entity other than those identified in the SPECIAL TERMS AND CONDITIONS.

The CUSTOMER will be responsible for the use made of its IDENTIFIERS with a view to use of the DAXIUM SOLUTION and the SERVICES. It is solely responsible for use of these confidential IDENTIFIERS.

Therefore, for example, the CUSTOMER will solely bear the consequences of use that does not comply with the access instructions for managing the pages provided by the DAXIUM AIR SOFTWARE PACKAGE, and for wrongful use of these elements.

The CUSTOMER declares that it has been informed that the IDENTIFIERS are for the exclusive use of the USERS such as identified in Appendix 1 and can by no means be loaned, granted or assigned to third parties free of charge or in return for payment. In fact, it is specified that any use of the DAXIUM SOLUTION and SERVICES that does not comply with their purpose, will constitute a breach of the operating rights of DAXIUM, penalised for infringement.

ARTICLE 6.   FINANCIAL CONDITIONS

Under application of the licences and SERVICES subscribed to by the CUSTOMER such as listed in the table shown in article 2 of the SPECIAL TERMS AND CONDITIONS, the CUSTOMER agrees to pay the invoices sent to it by DAXIUM under the following conditions:

The prices set out in Article 2 above are those in effect on the day of the signing hereof, after deduction, where applicable, of any reduction, discount or rebate granted.

The amount of the sums due to DAXIUM do not include tax.

The CUSTOMER is solely responsible for the payment of any taxes and duties related to performance of the CONTRACT.

The fees relating to:

  • the DAXIUM AIR subscription & related Services;
  • optional services;

subscribed to by the CUSTOMER and listed in Article 2 of the SPECIAL TERMS AND CONDITIONS are payable annually, in advance, on the date the CONTRACT commences for the first year, on the anniversary date of the CONTRACT for successive periods of performance of the CONTRACT.

It is specified that 30% of the total amount of the fees for the first year will be paid when the CONTRACT is signed.

In the event of a price increase, the CUSTOMER will be informed two (2) months before the annual expiry. If it does not terminate, the CUSTOMER will be deemed to have accepted these new price conditions.

DAXIUM will send its invoice within thirty (30) days preceding the renewal date of the CONTRACT.

The sums due to Daxium are fully payable within thirty (30) days following the date of receipt of the invoice from DAXIUM.

The receivables of DAXIUM are payable at the creditor's address and not at the debtor's. Any delay in payment on the agreed due date by the CUSTOMER will entail, on DAXIUM's choosing, suspension of the payment terms and immediate payability of all of the sums due.

In the event of non-payment within the contractual periods, any unpaid sum will automatically bear interest day-to-day until the date of its full payment in principle, interest, expenses and incidental costs, at the rate of three and a half times the rate of legal interest, and this, without any previous formality, and notwithstanding damages that DAXIUM reserves the right to demand by legal means.

Any costs (court costs, costs, disbursements and counsel and bailiff fees) for recovery of the sums due and unpaid by the CUSTOMER are deemed to constitute an incidental expense of DAXIUM's receivable.

ARTICLE 7.   CUSTOMER'S OBLIGATIONS – TERMS OF USE

Since the CUSTOMER is a professional, and a well-informed user with real expertise in the area of IT, it acknowledges that it is its responsibility to carry out or have a third party carry out a detailed analysis of its needs and objectives in order to make its choice in full knowledge of the facts.

The CUSTOMER takes full responsibility for implementing suitable checking procedures with regard to the security and quality of the data used due to the DAXIUM SOLUTION and the SERVICES, including for the recovery of data in the event of a fault in its environment.

To this end, the CUSTOMER releases DAXIUM from any liability as to the data and content of any nature that are stored or circulated by the CUSTOMER in the context of use of the DAXIUM SOLUTION and SERVICES. The CUSTOMER holds DAXIUM harmless against any recourse from third parties for any reason whatsoever when the action against DAXIUM is related to its use of the DAXIUM SOLUTION and SERVICES.

Furthermore, the CUSTOMER is solely responsible for information stored, used or circulated as part of the use of the DAXIUM SOLUTION and SERVICES. It agrees to provide faithful and quality data, compliant with international legislation and practices, under its sole and exclusive liability.

Thus, the integrity and confidentiality of the CUSTOMER's data will be assured directly by the CUSTOMER, with DAXIUM declining any liability for speed of access or external slowing down or unavailability of the server, whether this unavailability is due to cases of force majeure events or any other cause, and in particular breakdowns in the public telecommunications network, or loss of internet connectivity due to operators, or temporary interruptions due to maintenance.

In general, the CUSTOMER agrees to use the DAXIUM SOLUTION and SERVICES in accordance with their purpose, i.e.:

  • in accordance with the stipulations of these GENERAL TERMS AND CONDITIONS OF USE, the DOCUMENTATION and online help related to the DAXIUM SOLUTION,
  • exclusively for the sole personal and professional needs of the CUSTOMER.

Lastly, the CUSTOMER also agrees not to:

  • have voluntarily installed files containing software packages or any other data or information of which the CUSTOMER is not the owner, assignee or licensee;
  • publish, send, or distribute information of a defamatory or offensive nature, or contrary to public decency, through the intermediary of DAXIUM SOLUTION and the SERVICES;
  • directly or indirectly infringe by any means whatsoever the rights of third parties;
  • undertake illegal activities;
  • make available or download, from the DAXIUM SOLUTION and SERVICES, files containing viruses that may damage the data;
  • obtain or attempt to obtain access, whatever the means used, to zones of the network of DAXIUM or its suppliers, which are identified as restricted use or confidential.

It is agreed between the PARTIES that any breach of this article may result in the temporary suspension or termination as of right of the CONTRACT without prejudice to any damages that DAXIUM may claim.

ARTICLE 8.   DAXIUM'S OBLIGATIONS – SECURITY & CONFIDENTIALITY

DAXIUM is subject to a general best-efforts obligation. To this end, the CUSTOMER expressly acknowledges that DAXIUM is not bound by any performance obligation or increased best-efforts obligation.

DAXIUM undertakes to implement its best efforts to:

  • ensure the maximum logical and physical security of the information systems set up for which it is responsible;
  • reduce to the minimum the risk of a security breach;
  • secure its access and hosting services. To this end, DAXIUM will invite its suppliers to take all measures to protect the CUSTOMER's data.

The data owned by the CUSTOMER and of which DAXIUM may become aware will be considered by DAXIUM and its employees as confidential.

DAXIUM is prohibited from using it outside any maintenance operations by restricted and authorised personnel.

Although DAXIUM undertakes to do what is required to limit risks, DAXIUM cannot however be held liable for the disclosure of these data if such disclosure was not related directly to its work or to that of one of its employees (e.g.; in the event of computer piracy).

ARTICLE 9. LIABILITY

The CUSTOMER can only cite the liability of DAXIUM after having notified it beforehand with an acknowledgment of receipt of the alleged breach and on the condition that DAXIUM has not answered within a period of sixty (60) days from receipt of this formal notice. As DAXIUM is subject to a best-efforts obligation herein, its liability can only be sought after by the CUSTOMER in the event of a proven fault.

In no case can DAXIUM be liable for intangible loss or indirect damage that may be suffered by the CUSTOMER due to the use of DAXIUM AIR SOFTWARE PACKAGE and SERVICES, such as business interruption, loss of customers, commercial loss, damage to brand image, loss or deterioration of data and/or files, business interruptions, act of computer piracy resulting in a loss or the communication to third parties of confidential data owned by the CUSTOMER. To this end, it is specified that any loss suffered by a third party will be treated as indirect damage and, consequently, does not grant entitlement to compensation from DAXIUM.

If DAXIUM's liability is recognised by a final decision of a competent court in relation to the DAXIUM AIR SOFTWARE PACKAGE and SERVICES, the maximum amount of the damages to which it could be ordered to pay would be in any case and whatever the basis of the liability of DAXIUM capped at the price received by DAXIUM corresponding to the CUSTOMER's subscription for the DAXIUM AIR SOFTWARE PACKAGE and related SERVICES over a period of twelve (12) months.

The PARTIES expressly agree that DAXIUM can call on outside contractors to execute all or part of the SERVICES. In this case, DAXIUM's liability can only be incurred by the CUSTOMER if it is shown that DAXIUM has committed a serious breach. The upper limit of liability stipulated above will also be applied in this case.

ARTICLE 10. INTELLECTUAL PROPERTY

DAXIUM guarantees the CUSTOMER that it is the author of the DAXIUM SOLUTION and that it can consequently freely grant to the CUSTOMER the user right under the conditions set out herein.

The CUSTOMER acknowledges that the DAXIUM SOLUTION and the related content are owned by DAXIUM, its licensors or partners.

The user authorisation granted by DAXIUM does not result in any transfer of intellectual property to the CUSTOMER.

Consequently, the CUSTOMER is prohibited from any actions that can directly or indirectly infringe the copyright attached to the DAXIUM SOLUTION. To this end, the CUSTOMER will take all necessary measures to protect the intellectual property rights on the said properties of DAXIUM. It will maintain in a good condition all the property and/or copyright notices stated on the elements comprising the DAXIUM SOLUTION.

The CUSTOMER undertakes to take, with regard to any USER, the necessary measures to ensure the secrecy, confidentiality and compliance with the property rights attached to DAXIUM properties and notably to the DAXIUM SOLUTION.

Furthermore, the CUSTOMER is prohibited from:

  • making any copy or reproduction in whole or in part of the DAXIUM SOLUTION by any means and in any form;
  • any translation, adaptation, arrangement or other modification of the DAXIUM SOLUTION; with the use of these elements in accordance with their purpose not requiring any translation, adaptation, arrangement or modification;
  • any work on the programs comprising the DAXIUM SOLUTION whatever the nature, including for the purpose of correcting errors likely to affect the DAXIUM SOLUTION insofar as the right to correct the said errors is reserved for the exclusive benefit of DAXIUM;
  • any reproduction of the DAXIUM SOLUTION code or translation of the form of this code with a view to obtaining the information required for the interoperability of these intellectual creations with other software programs created independently;
  • any provision of the DAXIUM SOLUTION in a direct or indirect way for the benefit of a third party, in return for payment or free of charge, particularly by loaning, granting, assigning, shared use, etc.

ARTICLE 11. PERSONAL DATA

All the information collected during the creation of the ACCOUNT is necessary for processing the CUSTOMER's requests relating to these GENERAL TERMS AND CONDITIONS OF USE.

Concerning these data and under application of French data protection law no. 78-17 of 6 January 1978, the CUSTOMER has a right to oppose (article 38 of the law) if it cites a legitimate reason such as stipulated by the law, a right to access (article 39 of the law) and rectify (article 40 of the law) the data concerning it collected and processed for the purpose of opening its ACCOUNT.

To this end, it is also specified that DAXIUM has submitted a declaration to the CNIL (French data protection authority) under no.1544667 v 0 on 15 November 2011.

Moreover, concerning the personal data processed by the CUSTOMER during use of the DAXIUM SOLUTION, it is specified that the CUSTOMER must carry out any declaration and/or administrative steps (in particular any declaration to the CNIL), required for the collection and registration of personal data that it enters via access to the DAXIUM SOLUTION. To this end, the CUSTOMER undertakes to fulfil all the legal and regulatory requirements related to the use of the DAXIUM AIR SOFTWARE PACKAGE that come under its exclusive competence; which the CUSTOMER expressly acknowledges.

Concerning this latest processing of data, it is recalled that DAXIUM is a sub-contractor pursuant to article 35 of the law of 6 January 1978.

Therefore, it is expressly agreed between the parties that DAXIUM will:

  • Not process any data on the CUSTOMER's databases if it is not instructed by the latter and this, always under the CUSTOMER's full and exclusive liability;
  • Use all means in its possession to protect the security and confidentiality of the personal data entrusted to it.

ARTICLE 12. DURATION

The CONTRACT is signed for the durations fixed under the SPECIAL TERMS AND CONDITIONS.

ARTICLE 13.   SUSPENSION – TERMINATION

13.1.    Suspension and termination

DAXIUM reserves the right to suspend the CONTRACT as of right, without compensation to the CUSTOMER, and without prior formal notice, in the following cases:

  • If it is urgently required to cease the disloyal actions of the CUSTOMER noted by DAXIUM;
  • When the CUSTOMER's actions endanger the facilities, technology, equipment or properties of DAXIUM, in any way whatsoever;
  • When the CUSTOMER has not executed its obligation to pay the invoices issued by DAXIUM despite a reminder sent to the latter.

The suspension decision is notified by DAXIUM four (4) hours before it takes place by any means.

The lifting of the suspension will take place within eight (8) working hours following the receipt by DAXIUM of a registered letter with acknowledgment of receipt justifying that the cause of the suspension has been removed.

Moreover, in the event of a serious breach, by a PARTY, of at least one of its obligations herein, this CONTRACT can be terminated by the other PARTY. It is expressly agreed that this termination will take place as of right, fifteen (15) days after sending formal notice to carry it out, has gone unheeded. The formal notice, which must without fail state the grievances and obligations for which the non-compliance is alleged, will be notified by registered letter with acknowledgment of receipt.

13.2.    Consequences of the termination

In the event of unilateral termination of the CONTRACT by the CUSTOMER, when the SERVICES, overall, have been concluded for a fixed term, the CUSTOMER will pay as compensation to DAXIUM a termination indemnity of an amount equal to the amounts remaining due up to the end of the CONTRACT. This indemnity is payable within thirty (30) days following notification by registered letter with acknowledgment of receipt of the unilateral termination.

Moreover, it is recalled that the termination of the CONTRACT immediately includes the cessation of the user rights granted to the CUSTOMER herein.

On a prior quotation, DAXIUM can send a copy of the CUSTOMER's data in its possession, in the format of its choice. However, it is specified that if the CUSTOMER fails to have shown its intention to obtain this restitution within sixty (60) days following the termination, DAXIUM will have the right to destroy these data, files and documents.

ARTICLE 14.    COMMERCIAL REFERENCES

It is expressly agreed between the PARTIES that DAXIUM can use the CUSTOMER's references, name, trademarks and logos as a commercial reference or for any public circulation (particularly press and internet).

ARTICLE 15.    GENERAL PROVISIONS

This CONTRACT in no case confers on DAXIUM or on its team the status of employee, proxy, agent or representative of the USER. Furthermore, the PARTIES declare that this CONTRACT can in no case be considered as a deed forming a company or a legal entity whatsoever, and that any form of affectio societatis is formally excluded from their relations.

No indication, no document can create obligations not included in these General Terms and Conditions, if they have not been the subject of a new agreement between the PARTIES.

Any failure to exercise or a delay in exercising a right or a prerogative by a PARTY cannot be considered as the waiver of this right or this prerogative in favour of the other PARTY. In the same way, the exercising of a sole right or the partial exercising of a right or a prerogative does not exclude in advance the exercising of any other right or prerogative resulting from the CONTRACT. No waiver can come into effect if it is not stipulated in a written document by a representative of each of the PARTIES.

In the event of difficulty in interpretation between any of the headings of the clauses, and any of these, the headings will be declared as non-existent.

In the event that one of the provisions of the CONTRACT is deemed to be null and void or inapplicable by a court decision that has the force of res judicata and has acquired the authority of a final decision, the PARTIES agree to try to limit, as far as possible, the scope of this nullity or of this inapplicability of a type that the other contractual provisions remain in force and that the economic balance of the CONTRACT remains intact.

Unless otherwise stipulated in an article of this CONTRACT, the periods are counted by calendar day. Any period runs from the first attempted dispatch to the addressee, with the postmark of the post office or receipt of the express letter service providing proof.

Any notification under application of this CONTRACT must be made in writing and either (i) handed over against receipt, or sent (ii) by registered letter with acknowledgment of receipt, or by an express letter service against receipt. By express agreement, the signing of the CONTRACT also results in the acceptance by the PARTIES as a method of additional proof the electronic communications (e-mails, etc.) exchanged between the PARTIES. The printing of these electronic communications is considered as an original written document providing proof between the PARTIES. It is also specified that unless proved otherwise, the data registered by DAXIUM via its website: http://www.daxium-air.com form proof of the transactions carried out between Daxium and the CUSTOMER.

ARTICLE 16. APPLICABLE LAW – JURISDICTION

This CONTRACT is subject to French law, both for formal rules and substantive rules. In the event that the CONTRACT is translated into a foreign language, only the CONTRACT in the French language is legally valid.

FAILING AMICABLE AGREEMENT WITHIN A PERIOD OF THREE (3) moNTHS FROM THE SUBMISSION BY ONE OF THE PARTIES, THE DISPUTE CAN BE REFERRED TO THE COURTS OF THE JURISDICTION OF THE PARIS COURT OF APPEAL TO WHICH JURISDICTION IS EXPRESSLY ATTRIBUTED, NOTWITHSTANDING MULTIPLE DEFENDANTS OR INTRODUCTION OF THIRD PARTIES, INCLUDING FOR EMERGENCY, PROTECTIVE, SUMMARY OR EX PARTE PROCEEDINGS.