1.1 WILDCARD has designed and developed a software application with standard and customizable options (the “Software”) and online access, which allows its clients to set up and running their CI/CD pipelines and deploy their apps on Wildcard’s platform.
1.2 The CLIENT wishes to be able to use the Software online and to benefit from the services offered by WILDCARD under the following terms.
1.3 In accordance with the obligation to negotiate in good faith (Art. 1104 [new] Civil Code), the CLIENT declares that, prior using the Software:
i. the CLIENT has performed an accurate written analysis of its needs;,
ii. WILDCARD has provided the CLIENT, in particular in the business and technical proposal,, the details of the explicit essential features of the service proposed by WILDCARD (Art. 1133 [new] Civil Code) enabling, in particular, the CLIENT to assess the adequacy of the Service for its needs;
iii. the CLIENT has received from WILDCARD all the information that is crucial for its consent, which have a direct and necessary relation with the content and the essential features of the Service or the capacities of WILDCARD (Art1112-1 [new] Civil Code).
1.6 The parties declare that the pre-Collaboration negotiations were freely carried out (Art. 1112 [new] Civil Code) and that the provisions of the Collaboration were freely negotiated (Art. 1110 [new] Civil Code).
The parties have therefore agreed to the following terms.
This means you know how these terms work and you have understood what Wildcard can bring to you as an online service.
Refers to the User chosen by the CLIENT to centralize the communication between the CLIENT and WILDCARD and to manage the operational aspects of implementation of the PaaS Service by the CLIENT
Refers to any PaaS Service malfunctions specifically related to a problem affecting the Software. A “Blocking” bug is one that completely prevents the use of the Software by the CLIENT. A “Major” bug is one that substantially degrades or restricts the performance and/or one or more major features of the Software.
Refers to the Software on the Platform. The Software can only be accessed remotely, by connecting Users to the Platform. The Software includes the back office, which provides access to the Administrator to the configuration functions of the PaaS Service.
Refers to the Software's corrective maintenance service and assistance/user support service. The cost of this provision is included in the PaaS Royalty. The obligations of WILDCARD under this provision are specifically defined in the section “Maintenance / Assistance / Support.”
Refers to the first time the CLIENT starts using the Software until the last time he is using it, or until the Termination.
Refers to all the hardware and software of the hosting data center on which the Software is installed and from which the PaaS Service is provided to the CLIENT.
2.7 PaaS Royalty
Refers to the amount due by the CLIENT to WILDCARD in exchange (Art. 1107 [new] Civil Code) for the right to use the PaaS Service, except for additional services (training, etc.). The deadline for payment of PaaS Royalty’s invoices is 30 days.
2.8 PaaS Service
Refers to the right of the CLIENT (i) to access the Platform to use the Software, (ii) to benefit from the Software’s hosting services and CLIENT’s Data backup services on the Platform, (iii) to benefit from the maintenance provisions described in the Section “Maintenance / Assistance / Support”. Services included in the definition of PaaS Service form an indivisible whole for WILDCARD.
A product is a logical part of the service. They are subject to specific conditions described in this document.
2.10 Customer contact informations
Customer contact information is made of the firstname, name, email, phone and address of the customer. Customer contact information allows to contact him. If the customer is a member of an organisation, his role is also part of the information.
2.11 Customer order and buying information
This informations are the purchase history, including named offer, date and pricing of the Wildcard services and product purchase.
This lists the general vocabulary used in these terms
3.2 The list of services comprising the PaaS Service, the availability rate of the PaaS Service together explicitly and exhaustively describe the essential features of the PaaS Service rendered by WILDCARD (Art. 1133 [new] Civil Code), excluding any implied features that the CLIENT may expect and which WILDCARD cannot legitimately be aware of, and (ii) together ensure that the PaaS Service rendered by WILDCARD is of a quality that complies with the legitimate expectations of the CLIENT and WILDCARD, taking into account the nature of the services that constitute, together and indivisibly, the PaaS Service rendered by WILDCARD and of the purposes and the amount of consideration the CLIENT agrees to pay to WILDCARD to use the PaaS Service (Art. 1166 [new] Civil Code).
3.3 At the request of the CLIENT, WILDCARD can perform additional services (advice, support, configuration, training, etc.), other than those explicitly included in the PaaS Service. Any additional services to be performed by WILDCARD must be the subject to a quotation from WILDCARD and a written and express acceptance from the CLIENT before being carried out by WILDCARD. These services are invoiced separately, in addition to the PaaS Royalty.
The service is for your use only, as a single customer or a company; and you're not going to give away your credentials to a third party. This also says that any additional services outside of our online documentation and public pricing provided on demand may be subject to additional fees.
4. Strict Limits For Use Of The Software And PaaS Service
1. only by remote access on the Platform chosen by WILDCARD, in compliance with the rules of identification and assignment of rights of the Users chosen by the CLIENT via the back office of the Software;
2. only for the processing of the CLIENT's professional Data by the Users under the terms strictly defined in this Article.
4.3 The login credentials of the CLIENT's Users to access the Software are personal and confidential. The CLIENT agrees to take all necessary measures to keep the Users login IDs secret and not disclose them in any form whatsoever. The CLIENT is solely responsible for the use of the IDs which it alone manages through the back office of the Software. In general, the CLIENT assumes responsibility for the physical and logical security of the individual access terminals to the Software. In the event that the CLIENT becomes aware that an unauthorized person has gained access to the Software, the CLIENT agrees to inform WILDCARD immediately. In the event of loss, theft or usurpation of the Users login IDs, the CLIENT will use only the back office procedure of the Software, allowing him to recover his identifiers or create new ones.
4.4 By using the PaaS Service, the CLIENT must comply with, and refrain from violating, any right of any other person, entity, contractual duty and laws including laws forbidding distribution of child pornography, forgery, identity theft, interference with electronic communications, invasion of privacy, unlawful sending of commercial/marketing messages, collection of excessive user data from children, securities violations, wire fraud, money laundering, terrorist activities, false advertising, propagating or profiting from frauds and unfaire scheme.
4.5 The CLIENT agrees not to :
- Take action that might generate unreasonable or disproportionately (as determined by us) large load on our and on our third party providers’ infrastructure
- Abusive use of network bandwidth
- Interfere or attempt to interfere with the proper working of the PaaS service
- Run any form of “spam” on the PaaS Service
- Use the PaaS Service for any high risk activities including nuclear facilities, air traffic control, life customer systems or any other use where the failure of service could lead to death, personal injury or environmental damage (contact firstname.lastname@example.org for appropriate answers)
Our service is accessible through a GitHub account. Also, using our service implies that you fully comply with the law and use the service in a ethical way.The service is for your use only, as a single customer or a company; and you're not going to give away your credentials to a third party. This also says that any additional services outside of our online documentation and public pricing provided on demand may be subject to additional fees.
5. Availability Of PaaS Service
5.1 WILDCARD guarantees, within the context of a performance obligation, the PaaS Service availability rate of ninety-nine point nine (99,9) % per year. Compliance by WILDCARD with the availability rate is as a feature of the service of WILDCARD in accordance with the legitimate expectations of the parties (Art. 1166 [new] Civil Code) in consideration of the nature, uses and amount of the consideration CLIENT agrees to pay to WILDCARD to use the PaaS Service.
5.2 The PaaS Service availability rate is calculated “Platform start”. By express agreement, the availability rate of the PaaS Service does not take into account (i) any interruptions in the operation of the Internet for which WILDCARD can in no way be responsible, or (ii) any scheduled maintenance operations of the Software or the Platform for which the CLIENT is informed by WILDCARD with at least ten (10) days notice.
5.3 The duration of the PaaS Service's unavailability due to the correction of the Blocking or Major Bugs in the Software or of the Platform according to the terms set forth in the “Maintenance/Assistance/Support” section is taken into account in the calculation of the rate of availability of the PaaS Service.
5.4 WILDCARD reminds the CLIENT (i) that the provision of a connection between the Platform and the CLIENT's computer system is not included in the services provided by WILDCARD in accordance with the PaaS Service and (ii) that it is up to the CLIENT to have a connection to a communication network in order to receive and transmit data from the Platform.
5.5 WILDCARD REMINDS THE CLIENT THAT THE INTERNET, WHICH ENABLES WILDCARD TO PROVIDE THE PAAS SERVICE, IS AN OPEN AND INFORMAL NETWORK, CONSISTING OF THE INTERNATIONAL INTERCONNECTION OF INDEPENDENT COMPUTER NETWORKS USING THE TCP/IP PROTOCOL, WITHOUT ANY OBLIGATION TO SUPPLY OR CAPACITY TO SUPPLY BETWEEN OPERATORS OF THESE NETWORKS. CONSEQUENTLY, WILDCARD CANNOT GUARANTEE (i) ANY AVAILABILITY OF THE SERVICE WHICH TAKES ACCOUNT OF THE FUNCTIONING OF THE INTERNET, (ii) OR THAT THE USE OF THE PAAS SERVICE WILL BE UNINTERRUPTED.
The service is guaranteed to be available 99.9% of the year, on the condition that there is no Internet failure or any other global and/or catastrophical event which would be way out of our hands, (Heavy rain, giant meteor hitting earth, etc. You got the idea).
6. Obligation To Collaborate
6.2 The CLIENT acknowledges having been informed by WILDCARD that the implementation and the correct use of the PaaS Service is likely to depend on the CLIENT's ability to train its Users in advance in the use of the PaaS Service and to adapt some of its internal organizational and/or operational processes.
We truly hope that you've signed-up to Wildcard with a spirit of cooperation with us. We also assume that you know what you're doing when you are using Wildcard, and have sufficient technical abilities to run our developer-oriented service.
7. Financial Terms
7.1 General provisions
The amount and terms of payment are as described in our pricing page to which applicable taxes associated with the Software applies .In general terms, WILDCARD's invoices are payable, in advance, within thirty (30) days maximum from the date of invoice.
7.2 Late payment and suspension of execution
7.2.1 Compliance by the CLIENT with the deadlines for payment of the PaaS Royalty constitutes an explicit essential feature of the CLIENT's services expected by WILDCARD (Art. 1133 [new] Civil Code). Any late payment by the CLIENT of more than thirty (30) days after the agreed deadline and after reminder by email from WILDCARD to the CLIENT is deemed to constitute a sufficiently serious default on the part of the CLIENT (Art. 1219 [new] Civil Code) to entitle WILDCARD to immediately suspend the execution of the PaaS Service, with simultaneous notification of the CLIENT by WILDCARD, without further notice or formality of any kind.
7.2.2 In accordance with Article L.441-6 of the Commercial Code, in the event of non-payment of all or part of the PaaS Royalty (or any other amount owed by the CLIENT) within the deadlines, (i) any unpaid amount will automatically generate daily interest until the date of full payment of principal, interest, charges and related expenses, at a rate equal to FIVE (5) times the legal interest rate, without a reminder being necessary and without prejudice to the damages that WILDCARD reserves the right to pursue legally; (ii) in accordance with Article L.441-6 of the Commercial Code, a lump sum indemnity for collection costs, the amount of which is set in Article D.441-5 of the Commercial Code, will be automatically due for each invoice concerned. Pursuant to Article L.441-6 of the Commercial Code, the recovery costs, documented on the invoice, of amounts owed by the CLIENT (costs of proceedings, expenses, disbursements and attorney and bailiff fees) are deemed to constitute a related expense of the claim of WILDCARD and are entirely the responsibility of the CLIENT until the CLIENT’s claim shall be repaid.
7.3 Unpredictable economic circumstances
Pursuant to Article 1195 [new] Civil Code, WILDCARD declares to not accept (i) the risk of an upward fluctuation in the cost of hosting and storing the CLIENT Software and Data invoiced to it by a Platform that operates these benefits on an outsourcing basis with WILDCARD nor (ii) the risk of upwards fluctuation in the cost of the services related to the encryption of CLIENT Data or the CLIENT's connection to WILDCARD's platform. Consequently, any increase of more than fifteen (15)% of any of these specific services announced by WILDCARD to the CLIENT shall be deemed to constitute an unpredictable economic circumstance rendering the provision of the Service for WILDCARD excessively expensive.
7.4 Imperfect performance of services and reduction of price
7.4.1 In the event of imperfect performance of the services under the responsibility of WILDCARD (Art. 1223 [new] Civil Code) (i) that not sanctioned by penalties and (ii) for which the CLIENT has begun to pay, the CLIENT may, after formal notice from WILDCARD, request a proportional reduction of the price of the PaaS Royalty. In this case, the CLIENT and WILDCARD agree to negotiate in good faith a new price which, to be applicable, must be concluded within thirty (30) days of the CLIENT's notification. Failing agreement within this period, the Collaboration shall be terminated by notice at the initiative of either party.
7.4.2 If the CLIENT has not paid for the services which have been imperfectly executed (even for services actually invoiced but for which payment was not actually received by WILDCARD), upon receipt of the notice by the CLIENT and by express waiver of Article 1223 para. 2 [new] Civil Code, WILDCARD shall immediately inform the CLIENT of its decision to suspend the performance of the Service, said failure to pay being deemed to constitute a sufficiently serious breach by the CLIENT (Art. 1219 [new] Civil Code).
Our invoices are due 30 days in advance, penalty may be applied if the payment is more than 30 days late.
8. Liability And Insurance
We are not liable for indirect or unforeseeable damages that could be caused by failure to perform our service. As reasonable people, we have an insurance covering our civil and professional liability.
Any use of Wildcard services is subject to the opening of an account. Creation of the account is free. The customer signs up with his Github accout and his Wildcard account is automatically created and activated.
We need you to sign up to use our service. We're pretty sure that you've already done that before (we had to write it down, these are legal terms, you know…).
10.1 Method of suspension, cancellation or termination
The CLIENT has the right to terminate their account after sending a notice to the following address: email@example.com
10.2 Termination for sufficiently serious breach or non-compliance with a specific essential feature
The Collaboration shall terminate immediately and automatically if a party fails to remedy either (i) a sufficiently serious breach (Art. 1224 [new] Civil Code) of any of its obligations, or (ii) an explicit essential feature of the service (Art. 1133 [new] Civil Code) within thirty (30) days of notification by the other party of the obligation to terminate said breach.
10.3 Suspension of services
You will receive notice of the suspension which will take place immediately.
10.4 Reversibility and restitution of CLIENT’s Data
At the latest within thirty (30) days of the effective date of termination of the Collaboration, whatever the cause, WILDCARD undertakes to return to the CLIENT all the CLIENT's Data which is processed by the PaaS Service, without retaining of any sort of copy and to not exercise any right of retention of such Data for any reason whatsoever. The Data is returned free of charge to the CLIENT in a standard market format (.xls, csv, etc.) which does not require the use of the Software to be re-used. No service other than the complete return to the CLIENT of its Data will be provided by WILDCARD as a form of reversibility, WILDCARD not being bound to ensure any continuity of the service rendered by the PaaS Service, this absence of continuity of service constituting (i) crucial information for the consent of WILDCARD (Art. 1112-1 [new] Civil Code) and (ii) an essential feature of the service (Art. 1133 [new] Civil Code) rendered by WILDCARD.
11. Warranties Related To Software
11.2 During the use of the Software, WILDCARD warrants the CLIENT against any legal action or proceedings on the ground that the Software may infringe the intellectual property rights of a third party. WILDCARD takes responsibility, at its own expense and choice, for the defense to be carried out as a result of the action taken against the CLIENT by a third party alleging an infringement of his rights, the owner of the intellectual property rights on each additional module having made a similar commitment with regard to WILDCARD. WILDCARD shall pay the full amount of damages to which the CLIENT shall be sentenced by a court decision having the force of res judicata in the main proceedings and becoming the final decision of the court. WILDCARD warrants to the CLIENT the peaceful enjoyment of the use of the Software and of any additional modules, provided that the CLIENT informs it without delay of any threat of action or procedure against peaceful enjoyment, allowing WILDCARD to provide the defense, and collaborates with WILDCARD in this defense at the expense of WILDCARD. WILDCARD will have full control over civil defense, including appeal, negotiation and the right to reach a settlement within the meaning of Articles 2044 et seq, of the Civil Code. The CLIENT shall, at his own expense, provide its criminal defense, so as to reverse the presumption of bad faith imposed by the case law.
11.3 In the event of a civil conviction of WILDCARD by a court decision having the force of res judicata in the main proceedings and having become the final decision of the court or in the event of a transaction concluded by WILDCARD, WILDCARD may, at its option and at its own expense, either (i) obtain for the CLIENT the right to continue to use the Software (and/or any additional module) so that it no longer infringes on the rights of any third party, or (ii) if the right to continue using the Software (and/or any additional module) cannot be obtained or if the Software (and/or an add-on module) cannot be replaced or modified for a reasonable cost so that it no longer infringes on the rights of a third party, announce the end of the Collaboration and return to the CLIENT the total amount of the PaaS Royalties paid by the CLIENT to WILDCARD from the date of the claim of the third party (period after the last service provision not having received its consideration - Art. 1229 [new] Civil Code), notwithstanding the right of the CLIENT to seek legal compensation for his total damages.
We hold all Wildcard's intellectual property, and no third party intellectual property were used on the software.
12. Maintenance / Assistance / Support
12.1 Assistance / support in the use of the Software
WILDCARD provides assistance (support) relating to the use of the PaaS Service in French and English, by messengers like Crisp and Slack for the benefit of the Users. The cost of this benefit is included in the PaaS Royalty.
12.2 Maintenance : correction of Software Bugs
12.2.1 WILDCARD provides the CLIENT, by remote maintenance, electronic mail, etc. the information necessary to enable it to attempt to resolve any Major or Blocking Bug as soon as it is reported (defined below). Once the Major or Blocker Bug has been identified and reproduced by WILDCARD, WILDCARD agrees to install as soon as possible on the Platform a correction to the instructions of the Software which are the cause of the Major or Blocking Bug. To accomplish this, WILDCARD may install a temporary workaround, an upgrade or a new version of the Software.
12.2.2 WILDCARD agrees to take into account the CLIENT's requests to intervene for Maintenance within the shortest possible time. Upon reception by WILDCARD of a written request to intervene by the CLIENT (the “Reporting” of a Bug), WILDCARD agrees to act as quickly as possible to reproduce the Major Bug or Blocking reported. From the time of reproduction of the Major or Blocker Bug by WILDCARD, the PaaS Service is deemed unavailable and the duration of this unavailability is taken into account in the calculation of the annual availability of the PaaS Service indicated in the section “Availability of the Service” and sanctioned by penalties calculated in the section “Penalty for failure to respect the availability rate of the PaaS Service.”
12.3 Updates and new versions
12.4 Software Maintenance Limits
To benefit from the Maintenance, the CLIENT is required to:
- (i) promptly forward to WILDCARD a Report of any possible Bug and transmit without delay to WILDCARD any information necessary or useful in locating and reproducing the Bug;
- (ii) make itself fully available to WILDCARD and allow WILDCARD to contact any user who might provide it with any useful information about the Bug reported in order to reproduce it.
The cost of the support is included in the service billing, and we will always do our best to perform updates and maintenance of our software in a way that has the least impact on our customers.
13. General Terms
13.1.1 The CLIENT’s Data processed by the PaaS Service and, in general and not limited to, the parties' business plan and their present and future activities, their personnel, their know-how, whether this information is obtained directly or indirectly from the other party, its employees, subcontractors, agents or service WILDCARDs, shall be considered confidential. Confidential information is provided “as is” without warranty, express or implied, as to its accuracy or completeness. The following does not constitute confidential information:
2. information validly held by one party before its use/disclosure by the other party;
3. information validly obtained from a third party authorized to transfer or disclose such information without breach of an obligation of confidentiality or a secret confidentiality.
13.1.3 For the protection of the other Party's confidential information, each Party undertakes to take the minimum protective measures it would take to protect its own confidential information and undertakes to ensure (i) that its employees, service WILDCARDs and subcontractors with access to confidential information have signed, prior to any disclosure for their benefit, a confidentiality agreement, the obligations of which are equivalent to those set out in this section and (ii) to justify by writing immediately on first request of the other party.
13.1.4 Each party recognizes that the one who uses or discloses without authorization any confidential information obtained by the other party during negotiations undertakes its responsibility under the conditions of general law (Art. 1112-2 [new] Civil Code).
13.2.1 WILDCARD undertakes to strictly comply with the French regulation prohibiting corruption of public or private agents, influence peddling, money laundering, likely to be subject in particular to a prohibition for bidding for a public tender, including the OCDE Convention of December 17, 1997 relating to combating corruption of foreign public agents into international commercial transactions.
WILDCARD undertakes to implement into its company all necessary policies and measures in order to warn and prevent corruption.
13.2.2 WILDCARD undertakes that, based on its knowledge, its directors, officers, employees or any person acting on behalf of the Collaboration, have not offered, promised, given, authorized, solicited or accepted any undue pecuniary or other advantage of any kind from any natural person in any way, including a public official at the national level, a political party official or candidate to political office, and any person having a legislative, administrative or judiciary function on behalf of every country, public agency or company or public official of an international public organization, with the intention of corrupting them and/or to persuade them to act in an inappropriate manner regarding their functions or activities in order to obtain or retain for the CLIENT a commercial case or ensure it any advantage as part of its commercial cases.
13.2.3 WILDCARD undertakes to ensure that no person acting in behalf of WILDCARD and providing a service provision for and on behalf of the CLIENT was excluded or will not be excluded in the future, suspended or even prohibited to take part of a public contract by a governmental agency and/or bid on national or international projects.
13.2.4 WILDCARD undertakes to maintain, within an appropriate delay after the date of termination of the Collaboration, all receipts enabling to prove the compliance with the dispositions of the present clause.
13.2.5 WILDCARD undertakes to notify to the CLIENT, as soon as possible from every disclosure of facts likely to constitute a corruption action, every violation of the present clause.
13.2.6 If the CLIENT notifies to WILDCARD that there are reasonable reasons to believe that WILDCARD would have breached its obligation to combat the corruption:
1. the CLIENT will be entitled to suspend immediately the performance of the Collaboration in order to investigate on the relevant breach;
2. WILDCARD will take all reasonable measures in order to prevent the lost or destruction of the proofs regarding to the relevant breach.
13.2.7 In case of proven breach by WILDCARD of its obligation to combat the corruption:
1. the CLIENT could immediately terminate the Collaboration of every damages resulting from the CLIENT of the breach by WILDCARD of its obligation to combat the corruption;
2. WILDCARD will compensate the CLIENT.
13.3 Force majeure
13.3.1 Neither party shall be liable for failure to perform any of its obligations as a result of the occurrence of an event of force majeure, understood as an event (i) beyond the control of the party (ii) which could not reasonably be foreseen at the conclusion of the Collaboration, and (iii) the effects of which cannot be avoided by appropriate measures (Art. 1218 [new] Civil Code).
13.3.2 During the period of force majeure, if the impediment is temporary (less than thirty (30) days) the event of force majeure suspends the fulfillment of its obligations by the party invoking it unless the resulting delay justifies the termination of the Collaboration (except for the obligation to pay amounts due on the date of the occurrence of the force majeure event). If the impediment is final or more than thirty (30) days, the Collaboration shall be terminated and the parties discharged from their obligations, subject to the notification of such termination by either of the parties. In all cases, the party affected by force majeure must take the appropriate measures (Art. 1218 [new] Civil Code) in order to avoid, eliminate or reduce the causes of the delay and resume performance of its obligations as soon as the event invoked has disappeared.
13.4 Use of CLIENT name for reference
After 10 days of Collaboration the CLIENT expressly authorizes WILDCARD to use the CLIENT's name/logo/brands, strictly in accordance with the CLIENT's graphic charter, solely as commercial reference (WILDCARD's list of client references and public announcements on WILDCARD's professional social networks), to the exclusion of any other use which is subject to prior authorization by the CLIENT. Referencing the CLIENT on the public list of WILDCARD clients is for WILDCARD an explicit essential feature (Art. 1133 [new] Civil Code) of the expected benefit of the CLIENT.
13.5 Non-solicitation of personnel
Unless otherwise agreed by the parties to the contrary, each party waives the right to hire any of the employees of the other party who has participated in the performance of the Collaboration, even if the initial solicitation is made by the employee concerned. This obligation is valid throughout the start of the Collaboration, and for twelve (12) months after the termination or the effective date of termination, whatever the cause and/or the grounds. Should one of the parties fail to comply with this obligation, it agrees to compensate the other party (including selection and recruitment expenses, training costs, resulting damage to its personal reputation or commitments already taken into account) by immediately paying a lump sum compensation equal to twelve (12) times the last monthly gross salary that the employee concerned has received from the party in default.
13.6 Social obligations and concealed work
WILDCARD undertakes to comply with Articles L.8222-1 and D.8222-5 of the Labor Code (mandatory declarations to the social welfare bodies or the tax authorities) and attests on its honor to the execution of its services by employees who are legally employed under Articles L.1221-10, L.3243-2 and R.3243-1 of the Labor Code.
Each party shall elect domicile at its registered office. Any notice (notice, reporting, approval or consent) required or necessary pursuant to the Collaboration shall be in writing and shall be deemed validly given if (i) delivered personally to the addressee by signature of two (2) original copies (one (1) of which is for the recipient) or (ii) by registered letter with return receipt to the other party, or (iii) by express courier service against the signature of a receipt of delivery. Time limits are counted per calendar day, one week containing six (6) business days and five (5) working days. Any time counted from receipt of a notice shall run from the first attempt to deliver it to the recipient, as evidenced by the postmark, as well as the acknowledgement of the express mail service and the handwritten date on the hand-delivered letter. If a measure is to be taken or a notification must be made on a particular date or deadline and that date is not a business day, the measure in question may be postponed to the next business day.
14. Protection Of Client Personal Data
14.1 Outsourcing of hosting’s provisions
|Name of the hosting provider
|Address of the registered office
||8 rue de la Ville l’Evêque, 75008 Paris
|Payment conditions by WILDCARD of the hosting provider’s invoices
||Thirty (30) days in advance
14.2 The CLIENT is solely responsible for processing the Personal Data
The CLIENT guarantees to be the sole owner or legitimate holder of the Personal Data which are processed by the PaaS Service offered as a standard to every client of WILDCARD. All rights of persons concerned (Articles 15 to 22: right of access, rectification, oblivion, opposition, etc.) must be exercised by such persons directly and exclusively with the CLIENT, WILDCARD agreeing to comply with any lawful written instruction from the CLIENT in this regard.
14.3 CLIENT’s guarantees regarding Personal Data
14.3.1 In accordance with European and French legislation on the protection of personal data, in particular, Regulation 2016/679 of 27 April 2016 (together “GDPR”), prior to any use of the Software or PaaS Service by the CLIENT and for the Initial Term and those of any termination of the Collaboration, the CLIENT guarantees to WILDCARD:
1. that it has collected and processed Personal Data in a lawful, fair and transparent manner for specific, explicit and legitimate purposes of which WILDCARD is in no way aware and that the CLIENT declares to have duly informed the persons concerned. Consequently, any obligation of prior declaration relating to the processing of its Personal Data with a supervisory authority is its sole responsibility, and the CLIENT guarantees to WILDCARD to have carried this out;
2. that it is solely responsible for the processing of the Personal Data that it collects, enters or processes in connection with its use of the PaaS Service;
3. that it alone determines the purposes and means for the processing of its Personal Data, including through the use of the PaaS Service. Consequently, it is the CLIENT's responsibility, prior to the use of the PaaS Service, to verify that the processing of Personal Data requested from WILDCARD is in accordance with the purpose and means of the processing of Personal Data of which WILDCARD is sub-contractor.
14.3.2 The guarantees given by the CLIENT to WILDCARD under this article constitute an explicit essential feature (Art. 1133 [new] Civil Code) of the service expected from the CLIENT by WILDCARD and thus WILDCARD cannot be held liable in this regard, on any grounds whatsoever. In the opposite case, the CLIENT agrees to absolve and guarantee WILDCARD, without restriction or reservation, of any consequence, in particular financial, imputed to WILDCARD.
14.4 WILDCARD is a sub-contractor for the processing of the CLIENT’s Personal Data
14.4.2 WILDCARD reminds the CLIENT that, pursuant to Art. 28.3.h) para. 2 of GDPR, any instructions of the CLIENT by WILDCARD which could lead to non-compliance with the GDPR, requires WILDCARD to inform the CLIENT immediately. WILDCARD reserves the right to refuse instructions from the CLIENT which appear to it to be unlawful within the meaning of Article 82.2 of GDPR. In this case, a documented written refusal by WILDCARD in no way allows the CLIENT to terminate the Collaboration, unless the CLIENT accepts its liability vis à vis WILDCARD in case of termination of the Collaboration deemed to be “without lawful cause” and to lead the application of Article 11.3.3.
14.5 Conformity commitments of WILDCARD
14.5.1 WILDCARD undertakes to the CLIENT to introduce sufficient guarantees regarding the implementation of technical and organizational appropriate measures so that the processing of CLIENT’s Personal Data complies with GDPR’s requirements and warrants the protection of the rights of persons concerned whose Personal Data are processed by the CLIENT through the PaaS Service(art. 28.1 GDPR).
14.5.2 WILDCARD agrees to technically process the CLIENT’s Personal Data solely in order to render the PaaS Service, to the exclusion of any other use for the benefit of WILDCARD or third parties. In accordance with the GDPR, the CLIENT's Personal Data is stored and processed by WILDCARD on servers located exclusively within the territory of the European Union and are not subject to any transfer outside the EU, without prior written authorization by the CLIENT, except pursuant to a decision of the European Union (Argentina, Canada, Israel, New Zealand, Switzerland, Uruguay and “Privacy Shield”) which allow a processing service WILDCARD to export personal data without specific authorization.
14.6 Register of operations of Personal Data’s processing
In accordance with Art. 30.1 of GDPR and no later than May 25, 2018, WILDCARD agrees to maintain an up-to-date list of the CLIENT's Personal Data processing including:
a) the name and contact details of the CLIENT and of the Data Protection Officer if one has been appointed by the CLIENT;
b) the purposes of the processing;
c) a description of the categories of persons concerned and the categories of personal data;
d) the categories of recipients to whom Personal Data have been or will be sent, including recipients outside the EU;
e) where applicable, transfers of Personal Data to a country outside the EU, including its respective identification;
f) to the extent possible, the time limits for the deletion of the different categories of Personal Data;
g) to the extent possible, a general description of the technical and organizational security measures incorporating the provisions of the Collaboration.
14.7 Notification of security breaches
14.7.1 Pursuant to Art. 33 of GDPR and no later than May 25, 2018, WILDCARD undertakes to inform the CLIENT and without delay of any breach of the security of personal Data transmitted or processed through the PaaS Service where such infringement involves unauthorized access, disclosure, alteration, loss or destruction of this data, either accidentally or unlawfully. It is then up to the CLIENT alone to inform (i) the supervisory authority on which it depends, and (ii) the persons concerned when this breach of the security of the personal data “is likely to generate a high risk to rights and freedoms.”
14.7.2 At first request of the CLIENT, WILDCARD will provide in writing all parts referred to Article 33 GDPR, namely:
a) the nature of [personal] data violation including, if possible, groups and estimated number of persons concerned by the violation and groups and estimated number of data recordings of [personal] data concerned;
b) the name and contact details of DPO or of another contact point to whom supplementary information can be obtained;
c) the consequences likely to violate the [personal] data;
d) the measures taken or the ones that WILDCARD suggests to take to resolve the [personal] data violation, including, where applicable, the measures to reduce the eventual negative consequences.
14.7.3 If, in the event that, it is not possible for WILDCARD to provide the CLIENT every information at the same time, WILDCARD undertakes to communicate this information to the CLIENT on a staggered basis without any further delay.
14.7.4 WILDCARD undertakes to document by writing any violation of [personal] data, by indicating the facts regarding the violation of [personal] data, its effects and measures taken by WILDCARD to resolve them. The documentation which is established will be available to the CLIENT and/or the CNIL or any other supervisory authority.
14.7.5 In the event that the CLIENT is classified as a supplier “to the public of electronic communications services on electronic communications networks open to the public” within the meaning of Article 34 bis of Law 78-17 of January 6, 1978, WILDCARD agrees to inform CLIENT immediately of any “breach of security resulting in accidental or unlawful destruction, loss, alteration, disclosure or unauthorized access” to the CLIENT's personal Data; it is the responsibility of the CLIENT to inform the CNIL and, where applicable, the persons concerned. In the event of a security breach, WILDCARD agrees to (i) promptly take all appropriate technical corrective measures for the Software and/or PaaS Service to put an end to the identified security breach, in particular to render the Data incomprehensible to any person not authorized to have access, and apply them to the Data concerned by this security breach and (ii) to document it in writing as soon as possible for the CLIENT.
14.8 Commitment of WILDCARD in case of sub-sub-contracting
14.8.1 WILDCARD’s obligations, especially Platform’s services, may be performed in sub-contracting by a WILDCARD’s contractor. In accordance with Article 28 GDPR and no later than May 25, 2018, generally, WILDCARD undertakes not to subcontract its own services to a sub-sub-contractor who would not comply with the GDPR and who will favour WILDCARDs having supported a code of practice (Article 40 GDPR) or being subject to a certification (Article 42 GDPR). If the WILDCARD’s sub-contractor does not perform its obligations regarding the Personal Data protection, WILDCARD will remain fully liable to the CLIENT of any violation to GDPR’s obligations by its sub-contractor.
14.8.2 In addition to define the object and the duration of the processing, the nature and the purpose of the processing, the type of personal data and the groups of persons concerned (Article 28.3 al.1 GDPR), each contract of sub-contracting concluded by WILDCARD will include at least a commitment of the sub-contractor:
a) not to process personal data except by documented instructions of WILDCARD and/or CLIENT, including concerning data transfers to a country outside the EU (unless it is bound to proceed in this way pursuant to French law for WILDCARD; in that event, WILDCARD undertakes to inform the CLIENT of this legal obligation before the processing, unless French law prohibits such an information for important reasons of general interest);
b) to make sure that persons authorized to process the personal data undertake to comply with the confidentiality or to submit to a legal obligation of confidentiality;
c) to take every security measures requested by Article 32 GDPR;
d) not to sub-sub-contract in its turn all or part of services to perform for WILDCARD and for the CLIENT to another WILDCARD without all commitments referred to this article are complied with the sub-contractor of the sub-contractor;
e) to help the CLIENT, with appropriate technical and organizational measures, to the extent possible, to perform its obligation to pursue the needs whose the persons concerned decide to sue in order to exercise their rights;
f) to help the CLIENT to guarantee the respect of obligations (i) of securization (Article 32 GDPR), (ii) of notification to the CNIL of eventual security breaches (Article 33 GDPR), (iii) of information to every person concerned by the security breach and by any eventual data leak (Article 34 GDPR), (iv) of prior realization of an impact study (Article 35 GDPR) and (v) of mandatory consultation to the CNIL in case of realization of an impact study, concerning that the nature of the processing and available information to the sub-sub-contractor;
g) according to the CLIENT, to cancel every data or to return them after its service, and to destroy every existing copy, unless French law requires to the sub-contractor the preservation of the CLIENT’s data;
h) to make every necessary information available to the CLIENT to prove the compliance of obligations provided in this article and to ensure audits, including inspections, by the CLIENT (or an auditor) and to contribute to the audits.
14.9 Identification of the hosting Platform
14.9.2 Due to the large number of clients using its accessible standard PaaS Service via the Platform, it is not possible for WILDCARD to submit a change of Platform to the prior approval of the CLIENT. WILDCARD will be free to change Platform, subject to prior notification to the CLIENT, only if:
ii. the new Platform is operated by WILDCARD without interruption of the PaaS Service rendered to the CLIENT;
iii. the Platform complies with all the obligations of WILDCARD under the GDPR;
iv. WILDCARD does not modify the amount of the PaaS Royalty
14.10 CLIENT’s Data encryption