General terms and conditions for the sale of Dmbook Pro
GENERAL TERMS AND CONDITIONS FOR THE SALE OF DMBOOK PRO CONCERNING COMMISSIONING BEFORE 01/12/2020
1 - Introduction
1.1 - LoungeUp, a French Société par Actions Simplifiée, (hereinafter"LoungeUp","We", "Us" or"Our") provides the service (hereinafter"Service" or"Dmbook Pro") and the additional services described on www.dmbook.pro (the"Site") in accordance with these Terms of Use (hereinafter the"Terms")
1.2 - These Terms constitute a legal agreement between LoungeUp and you (hereinafter"You" or"the User"). The Service is intended for business use only and is not intended for consumer use. In order to use the Service you must be at least 18 years old and have the authority and power to enter into a binding agreement with us.
1.3 - By using our Service, you agree to abide by these Terms. If you do not agree with these Terms, you may not use the Service.
2 - Registration and subscription to the service
2.1 - Subscription to the Service requires registration and creation of an account on the Site (hereinafter "Account"). Registration is free.
2.2 - As part of the registration process, we ask you to enter certain information such as your name and contact details. By accepting these Terms, you agree to provide true, accurate, current and complete information about yourself and your business and to maintain and promptly update your information to keep it true, accurate, current and complete. We only use your information to the extent necessary to properly perform the Service and additional services and in accordance with our Privacy Policy.
2.3 - LoungeUp reserves all rights and sole discretion to suspend or cancel any account registered with incorrect or incomplete information or for any other reason.
2.4 - The subscription grants you a limited right to use the Service in accordance with these Terms. In accordance with clause 7.2 below, all Intellectual Property Rights in the Service and in the templates and layouts of the Accounts that We provide and any modifications thereto shall belong to LoungeUp or to a third party as the case may be.
2.5 - Trial. From time to time we may offer trials of the Service for a specified period without payment (a "Trial"). LoungeUp reserves the right to determine your eligibility for a Trial, and to withdraw or modify a Trial at any time without notice and without liability. For some Trials, we may ask you to provide your bank details to start the Trial. At the end of such a Trial, We may automatically start billing you for the Service on the first day after the Trial ends, on a monthly recurring basis. By providing your payment information in connection with the Trial, you agree to this billing. If you do not agree to this billing, you must terminate your subscription before the end of the Trial.
3 - Additional services
3.1 - Upon request, We may also provide other services to Our Users such as (but not limited to) training and coaching ("Additional Services") as further defined on the Website. Additional Services are not included in the subscription and must be purchased by a separate order made via the Account or by email.
3.2 - Only Users with a valid subscription can order the Additional Services.
3.3 - These Terms only become applicable to the Additional Services once your order has been accepted. The Additional Services may also be subject to additional terms and conditions which you must accept in connection with your order.
4 - Prices, payment policies and cancellations
4.1 - Prices
4.1.1 - All prices for the Service and Additional Services are determined in accordance with Our price list (the "Price List").
4.1.2 - The fee is paid in advance for the billing period you have chosen. You can change the billing period through your Account settings. The new billing period takes effect after the end of your current billing period.
4.2 - Payment policies
4.2.1 - The subscription to the Service is invoiced and sent to you electronically and must be paid by the due date of the invoice.
4.2.2 - In the event that subscriptions are not paid by the due date, We may deactivate access to your Account. In this case, you are not entitled to any compensation or indemnity for the period of deactivation of access to your Account.
4.2.3 - If the subscription amount is not paid within 14 days of the reminder that We have sent to You, LoungeUp will have the right to cancel Your subscription and permanently disable access to Your Account.
5 - Duration and termination of the service
5.1 - The subscription to the Service is automatically renewed at the end of each billing period, unless You cancel the subscription at least 14 days before the end of the current billing period.
5.2 - LoungeUp has the right to cancel your subscription to the Service at any time and for any reason, including in the event of a breach of these Terms by you, unless the breach is curable and is remedied within the time period set at LoungeUp's sole discretion.
5.3 - Any termination of the subscription to the Service will take effect on the day following the end of your current billing period, unless We terminate your subscription due to your breach of these Terms, in which case termination will take effect immediately upon discovery of your breach or, if We have set a time limit for the breach to be remedied and it is not remedied within that time limit, on the day following the date of expiry of that time limit.
5.4 - If your subscription is cancelled, you are not entitled to any refund of the subscription fee you have already paid to us or any other compensation unless we cancel your subscription for a reason other than your breach of these terms.
5.5 - If your subscription to the service is terminated, you are entitled, upon written request, to request and receive a copy of the data and other contents of your account on our server. The data will be provided to you in a commonly used electronic form. LoungeUp is not responsible for storing your data for more than 14 days after the cancellation of your subscription, after which all your data will be deleted from our servers and destroyed.
6 - Changes to the Service and Additional Services
LoungeUp has the right to make changes to the content, scope or price of the Service, Additional Services and these Terms. If you do not agree to the changes to the Service or these Terms, you may cancel your subscription. By continuing to use the Service after the change(s), you accept the change.
7 - Your responsibilities and User data
7.1 - You must use the Service and Additional Services in accordance with these Terms and French law and in a generally acceptable manner. By accepting these Terms, you represent and warrant that you are complying with these Terms and that your account is being used for proper and lawful purposes only.
7.2 -"Intellectual property rights" include, but are not limited to, patents, trade marks, service marks, design rights and database rights (whether or not they can be registered), applications for any of the above, copyrights (including rights in source code, object code, procedure manuals and related documentation), know-how, trade or business names, domain names and other similar rights or obligations, whether or not they may be registered in any country (including, without limitation, France). All intellectual property rights and title to the data and other content in your account belong to you or a third party licensor. You are responsible for the data and other content in your account and must ensure that the content and data does not infringe the rights of third parties or violate any French law in force at the time. LoungeUp assumes no responsibility for the content of the web pages hosted on its servers nor for any infringement of third party rights.
7.3 - The distribution or publication of any indecent, immoral, illegal or misleading data or any other content that is harmful or contrary to good morals is prohibited on the web pages hosted by Our servers. Any use of the Service or distribution of such data or content that may cause damage or harm to LoungeUp, the Service or other Users is prohibited and will be considered a violation of these Terms. We may, in our sole discretion, determine whether your use of the Service constitutes a violation of these Terms.
7.4 - We have the right, without prior notice to the User, to remove any User data or other content that we consider to be in breach of these Terms and the account in which such data or content is distributed. Alternatively, we may notify you of the misuse and request that you delete such data or content.
7.5 - You must ensure that your username and password for your account are diligently maintained and not disclosed to any third party. Any use of the Service by your username and password is your responsibility. LoungeUp assumes no responsibility for any damage caused to you by the misuse of your account and password.
7.6 - In the event that your password is disclosed to a third party or you suspect misuse of your username or password, you must notify Us immediately. Your liability for the use of the Service by your username and password will expire only after We have received your notification of the misuse.
7.7 - You shall defend, indemnify and hold LoungeUp harmless from and against any and all claims, actions, proceedings, losses, damages, expenses and costs (including, without limitation, reasonable legal fees and costs) arising out of or in connection with the use of the Service.
8 - Maintenance and suspension of service
8.1 - In order to carry out necessary installation, modification or maintenance work on the Service or the servers, LoungeUp has the right to suspend the provision of the Service for a reasonable period. We will inform the Users of planned maintenance interruptions as soon as possible on the Site.
8.2 - LoungeUp has the right to deny Users access to the Service without hearing the User beforehand, if there is a suspicion that the User is uploading or using the Service in such a way as to compromise the delivery of the Service to other Users. We will inform you of the reasons for such denial without delay.
9 - Third party applications
9.1 - We may from time to time make available to Users or on the Website advertisements of certain applications, websites, services provided by third parties or links or references to sites, blogs, chats or other virtual places or services provided or hosted by third parties ("Third Party Applications") and your use of such Third Party Applications is subject to their terms of use.
9.2 - LoungeUp does not warrant, approve, endorse or assume responsibility for any Third Party Applications, Third Party Application content or any other product or service advertised or offered by any third party or any hyperlinked website, or featured in any banner or other advertisement on the Website or through the Service. You understand and agree that LoungeUp is not responsible for any transactions between you and third party providers of third party applications or products or services advertised on the Website or through the Service. No advice or information, whether oral or written, obtained by you from the Service or the Website shall create any warranty on behalf of LoungeUp in this regard.
10 - Disclaimer of warranty and limitation of liability
10.1 - In addition to what is stated in other provisions of these Terms, LoungeUp's liability for damages is limited as stated in this section 10.
10.2 - LoungeUp provides the Service and the Additional Services with diligence and professionalism. Notwithstanding the foregoing, the Service and Additional Services are provided "as is" without warranty of any kind, either express or implied, including, without limitation, any warranty of merchantability and fitness for a particular purpose. LoungeUp assumes no responsibility for the accuracy or application of the Service or Additional Services, nor for any errors or omissions therein.
10.3 - LoungeUp does not guarantee that the Service will function uninterrupted or error free at all times. LoungeUp assumes no responsibility for any interruptions or problems in the Service due to e.g. (but not limited to) internet connection failure or any other temporary technical complication or any act of God or other delays or damages that are caused by third parties, events or circumstances that are beyond LoungeUp's control and that LoungeUp could not foresee and that could not reasonably be prevented or overcome (force majeure)
10.4 - In no event will LoungeUp be liable for any direct, indirect, special, incidental or consequential damages arising out of the Service or Additional Services or the inability to use the Service or Additional Services, even if LoungeUp has been advised of the likelihood of such damages occurring.
10.5 - LoungeUp will not be liable for any loss, damage or costs, arising from, but not limited to, loss of profits or revenue, loss of use of data and/or the Service, loss of data or equipment, the cost of recovering any software, media, data or equipment, the cost of substitute service, media, data or equipment or third party claims, or other similar costs related to the Service or the Additional Services
10.6 - In no case will LoungeUp be liable to You for an amount greater than the total of the amounts You have paid to LoungeUp for the Service in the 3 months prior to Our default or the amount paid for the Additional Service You have ordered.
11 - Data protection
11.1 - The following definitions apply in this section 11 (unless the context otherwise requires):
"Data Protection Legislation" means the Data Protection Acts 1988 to 2018 (as they may be amended from time to time), and from 25 May 2018, the General Data Protection Regulation (EU) 2016/679 ("GDPR") ;
"Security breach" means the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to the user's personal data (defined below in section 11.2); and
The terms"controller","data subject", "personal data", "processing", "processor" and"supervisory authority" have the meaning given to them in the GDPR.
11.2 - With respect to all personal data received by LoungeUp from or on behalf of the User in the course of performing the Service and the Additional Services (if any) under these Terms ("User Personal Data"), both LoungeUp and the User acknowledge that the User shall be the controller and LoungeUp shall be a subcontractor.
11.3 - The User, as controller or main processor (as the case may be), is solely responsible for establishing the legal basis for the processing of the User's Personal Data by LoungeUp under these Terms and will ensure that it has all the appropriate consents and notices necessary in place to enable the lawful transfer of the User's Personal Data to LoungeUp for the duration and purposes of these Terms and the provision of the Service or Additional Services (as the case may be). The User, as the data controller, is furthermore solely responsible for the accuracy and quality of the User's Personal Data.
11.4 - To the extent that LoungeUp processes Personal Data of users in accordance with these Terms, LoungeUp shall:
11.4.1 process the User's Personal Data in accordance with these Terms, this Section 11 and the User's instructions (unless LoungeUp is required to process the User's Personal Data by the applicable law of the European Union ("EU") or an EU Member State, in which case LoungeUp shall notify the User of this legal requirement before such transfer or access takes place or is permitted, unless such law prohibits such notification for important public interest reasons);
11.4.2 ensure that all personnel authorised to process the User's Personal Data are party to the confidentiality obligations regarding the User's Personal Data;
11.4.3 Cooperate as reasonably requested by the User (at its own expense):
- (i) to enable the User to comply with any exercise of rights by a data subject under data protection legislation in relation to the User's personal data; and
- (ii) where the user carries out a data protection impact assessment;
11.4.4 inform the User if LoungeUp receives a request from a data subject to access the Personal Data of that person. LoungeUp shall not respond directly to that data subject unless instructed to do so by the User;
11.4.5 implement and maintain appropriate technical and organisational measures to ensure the security of the user's personal data taking into account: (i) the state of the art; (ii) the costs of implementation; (iii) the nature, scope, context and purposes of the processing; and (iv) the risk to data subjects inherent in the processing activities;
11.4.6 inform the User without undue delay after becoming aware of any breach of security; and
11.4.7 co-operate with the Data Protection Commission (or, to the extent reasonably requested by the User, any other supervisory authority) in the performance of its duties, if any.
11.5 - The User hereby consents to the transfer of the User's Personal Data processed under this Section 11 outside the EU PROVIDED that in making any international transfer of the User's Personal Data, LoungeUp ensures that:
11.5.1 it has provided appropriate safeguards in relation to the transfer, which may include Privacy Shield certification (in the case of US transferees) or EU standard contractual clauses. The User hereby appoints LoungeUp as its agent to enter into any EU standard contractual clauses in connection with the provision of the Service or Additional Services (as the case may be); and
11.5.2 data subjects continue to have enforceable rights and effective legal remedies after the transfer.
11.6 - The User authorizes LoungeUp to use third parties ("subcontractors") to provide the Service or the Additional Services (as the case may be) provided:
11.6.1 LoungeUp shall inform the User in advance of any proposed use of, and any replacement or addition to, a Sub-processor and the User shall have the right to object on reasonable grounds to the use or change of any Sub-processor within 14 days of the User's notification of the change. In the event that the User raises such an objection, LoungeUp may terminate all or part of the Service or the Additional Service (as the case may be) with 14 days notice;
11.6.2 in engaging any subcontractor LoungeUp agrees to adequate data protection provisions which are in all material respects similar to those set out in this section 11; and
11.6.3 LoungeUp remains at all times responsible for the acts and omissions of any subcontractor as if such acts and omissions were those of LoungeUp.
11.6.4 For the purposes of this section 11.6, the User consents to the use of the sub-processors listed below:
SubcontractorFunctionMailgun Technologies, Inc. (Mailgun)Email delivery infrastructureMessage Systems, Inc. (SparkPost)Email delivery infrastructureZoho Corporation B.V.Billing, subscription management and customer supportChargebee Inc (Chargebee)Billing and subscription managementStripe, Inc. (Stripe)Payment provider (credit card)GoCardless Ltd (GoCardless)Payment service provider (SEPA direct debit)
11.7 - LoungeUp will make available all information reasonably requested by the User to ensure that LoungeUp complies with its data protection obligations under this Section 11. The User (and its third party representatives) will be allowed to check LoungeUp during normal working hours, PROVIDED THAT :
11.7.1 The User must provide at least 14 days' written notice of its intention to carry out an audit;
11.7.2 The User shall ensure (and shall cause each of its representatives to ensure) that disruption to LoungeUp's business during such an audit or inspection is minimised;
11.7.3 all expenses incurred by LoungeUp must be promptly paid by the User;
11.7.4 LoungeUp may request that any third party representative conducting an audit on behalf of the User provide written confidentiality undertakings to the reasonable satisfaction of LoungeUp and LoungeUp shall be entitled to refuse access to its premises or records until it has received such undertakings;
11.7.5 LoungeUp shall not contribute to or permit an inspection or audit more than once per calendar year, except for any additional audit or inspection that is required or requested in connection with data protection laws or a supervisory authority;
11.7.6 LoungeUp may object in writing to an auditor or representative appointed by the User if the auditor or representative is, in LoungeUp's reasonable opinion, not sufficiently qualified or independent, a competitor of LoungeUp, or otherwise manifestly unsuitable (in the event of such an objection, the User must appoint another auditor or conduct the audit itself); and
11.7.7 nothing in this Section 11 gives the User the right to access or inspect records that contain information relating to any other client, user or guest of LoungeUp and LoungeUp has the right to restrict or prevent access to any part of its premises that it considers, in its sole discretion, to compromise the security of any information or data relating to such other clients, users or guests.
11.8 - LoungeUp will inform the User if it has knowledge that any instruction received in relation to section 11.7 violates the provisions of any applicable EU or EU member state data protection law. Notwithstanding the foregoing, LoungeUp shall have no obligation to verify the legality of any instruction received from the User.
11.9 - Following termination of the Service or Additional Services (as the case may be), LoungeUp shall, upon written request and at the expense of the User, delete or return the User's Personal Data and copies thereof to the User, except to the extent LoungeUp is required by applicable law to retain the User's Personal Data. LoungeUp is not responsible for storing your data for more than 30 days after cancellation of your subscription, after which all your data will be deleted from our servers and destroyed.
12 - Duration of the application of the Conditions
These Terms come into effect when you subscribe/register for the service and create the Account and accept these Terms. They continue to apply until your subscription is terminated, except for the disclaimer of warranty and limitation of liability provision in section 10 hereof.
13 - Other provisions
13.1 - LoungeUp has the right to use the User's Account for reference purposes in its own marketing, unless the User expressly refuses this in writing.
13.2 - No delay by LoungeUp in enforcing the provisions of these Terms shall prejudice or restrict its rights and no waiver of rights shall operate as a waiver of any subsequent breach.
13.3 - If any provision of these Terms or the application of any of these provisions is found to be invalid, void or unenforceable and/or is found by a court of competent jurisdiction to be contrary to law, the remaining provisions of these Terms shall remain in full force and effect to the fullest extent permitted by applicable law. In addition, you acknowledge that you have not relied on any representation, undertaking or promise given by us or implied from anything said or written in prior negotiations and which does not form part of the subscription or these Terms.
13.4 - These Conditions are made, executed and delivered in France and any dispute arising out of or in connection with these Conditions shall be governed by and construed in accordance with French law.
13.5 - Any dispute relating to these Conditions, their execution, their violation, their existence or their validity shall be resolved before the Commercial Court of Paris, and the language of the proceedings shall be French.
For the commissioning of the Dmbook solution after 01/12/2020, the general sales conditions of LoungeUp apply.