ARTICLE 1. DEFINITIONS
In the rest of the present document and in other contractual documents associated with it, the terms whose
first letter is capitalised shall have the following meaning:
.1. Administrator: individual person and User, acting for and on behalf of the Client, in whom the Client confides certain administrative functions and the management of other Users’ rights through the Client Administration Service.
.2. General Conditions: The General Conditions that are the subject of Chapter I below.
.3. Specific Conditions: The Specific Conditions that are the subject of Chapters II and following and complement or modify the General Conditions with regard to the Services to which they relate.
.4. Contract: the present Service Contract consisting of the General Conditions, the Specific Conditions and any Annexes thereto, and the signed Estimate, formalising the full range of the Parties’ commitments with regard to the provision and use of Pitchy services.
.5. Contracts: any Contract or signed Estimate offered to or subscribed to by the Client via the Web Site.
.6. Contractual Documents: The Contract(s) and its/their subsequent documents, such as the present General and/or Specific Conditions.
.7. Evidence File: the full range of files establishing that the On-Line Contract and. where applicable, the Electronic Contractual Documents, are genuine.
.8. Client Space: The Client Space accessible on the Web Site after inputting of the ID details and password
specific to the Client and/or the User.
.9. Force Majeure: an event jointly accepted by law and by the courts as being irresistible, unforeseeable and external, as well as any other event that disrupts the economy of the Contract and prevents it from being fulfilled, outside the control of the Party concerned, specifically and without this being exhaustive, internal or external corporate conflicts, intervention by the civil or military authorities, war or hostilities whether or not declared, acts of terrorism, riots, natural disasters, fire, water damage, epidemic, pandemic, health conditions, malfunction, disruption or interruption of computer or telecommunications networks, default by a supplier or subcontractor that prevents or limits the implementation or supply of the Services or Equipment, and non-availability of the Services and Equipment or their components from Pitchy’s suppliers.
.10. Days: Days within the terms of this document are considered to be working days, unless specified otherwise. The term “working days” refers to all days of the week except Saturdays, Sundays or public holidays defined by current French regulations.
.11. Licence: The Licence conferring access to the Pitchy Services as subscribed to by the Client within the context of the signed estimate.
.12. SEPA mandate: mandate authorising Pitchy or its successors to debit the sums owed to Pitchy under the Contract and in accordance with EU Regulation No. 260/2012 dated 14 March 2012.
.13. SaaS Method: means “Software as a Service”.
.14. Parametrisation: refers to the configuration of the Solution to suit the Client’s needs, relying on the
standard functions, in accordance with the provisions of this Contract.
.15. Services: relates to the full non-licensed services granted to the Client, such as, for example,
graphic or computer developments.
.16. Specimen: refers to all specimen documents, videos, sounds, images, templates and scenarios etc supplied by Pitchy or by a Pitchy service provider.
.17. Parties: Pitchy and the Client.
.18. Tariff schedule: the commercial document describing the Pitchy services and the applicable prices, this may
refer to the estimate or to the www.pitchy.frwebsite.
.19. Pitchy Services or Service(s): the services accessible via the Web Site, as defined in the Specific Conditions, most notably the Pitchy video creation service.
.20. Signatory: individual person who signs the Contract or signs the Contract on behalf of the Client.
.21. Web Site: the web site accessible at the address www.pitchy.fr.
.22. User: Any individual person duly authorised by the Client to use the Services and described as such to Pitchy in accordance with the terms of this document.
ARTICLE 2. AIM
- The aim of the General Conditions, and of the Specific Conditions and all contractual documents referred to therein, where applicable, is to define the terms and conditions :
- which are binding on the Client and the Users wishing to access the Web Site and to use the Services on offer thereon (hereinafter “the Services”); and
- according to which Pitchy will provide the Client and Users with the Services.
All access to and/or use of the Web Site assumes acceptance of and unconditional respect for all the terms of the Contractual Documents.
- The Services consist of an overall offer of services available in SaaS mode from the Web Site and are strictly reserved for professionals for use within the context, and for the requirements, of their professional activity.
- Pitchy shall provide the Client with the Services in accordance with the terms and conditions set out in the Contact.
- Pitchy offers various ranges of Services, which have different prices and within which the maximum number of videos and the associated content and functions vary. Pitchy shall provide the Client with services subscribed to by it at the time of the order.
It is expressly specified that when the Client subscribes to the Services for the requirements of one or more of
its departments and/or business units, the Client’s other departments and/or business units as well as the personnel and assistants working on the said services and/or business units not expressly referred to in the order or the Specific Conditions may not in any circumstances use the Services.
- All Clients using the Services are deemed to have read the Contract and to have accepted its terms expressly and without reservation. Any order from the Client, whether written or spoken, and/or any use of the Services, shall constitute pure and simple acceptance by the Client of the terms of the Contractual Documents.
2.6 The Client shall stand guarantor for respect of the Contractual Document by the Users.
CHAPTER I – GENERAL CONDITIONS
ARTICLE 3. OBLIGATIONS ON THE PARTIES
- Prior conditions
- Pitchy reserves the right not to follow up an application from a Client wishing to take out a licence if it appears that the Client’s application is based on a wish to avoid or circumvent the stipulations of the Contract (especially for using the Web Site and Services for non-professional purposes) or on an attempt at fraud.
- Pitchy reserves the right, in all cases and at all times, prior to the entry of the Contract into force or during its fulfilment period, to make the provision of its Services and/or the access to the Services dependent on a prepayment, the introduction of a consumption ceiling or the creation of a guarantee with it.
- Making the Services available to the Client is dependent on receipt by Pitchy of the following documents for each Service taken out:
- Prior conditions
- The Estimate signed by the Client.
- The Contract signed by the Client.
- A K-bis extract less than 3 months old.
- The list of Users including their first and last names, department and professional e-mail address.
- Only Service Licence applications that are duly completed, dated, signed and accompanied by the elements mentioned in the previous paragraph shall be taken into account by Pitchy. If the file is incomplete, the Client must send the missing supporting documents not later than eight (8) days after the request from Pitchy.
- The Client is advised that the Services may be altered at any time in any way by Pitchy as is standard practice in the SaaS industry, specifically for taking account of changes in the technological or commercial context (except for prices if the Client has already obtained the licence) or the administrative, regulatory or legal context, or for reasons connected with the security of the systems and/or information connected with the said Services.
- Pitchy does not guarantee the compatibility of all browsers and attached software, such as video file readers in particular, in their older versions. Useful information is available from the Pitchy client relations centre.
The Client declares that it has read the full range of technical specifications
necessary for using the Services prior to signature of the present documents.
Pitchy therefore declines all responsibility for cases of malfunction or non-availability of the Services if the equipment and terminals held by the Client and the Users do not satisfy the technical specifications laid down.
- Obligations on Pitchy
Pitchy undertakes to provide the Client with the Services in accordance with these documents.
Pitchy remains entirely in control of its work methods, tools, know-how and implementation procedures, which it must develop in accordance with standard practice and in keeping with the legal environment of the Service.
In this regard, Pitchy shall specifically use the premises and equipment of its choice for hosting its solutions. In addition, Pitchy alone shall assess the human resource levels necessary for providing the Services.
In all cases, any changes that Pitchy may make to the provision of the Services, in terms of techniques, work methods, tools, know-how and/or implementation procedures must not be of a such a nature as to compromise full provision of the Services confided in it by the Client.
Pitchy may, at its discretion, update the Services, which may where applicable not include the full range of existing or new functions; the Client acknowledges and accepts this.
Pitchy shall inform the Client of any difficulties encountered in the provision of the Services immediately on becoming aware of them, by any written means available including e-mails.
Pitchy undertakes to provide the Client with the information and advice that allow it to
take all useful decisions concerning the conditions for providing the Services.
Pitchy is bound by an obligation to advise and warn the client with regard to elements likely to compromise proper fulfilment of the Contract. This obligation to advise may only be exercised if the Client has provided all the information allowing Pitchy to fulfil the said obligation.
Pitchy shall provide the Client with a Client Service available from 10:00-18:30 Monday to Friday, by telephone, on 01 58 20 15 41, or by e-mail at firstname.lastname@example.org
- Obligations on the Client
The Client shall be responsible for proper use of the Services by its employees, representatives or subcontractors and for maintaining the confidentiality of its access codes. In this regard, it must take all steps to ensure that these codes remain confidential, in its own interest. It shall bear all the consequences of unauthorised third-party access to the Services (Pitchy Services consumption price, unauthorised use etc).
The Client therefore has sole responsibility for the use of its account. Any connection or data transmission carried out using the Client’s account shall be deemed to have been made by it and entirely at its own risk. It is also specified that the Client has full and exclusive responsibility for use of the Services by any third party who has accessed by keying in the Client’s access code.
When completing the list of Users, the Client undertakes to communicate only information that is exact, up to date and complete.
The Client also undertakes to inform Pitchy immediately in writing (including e-mail) if any of its Users ceases to be a member of its personnel or of its assistant firms authorised to benefit from the Services, and likewise when and/or if new persons are given that capacity (especially in the event of extension of licence or arrival of these persons in
place of other persons previously nominated as user).
The Client alone shall be responsible for proper function of the Users’ computer and/or telephone
equipment and for their Internet access.
Immediately on signing the present documents, the Client shall appoint a single contact person, competent and authorised by the Client, to represent the Client before Pitchy.
The Client must take account of the fact that Pitchy may not know everything about its organisations and work practices. Any ambiguity or inaccuracy must be reported in writing to Pitchy by the Client, as soon as it becomes aware of it.
The Client undertakes to inform Pitchy of any change likely to alter the conditions for provision
of the Services.
ARTICLE 4. CONTRACTUAL DOCUMENTS
- The Contract expresses the full range of the Parties’ obligations with regard to its subject. It cancels and replaces all previous documents and agreements concluded between the Parties. In the event of contradictions between the contractual documents, the Specific Conditions shall prevail over the General Conditions.
- The Contract shall prevail automatically over all the conditions shown in the documents issued by the
Client, especially in its own General and Specific Conditions of Purchase.
- In the event of inconsistency with a previous version of these General Conditions, only the version in force on the date of signature of the Service Contract shall apply.
- The information and business documents relating to Pitchy’s Services are outside the scope of the contract and have no binding capacity.
- Pitchy reserves the right to modify the Contract provided the Client is notified thereof by any means. In this case, the Client may terminate the Contract within fifteen (15) days from Pitchy’s notification of modifications, provided the Client provides beforehand written proof that the modification in question would cause an inconvenience to nature or the magnitude of which would significantly affect its business activity or make it impossible.
No modification to the Contract made on Pitchy’s initiative may give rise to damages or compensation of any kind in favour of the Client.
- Alteration to the Contract on the Client’s initiative
The Client may freely and at any time alter its Licence or Service Offer by taking out a range of Services at a price higher than that paid on signature of the Contract.
This change shall be reflected in an Amendment to the Contract.
In contrast, any change to a ranges of Services with a price lower than that taken out may only be made when each Contractual renewal date comes around, provided a written request is sent by RLAR to Pitchy’s Client Service, at least two (2) months before the Contract renewal date.
ARTICLE 5. ENTRY INTO FORCE, DURATION, TERMINATION
- The Contract shall enter into force on the date shown on the signed estimate, or failing that, on the date indicated in the Contract, and where applicable, on the date of signature of the Contract.
- The Contract is concluded for an initial period of a duration to be shown in the Specific Conditions or, where applicable, in the order.
At the end of the Initial Period, the Contract shall be renewed tacitly for successive periods of a duration identical to that of the Initial Periods, unless either Party advises the other of its renunciation in a registered letter with advice of receipt, giving two (2) months’ notice before each Contract renewal date.
- The Contract may be terminated automatically by Pitchy at any time, without notice and without the Client being able to claim any compensation, if the Client and/or any one of the Users makes fraudulent use of the Services or Service access codes in any way (most notably by allowing persons not appointed as Users to use the Services), if the Client is subjected to enforced legal recovery during which the receiver does not issue an authorisation for the Client to continue in accordance with applicable law, or if the Client goes into liquidation.
In the situations mentioned in Article 10.5, and when the reason for the suspension does not disappear, the Contract may be terminated automatically by Pitchy from the tenth day following suspension of Pitchy’s services, without the Client being able to claim any form of compensation.
- Without prejudice to the provisions of the present Article 5.1 or of Article 10.5, if the Client fails to fulfil any one of its obligations under the Contract, Pitchy shall be authorised, thirty (30) days after a demand is sent by registered letter with advice of receipt advising its intention to make use of the present clause and that demand has still not borne fruit, or immediately in the event of any irrevocable failure, to terminate the Contract officially, fully or in part, by simply sending a registered letter with advice of receipt, notwithstanding the right to demand compensation for damages suffered.
- If the Contract is terminated, and without prejudice to the damages that Pitchy may claim, the sums owed by the Client under the Contract shall become payable immediately and in full, including the total that would have been due to Pitchy had the contract run to its initially agreed term.
ARTICLE 6. FINANCIAL CONDITIONS
- The Service prices are those applicable in Pitchy when the Contract enters into force.
- These prices may change, in which case Pitchy undertakes to inform the Client beforehand within a minimum of one month, by any means available. If the Service prices are raised, the Client may terminate the Contract by registered letter with advice of receipt, within a period of one (1) month following this information. If the Client does not exercise this termination option, it shall be deemed to have accepted the application of the new provisions from their date of entry into force.
- The sums due from the Client include:
- Implementation costs.
- The licence and the options relating to each Service subscribed to.
- The cost of generating prepaid videos.
- Any annual adjustment costs.
For the purpose of calculating the payment owed by the Client to Pitchy in relation to the Contract, the indications of Pitchy’s estimate shall prevail over any other means of calculation, especially in the event of a disagreement, except in cases where the Client provides proof that the monitoring system has malfunctioned.
All prices mentioned are expressed net of taxes. Taxes shall be payable by the Client and applied in accordance with legislation in force on the date of invoicing.
All costs and expenses relating to equipment and communication and otherwise needed in relation to connection and access to and use of the Solution, and any authorisation required in relation thereto, are and shall remain payable by the Client.
- Conditions of payment
Sums owed by the Client shall be payable as soon as the invoice is received. If the invoice totals or exceeds €100,000, payment in instalments may be agreed with the Client at the time of conclusion of the contract.
- Methods of payment
- Payment by banker’s card
- Methods of payment
- The Client may choose to pay for certain Services on line using a banker’s card.
- The Services available with this method of payment are accessible on the Web Site. The list of acceptable appears on the Client Space at the time of payment.
- By clicking on the “VALIDATE” button when placing the order, the Client agrees to the terms of these General Conditions and to the price shown on the summary page for the order in the Client Space. The order cannot be changed after this point.
- The price shown must be paid in full by banker’s card. The Services may only be delivered after this payment is made.
- If payment is not made for any reason, and especially if the banker’s card used is rejected or the account to which it is linked has insufficient funds or the authorised expenditure level is exceeded, the Services shall be cancelled.
- The minimum amount payable by BC is €15. The maximum amount is €15,000.
- The Client and User shall ensure that they are authorised to use the banker’s card details of which are sent to Pitchy.
- Payment by bank transfer:
- The bank account specified by Pitchy. To this end, when the Contract is signed, Pitchy shall send the Client a statement of bank details showing its BIC and IBAN.
- The Licence and the services payable once yearly shall be invoiced on signature of the Contract.
Any purchase of Services shall be invoiced monthly at the end of the month, with payment being transferred on the 20th of the following month. The Parties have agreed that the invoices shall function as prior notices.
- Pitchy may ask the Client for payment of an advance on consumption. This request may be made at any time with regard to the Client’s credit institution rating or in the event of delay in payment or high levels of unusual patterns of consumption. In the event of refusal, or if the instalment has not yet been paid, Pitchy reserves the right to suspend access to the Services.
- If an invoice falling due is paid late, Pitchy reserves the right to apply, automatically, without prior demand and with instant demand, payment of daily delay interest in the event of partial or total non-payment. This interest will be calculated at an annual rate of three (3) times the official interest rate prevailing in France. The said interest shall be payable from the due date to the date on which the total owed by the Client is paid to Pitchy, inclusive. This interest shall continue to accrue on the totals due notwithstanding termination or expiry of the Service Contract for any reason. In addition, in accordance with Articles L.441-6 and D.441-5 of the Commercial Code, the Client shall owe Pitchy fixed compensation for recovery costs, totalling a minimum of €40 (forty euros).
- Any deterioration in the Client’s solvency levels, or any payment-related incident, may justify the demanding of guarantees and/or cash payments or cheque or banker’s card payments subject to applicable regulations. The Client must present guarantees of solvency at all times, including on signature of the Service Contract, and must where necessary supply a bank guarantee or guarantee deposit.
- In the event of default on payment, Pitchy reserves the right to suspend the Contract automatically without prior demand.
- Any private claim concerning the elements of an invoice must be submitted to Pitchy within thirty (30) days from the date of issue of the invoice in question. A claim will not exempt the Client from payment of the disputed invoice.
- In the event of a claim, Pitchy shall conduct an inquiry. Any amendments following
the inquiry shall be settled as soon as possible.
- In the event of a query over volumes consumed, the Client is informed that a detailed statement of what it has consumed is available on the Client Space.
ARTICLE 7. LIABILITY AND INSURANCE
- As Pitchy does not exert any control, either a priori or a posteriori, over the use of the Services by the Users, it cannot in any circumstances be held liable by the Client as a result of damages caused by any use of the Services. The Client shall protect Pitchy against any claim, action, court procedure or sentence, even if not definitive, in relation to the said damages.
- Pitchy undertakes to make every effort to fulfil its obligations under the Contract, according to current professional and standard practices, and to provide the Services in accordance with the Services documentation available on the Website.
Pitchy shall implement all reasonable means available to it to ensure good-quality access to the Platform but is not bound by any obligation of provision. Pitchy is not able to guarantee continuous availability of the Services provided remotely via the Internet, telecommunications networks or mobile phone network, which the Client acknowledges.
In addition, Pitchy cannot be held liable for any malfunction of the network or servers or for any other event, outside reasonable control, which may prevent or compromise access to the Website. Pitchy undertakes nevertheless to make every effort to obtain reasonable assurance that the Client can access the Website and use it during the times specified herein, that is, 24/24 hours and 7/7 days, including Sundays and public holidays.
Pitchy reserves the right to interrupt, temporarily suspend or modify without prior notice the access to part or all of the Website and the Services, in order to carry out maintenance work or for any other reason, without the interruption conferring the right to any obligation or compensation.
- Unless specified otherwise, Pitchy is not bound by an obligation to provide advice on the adaptation of the Services to suit the Client’s requirements. Any analyses carried out by Pitchy shall be done for information only, purely in the light of information communicated by the Client.
- If Pitchy fails, partly or completely, to fulfil the obligations incumbent on it under the Contract, the Client shall have the option, provided it can prove that Pitchy was a fault, to request reparation for any direct damages that it has suffered and can prove.
- Regardless of the nature, basis and methods of action taken against Pitchy, the compensation due to the Client for direct damages for which it has provided proof may not, except in cases of fraud or serious misconduct by Pitchy, exceed a maximum equal to the sums due, excluding postage, from the Client in application of Article 6 “Financial Conditions” and in relation to the last six (6) months preceding the event(s) that led to the liability being incurred. This total is for all claims combined.
- Pitchy shall not in any circumstances be liable for:
- Damages attributable to partial or total failure by the Client to fulfil its obligations, especially
under the Contract or under any applicable law, regulation or standard;
- Indirect damages, even if Pitchy was aware of the possibility of such damages arising. The Parties expressly agree that loss of image, interruption to operations, additional costs linked to switching to another system in the event of non-availability, loss of saving and any action directed against the Client (with the exception of any action connected with counterfeiting) by a third party, shall constitute indirect damage and therefore not carry any right to reparation.
- Damages that could have been avoided had the Client exercised reasonable diligence to that end.
- Damages linked to loss of the Client’s data, as the Client is obliged to assure and verify the safe-keeping, conservation and restoration of the said data, unless storage of the said data is covered by a Service to which the Client has subscribed.
- Damages linked to data supplied by the Client.
- Damages attributable to third parties, especially service providers playing a direct or indirect part in the provision of the Services.
- Pitchy is not responsible for the content, quality, legality or relevance of the content, files, data and information sent by the Client, or for any loss or destruction of data that may occur during their transfer, especially via telecommunications networks.
- Pitchy shall give the Client’s users an ID code / password for its internal use of the Services ordered. The password shall be personal and confidential. The Client undertakes not to disclose it to third parties in any form or in any circumstances whatsoever. The Client alone shall be responsible for the storage of passwords and ID codes, and for any use made of them.
- The Client alone shall be responsible for the parametrisation, adjustments, options and rules of management applied. Pitchy cannot be held responsible in any circumstances for the choices made by the Client.
- The Client alone shall be responsible for the elements sent by it to Pitchy. The Client guarantees that it
owns and/or holds all the rights to use them within the context of the Services, and shall therefore keep
Pitchy protected against any third-party action.
- In no circumstances may Pitchy be held liable for consequences that give rise to compensation or damages following an event covered by circumstances of Force Majeure.
- In any case, the Client shall inform Pitchy immediately of any action or claim formulated by any of its clients or by any other third party in relation to the use or function of […] and immediately send Pitchy all information and documentation useful for understanding the circumstances and the scope of the litigation that may arise therefrom.
- Pitchy cannot be held liable in the event of use by a third party of the access code communicated to the Client.
- The Client must assert any claim linked to the fulfilment of the present document within one (1) month of provision of the Services covered by the claim, otherwise the Client’s right to claim may be debarred.
- Each Party undertakes to ensure that it keeps an insurance policy in force with an insurance company established in France and known to be solvent, for the financial consequences of its civil, professional, criminal and/or contractual liability incurred in connection with bodily injury and material and non-material damage caused to the other party and to any third party within the context of fulfilling the present Contract.
ARTICLE 8. CONFIDENTIALITY
- Each of the Parties agrees to keep strictly confidential all information communicated to it as such (“Confidential Information”) by the other Party or which comes to its knowledge in the performance of this Agreement.
Each of the Parties is therefore prohibited from disclosing the above-mentioned information, throughout the term of this Agreement, for any reason other than the strict requirements of the performance of this Agreement, except in response to a court or administrative order or unless the information in question has fallen into the public domain.
- Each of the Parties also agrees to enforce the provisions of this Article with all members of its staff and subcontractors concerned, of which it vouches to the other Party.
- The obligation laid down in this Article shall remain in effect for the duration of the performance of this
Agreement and will continue after its expiration for a period of two (2) years.
In addition, upon expiry or termination of the Agreement, Pitchy shall return to the Customer the stored data in its possession and each Party shall either return to the other Party all documents containing Confidential Information, or assure the other Party of their destruction. Under no circumstances can a copy of the documents containing Confidential Information be stored.
ARTICLE 9. PERSONAL DATA
Each of the Parties agrees, each as far as it is concerned, to collect, process, store and protect personal data in compliance with the European and French regulations that are applicable to it in relation to personal data protection and in particular Law n° 78-17 of 6th January 1978 relating to France’s data protection legislation as amended and any new law, decrees adopted for its implementation such as the Digital Republic Law n° 2016-1321 of 7th October 2016 and Regulation (EU) 2016/679 of the European Parliament and the Council of 27th April 2016 called “RGPD”, so that neither Party can be troubled by this issue.
Pitchy’s commitments in respect of the protection of personal data are expressly indicated in the document entitled “Personal data protection policy/Cookie management” available on the Website, which forms part of the Contractual Documents.
The Customer expressly declares that it has obtained the consent of Users when collecting their Personal Information for transmission to PITCHY so that PITCHY can transmit their Personal Information to its partners (including the group of companies to which it belongs) for the purposes of communication and/or marketing particularly by electronic, postal or telephone means.
ARTICLE 10. COMPLIANCE WITH THE REGULATIONS IN FORCE AND THIRD-PARTY RIGHTS
- The Customer agrees not to disclose, whether directly or indirectly, in any manner whatsoever and in any form whatsoever, through the Services, content that is illegal or infringes the rights of third parties and in particular content that:
- is contrary to public policy or to good morals;
- is pornographic, paedophilic; offensive, defamatory, harmful to the honour or reputation of individuals;
- is racist, incites racial hatred or even negationism of crimes against humanity, outrageous, contemptuous;
- constitutes a threat of any kind whatsoever addressed to one or more individuals;
- incites an offence, a crime, and more generally any act punishable by law; constitutes hacking in all its forms;
- infringes or violates an intellectual property right (copyrights, related rights, trademarks, patents, industrial designs);
- and more generally breaches privacy, the protection of personal data or
third party rights.
- The Customer will comply with the laws and regulations applicable to its use of the Services. In this respect and in particular, the Customer will comply with:
- the provisions of applicable European and French regulations concerning personal data protection and in particular Law n° 78-17 of 6th January 1978 relating to France’s data protection legislation as amended and any new law, decrees adopted for its implementation such as the Digital Republic Law n° 2016-1321 of 7th October 2016 and Regulation (EU) 2016/679 of the European Parliament and the Council of 27th April 2016 called “RGPD” and any subsequent text. It declares that its processing operations in connection with the use of the Services has been duly declared to the CNIL. The Customer will respect the rights granted to individuals with regard to the processing of data that directly or indirectly relates to them;
- to the rules applicable to direct marketing. In this respect, when messages are sent for the purposes of direct marketing, the Customer agrees:
- to verify that the persons named on the Recipient lists are not registered in the lists of subscribers who do not wish to be solicited;
- to verify, unless legally exempt, that the Recipients have given their prior and express consent to receive such messages;
- to provide valid contact details so that the Recipient can send a request for such communications to cease, with no additional cost other than those linked to the transmission of such a request.
- The Customer is solely responsible to the owners of the intellectual property rights in question for the payment of any fees due for the intellectual property rights related to the contents of letters, SMS, videos, sounds, images and more generally any content sent by the Customer via the Services, unless these have been provided by Pitchy.
- Failure on the part of the Customer to meet its obligations under this Article gives Pitchy the right to pronounce, as of right and without prior notice, the immediate termination of the Agreement. Pitchy has the right to pronounce the partial termination of the Agreement with regard to the Service(s) affected by the breach leading to the termination. In any case, this termination will take place without the need for legal proceedings or any formality other than sending a simple registered letter with request for Acknowledgement of Receipt. It cannot under any circumstances give rise to any damages for the benefit of the Customer.
- Pitchy reserves the right to cut off access to the Customer without notice in cases where such access would jeopardise the functioning or availability of the computer systems, in particular because:
- of abnormal use of the Service
- of a denial-of-service attack via the Customer’s access, that is, a deliberate action to degrade the performance or access to the service;
- of the use of hacking to access Pitchy’s data or systems.
Pitchy reserves the right to cut off access after disclosure of the Customer and in the absence of prompt corrective measures from the Customer especially in the case of problems related to an infection by a computer virus.
- The Customer warrants Pitchy, as well as any third party or service providers participating directly or indirectly in the performance of the Services, and for this purpose as a stipulation on behalf of third parties, against all consequences, whether direct or indirect, including the financial breach of its commitments under this Article.
- If the Customer is convicted due to its use of the Services, Pitchy may pronounce either the total termination of the Agreement, or its partial termination for the Service used which gave rise to such incrimination.
- Pitchy may suspend the performance of the Agreement or Service concerned:
- for a period not exceeding three (3) months if putting an end to the Customer’s actions is urgent, particularly because of the harm, the risk of harm or the risk of exacerbating harm to the rights of third parties, or of Pitchy;
- in the event of criminal prosecution issued against the Customer due to the use of a Pitchy Service by the Customer and until the pronouncement of the judgement.
- The suspension and/or termination pronounced by Pitchy under this Article will take place as of right, without preliminary notice and without any formality necessary other than sending a registered letter with request for Acknowledgement of Receipt.
Pitchy may, however, and, if no urgency precludes it, formally notify the Customer to stop the breach in question and to pronounce the suspension or the total or partial termination of the Agreement only in the case where the Customer has not put an end to the said breach within the set deadline.
ARTICLE 11. INTELLECTUAL PROPERTY
- Common provisions
Each of the Parties retains the exclusive ownership of all information, technical and/or scientific knowledge, know-how, trade secrets, data, trademarks, databases, applications, software packages, websites, software (including their source codes), files, drawings, templates, forms and/or any other type of information, in any form whatsoever, whether patentable or not and/or patented or not and all intellectual property rights arising therefrom or attached thereto belonging to or duly held by it on the date that the Agreement enters into force and/or during its performance.
- Pitchy’s property rights
Pitchy remains the owner of all intellectual and/or material rights on the Templates, software packages, software, general and specific developments, settings, methods, know-how, development tools, files, databases, data, documents, including, distinctive signs, drawings, templates, materials (hereinafter referred to collectively as “the Elements”, which are its property and which are used or made available to the Customer as part of the services covered by the Agreement.
The Agreement does not entail any transfer of intellectual and/or material property rights over the Elements owned by Pitchy or for which Pitchy has obtained a license or right of use and which are used or made available to the Customer as part of the services covered by the Agreement.
Conversely, the Agreement does not entail any transfer of intellectual and/or material property rights over the Elements owned by Pitchy and which are used or made available to Pitchy as part of the services covered by the Agreement.
It is understood between the Parties that the documents made available to the Customer by Pitchy cannot be reproduced by the Customer, other than for the purpose of transmitting the said documents to Solution Users. These documents remain under the ownership of Pitchy and the Customer is prohibited from distributing the content to anyone other than the Users, without the express written consent of Pitchy.
For the purposes of this Licence, the following terms shall mean:
- Pitchy Software: any proprietary or non-proprietary software of which Pitchy holds all or part of the intellectual property rights and provided by Pitchy as part of this Agreement;
- Licence Agreement: this Licence Agreement;
- Third Party Software: software owned by third parties, participating in the operation of a Pitchy Software and provided or made available to the Customer in SaaS mode by Pitchy and for which Pitchy declares to have acquired the relevant rights.
Pitchy Software is the property of Pitchy and/or its partners. Unless prior written consent has been obtained, no use of Pitchy Software may be made or initiated by the Customer outside of this Licence Agreement.
The intellectual property rights associated with the contents and elements displayed in the Pitchy Software provided under the Agreement or accessible through it are the property of their holder. This content may be protected by copyright or other laws and treaties on intellectual property and may be subject to the conditions of use set forth by the third party providing such content. Except where otherwise provided for in the Special Terms and Conditions, (i) this Licence does not grant you any right to use such content and does not warrant that such content will remain available to you (ii) you are not authorised to use, extract or distribute, for commercial or other purposes, or independently, any photograph, image, illustration, graphic work, audio material, video material or similar content contained in the Software or supplied as part of it, or use the templates or graphic kits out of context or of the intended use of the Software.
Pitchy grants to the Customer, for the duration of the Agreement, a temporary, personal, non-exclusive, non-sublicensable, non-assignable and non-transferable right of use by Users, in France and abroad, of Pitchy Software and Templates made available to it under the Agreement.
This right of use is only granted for the sole and exclusive purpose of allowing the Customer and the Users to use Pitchy Software for the purpose of benefiting from the application services included in the Services ordered as part of and for the strict requirements of their professional activity, to the exclusion of any other purpose.
The Customer may only use Pitchy Software in accordance with its professional needs, for its intended purpose and for documentation (including all Pitchy documents describing said Pitchy Software and attached services and detailing their specifications, purposes and procedures for use).
This right of use includes all rights required by the Customer for:
- the operation and use of Pitchy Software and all application services attached thereto by the Customer;
- use by the Users (i.e. all members of the Customer’s staff duly authorised to use Pitchy Software in accordance with the terms of the Agreement);
- using the Documentation;
The rights granted to the Customer in accordance with these provisions will be extended to any update or new version that replaces and/or supplements all or part of the Pitchy Software, unless the new update or corresponding new version contains specific conditions of use. However, it is specified that Pitchy may, at its discretion, provide Pitchy Software updates and new versions, without this constituting an obligation.
The temporary provision of Pitchy Software under the conditions provided for in this Agreement cannot be deemed as the transfer of any intellectual property right to the Customer, within the meaning of the French Intellectual Property Code.
Subject to the provisions of Article L.122-6-1 of the French Intellectual Property Code and any stipulation contrary to this Agreement, the Customer strictly prohibits, whether directly or indirectly and not limited to, any reproduction, adaptation, alteration, representation, modification, translation, arrangement, dissemination, decompilation, provision to third parties, marketing, transcription, or use for the purposes of the design, production, dissemination or marketing of software that is the equivalent or replacement of any or part of the Pitchy Software without Pitchy’s express written and prior consent.
- Third Party Software
Whatever the provisions of the documents supporting the Third-Party Software, the rights granted to the Customer on the Third-Party Software consist of a simple Licence Agreement.
The said Licence Agreement is restricted solely to the right to use the said software as part of the Services and solely for the duration of the Agreement. The Customer is informed that any other form of use is likely to incur its liability to third-party software publishers and/or their beneficiaries.
In the event of a claim and/or action for infringement brought against Pitchy, its beneficiaries, distributors, agents, licensees and having originated in the use of the Third-Party Software by the Customer, Pitchy will inform the Customer without delay. If the claim or action for infringement originates from the Customer’s failure to perform its contractual obligations under this Agreement and if it has promptly received notification of this claim and obtained the mandate to defend and pursue the claim, it will take responsibility for the defence of Pitchy, in cooperation with the latter, the Customer will defend Pitchy, his beneficiaries, distributors, agents, licensees and bear all costs (including legal fees and costs) to pursue the action, as well as any damages awarded to the third party.
However, the Customer’s liability is expressly excluded if the infringement or the origin of the claim results directly from the elements provided by Pitchy or changes made by the latter to the Third-Party Software.
Pitchy warrants and undertakes to indemnify the Customer against any action for infringement, for unfair competition, complaint, dispute or claim by a third party brought against the Customer in connection with the Solution and in particular with respect to the property rights related to the Solution which are granted by Pitchy under the Agreement.
Accordingly, if Pitchy has been promptly notified of this claim and obtained the mandate to defend and pursue the action, it will take responsibility for the defence of the Customer, in cooperation with it. To this end, Pitchy will pay all the costs of proceedings, the fees of experts, bailiffs, solicitors and barristers, all damages for which the Customer may be sentenced by a court order based on one of the actions or claims referred to in the preceding paragraph and, more generally, all damages caused to the customer as a result of the infringement action.
- Customer Rights
The Customer is and remains the sole owner or duly authorised owner of all content, data, files and information of any nature whatsoever that it transmits to Pitchy, either directly or via any of the Websites under this Agreement.
However, the Customer grants to Pitchy and any third party, chosen by Pitchy and that Pitchy would replace for the performance of its obligations under the Agreement, a temporary and non-exclusive right to use such content, files, data and information solely for the needs strictly necessary for the performance of the Services.
To this end, Pitchy acknowledges that the communication of elements by the Customer does not in any way constitute a transfer of ownership of said elements for any reason whatsoever and that the elements transmitted can only be used for the requirements and performance of the Agreement, with the prior written consent of the Customer.
In addition, the archives and documents published by Pitchy as part of the Services by means of the data transmitted by the Customer shall be the exclusive property of the Customer.
Pitchy must request a written agreement from the Customer to communicate certain accomplishments in its references and as an example in its media).
The Customer, who is solely responsible for the quality, lawfulness and relevance of the contents, files, data and information transmitted by it and its Users to Pitchy in any way whatsoever as part of the Agreement, guarantees that it owns all necessary rights, particularly intellectual property rights, allowing it to hold, use and transmit to Pitchy the said content, files, data and information for the purpose, in particular, of supplying the Services by the latter or any third party that it would replace in accordance with the terms of the Agreement.
It is therefore the Customer’s responsibility to ensure that the files and documents transmitted to Pitchy do not contain information likely to infringe the rights of a third party, to violate the rules of public order or that are contrary to good morals.
Accordingly, the Customer agrees to defend Pitchy and to assume liability for and/or indemnify Pitchy for any damages that may result from any action or claim by a third party relating to the possession and/or use by Pitchy of any content, files, data and information provided to it by the Customer, in any form and in any manner whatsoever, under the Agreement.
ARTICLE 12. AGREEMENT OF EVIDENCE AND ARCHIVING
The Services include the use and exchange of numerous amounts of data in electronic format, with no hard copy. Each Party accepts to not contest the content, reliability or the probative value of a document and the information contained therein based solely on the grounds that the document is established by electronic means and not a hard copy.
Pursuant to article 1316-1 of the French Civil Code and the agreement expressed between Parties, the electronic means, files, data, messages and computer records saved in the information systems of each Party will be admitted as evidence of communications and exchanges between Parties, to the extent that the issuing Party can be identified and established and preserved in conditions ensuring their security and safeguarding.
Pitchy archives information concerning the provision of Services for a total duration of no more than three (3) years.
ARTICLE 13. CLIENT ADMINISTRATION SERVICE
- The Client Administration service is an interface, available upon request, allowing the Administrator, designated by the Client, to administer and manager User rights.
- The Client can designate one or multiple Administrators and assign them different rights. The Administrators shall, in turn, designate which Users have special rights.
- The authorisation to access the Services, certain of the Services’ functions, information, documents which according the Client’s own administration policy, is given under their sole and unique responsibility excluding Pitchy from any and all responsibility.
- The Client, the User and the Administrator use the Administration Space under the sole responsibility of the Client, this is true for Third Parties as well as designated Users, from which Pitchy is excluded of any and all responsibility.
The Client, the User and the Administrator will furthermore commit themselves in any case to establish and ensure the User List is up to date, particularly concerning the immediate removal of any and all persons who cease to benefit from this status.
Any breach will result in the immediate cancellation in of its own right of this option and/or of the Contract, without prejudice to all other legal remedies.
- Financial conditions
This option is annually billed to the fee indicated in the Fees Leaflet and/or on the website.
In the event where the option attached to the Service is terminated before its period of validity, it is agreed upon by the Parties that the early termination will not result in any refund to the Client.
- Length and termination
- This option is active from the validation of the Client application by Pitchy.
- Unless otherwise agreed, the option is activated for a duration of twelve (12) months, renewable on a yearly basis, by tacit agreement, and can be challenged at any point, and for mere suitability by one or the other Parties, without any formality other than a two (2) week notice addressed by registered letter with acknowledgement of receipt. The Client, however, will not be able to terminate the option for an initial period of twelve (12) months following activation.
- The option will be terminated in of its own right at the end of the Contract.
- Length and termination
ARTICLE 14. NON-SOLLICITATION CLAUSE
The Client is forbidden to hire or to give work to, either directly or by a third party, any of Pitchy’s employees or collaborators, present or future, whatever their specialisation, even if the initial request is made by the Pitchy employee or collaborator. Any and all hidden or complementary pay is equally forbidden. This behavioural commitment is valid for the duration of the Contract for a minimum of twenty-four months after the termination of the Contract has finalised.
In such as case as the Client not respecting the present article, they will compensate Pitchy (specifically the expenditure on recruitment and selection process, training costs, for damages done to their personal reputation or any commitments already undertaken on its behalf) by immediately giving a lump sum equalling twelve times the last gross monthly salary or the last monthly earnings excluding tax or of the collaborator in question.
ARTICLE 15. GENERAL CLAUSES
The Service Contract is entered into by Pitchy and is of personal nature in relation to the Client. It cannot be transferred either in part or as a whole, free of charge or for a fee, for any reason, without Pitchy’s express prior written agreement. It is understood, in the case of transferring the Contract, that the Client will remain attached to the transferee for a period of one (1) year effective after the transferral.
Pitchy can assign, transfer, offer a third party, in whatever form it may be, the rights and obligations resulting from the Service Contract after receiving express prior written agreement from the Client and must notify the Client immediately.
Pitchy can subcontract the present Contract either in part or as a whole. It is expressly agreed upon that Pitchy’s use of Temporary Employment Agencies, is not deemed as subcontracting. In the case of subcontracting, Pitchy remains responsible for the Services carried out by subcontractors.
- Compulsory enforcement – Exception of non-compliance
In the event of a breach of either Parties obligation’s, the Victim of the non-compliance has the right to call for compulsory enforcement of the natural obligations resulting herein. In accordance with the provisions of article 1221 of the French Civil Code, the obligation benefiter can pursue this compulsory enforcement after a simple cease and desist, addressed to the debtor of the obligation by registered letter with acknowledgement of receipt, and will be unsuccessful only if it proves impossible or if there is a clear disproportion between the debtor’s cost and the interest for the creditor.
It is worth reiterating that should article 1219 of the French Civil Code be applied, each Party can refuse their due obligations should the other Party does not comply with their own and said non-compliance is sufficiently severe, that is to say likely to call into question the continuation of the contract or fundamentally alter their economic stability. The execution termination will take effect immediately, once the non-compliant Party receives the notification of non-compliance, addressed as such by the Party victim of said non-compliance indicating the intention of applying the non-compliance exception as long as the non-compliant Party does not rectify the identified non-compliance, served by letter with acknowledgement of receipt or any other written medium allowing for proof of sending.
This exception of non-compliance can also be used pre-emptively, conforming to the specifications of article 1220 of the French Civil Code, if it is clear that one of the Parties will not execute when due the obligations pertaining to them and that the consequences of this non-compliance are sufficiently serious for the Party victim of the non-compliance.
This option is used at own risk of the Party taking the initiative.
The execution termination will take effect immediately, once the presumed non-compliant Party receives the notification of the intention to apply the pre-emptive non-compliance exception until the presumed non-compliant Party carries out the obligation for which a presumed non-compliance is evident, served by letter with acknowledgement of receipt or any other written medium allowing for proof of sending.
Should one Party, not act upon a breach by the other Party, in any of their obligations, this cannot be constructed as a waiver to avail themselves from the future obligation in question.
If one of the stipulations within the Contract is held null or moot, the other stipulations would remain unchanged and will continue to be applied as though the null or moot stipulations where not a factor of the Contract.
- Applicable law and disputes
Every dispute arising from the interpretation or execution of the Contact will be attempted to be resolved in a friendly manner. The Parties agree to meet up to resolve their dispute in the setting of an organised reunion initiated by one of the Parties.
Should this not be possible in the time frame of one (1) month from the holding of the aforementioned meeting, all disputes which may arise from the present Contract, regarding its validity, interpretation, execution, termination, the consequences and after effects of which will be subject to the jurisdiction of the courts within the district of the Paris Court of Appeal. The present clause is applied even in the case of appeal in guarantee or of defendants’ plurality. The language of the Contract is English. Only the French Law is applicable to the present Contract.