A company organized and existing under the laws of France at 15, quai Tilsitt – 69002 Lyon, France, registered at the “Registre du Commerce de Lyon” with the legal identification 429 242 738, represented by his Chairman of the Board Philippe Gilbert, and hereafter referred to as “Alinto”.
1.1. Alinto is a Company that design, develop and provides messaging and groupware software (the “Products”) and proposes a set of services (the “Services”) in order to maintain and support the use of Products. Services and Products are described in Appendix 1.
1.2. Partner is an independent contractor willing to use the Products for providing them to its customers (the “Customers”), and using the Services in order to maintain the Products in operation. Partner is not an agent or legal representative of Alinto for any purpose, and has no authority to act for, bind or commit Alinto.
2.1. “Confidential Information” is all information (whether marked as confidential or which may reasonably be supposed to be confidential by its nature) that is disclosed (whether in writing, orally, on disc, by inspection of documents or by any other means, including but not limited to via electronic communication and internet based provision of information) by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) whether before or after the date of this Agreement including, without limitation the terms of this Agreement and information relating to the Disclosing Party’s operations, processes, plans or intentions, product information, know-how, design rights, trade secrets, technology, computer software and hardware, information, documentation, data and opinions of whatever nature in whatever form (and copies of the same), market opportunities, customer details, details of suppliers and distributors and business affairs.
2.2. “User” is a person, a group of persons or any entity being part of the organization of a Customer or of Partner, which needs to exchange messages over the Internet and which is provided by a Customer or by Partner with a protected access to a given set of Services along with a given set of rights to use them. Each User is associated an account that includes an electronic mailbox, an email address and disk storage space to store messages.
2.3. “SaaS agreement” means that the Products owned by Alinto are provided as a software technology related to messaging and groupware and grants a right to use such technology in order to maintain and support Users of such software products, upon the terms and conditions set forth herein. Products and Services are consequently inseparable.
3. Purpose of the Agreement
3.1. The purpose of this Agreement is To establish the terms and conditions under which Alinto will provide Products to Partner, and will grant Partner the right to resell them to its Customers and under which the Partner will use the Services needed for Product use, and
4. Partner Program
4.1. Under the present Agreement, Partner is entitled to participate in the so called “Alinto Partner program”. Consequently, under the conditions of Article 5 below, Partner may buy the Products from Alinto and shall be granted the rights:
4.1.a. to use the Services corresponding to the Products,
4.1.b. to resell the Products and the Services to Customers,
4.1.c. to grant Customers the rights to use the Services corresponding to the Products bought by them.
5. Operation of Services
5.1. Alinto commits to providing the whole set of Products & Services as listed in Appendix 1. Products will be implemented by software running in Alinto data centre.
5.2. In order to maintain the Products in operation, Alinto may discontinue the Services for short periods of time because of maintenance operations. Alinto shall inform Partner of any such operation not less than 7 working days prior to the scheduled date of it. In case of an urgent situation, Alinto and partner have to agree on a shortest notice period.
5.3. Without contravening applicable laws about privacy, Alinto shall provide Partner with a protected access – by login and password – to a set of web based administration functions and shall grant Partner appropriate rights to use a subset of these functions. Such functions shall enable Partner to:
5.3.a. get statistical data related to the use of Services by Partner, Customers and Users
5.3.b. manage the rights of its Customers and their Users to use Services
5.3.c. provide its Customers with a protected access to the administration functions with associated rights to manage their Users.
5.4. Once an accredited representative of Partner is provided with a protected access to the administration functions here above, Partner shall be considered as fully responsible for managing its Customers and their Users. Partner hereby accepts that Alinto then rely on its statistical data to invoice Partner.
6. Marketing and Sales of Products
6.1. Partner shall market the Products under its own brand name with reference to Alinto technology or not and may sell them as such or integrated into any other package of his choice.
6.2. Partner is expected and encouraged to advertise and promote the sales of Products and the use of Products through all appropriate media including trade show exhibits, catalogues and direct mailings, space advertising, educational meetings, sales aids, etc. and to offer Products as often as possible.
6.3. Prices at which the Products and the Services are proposed and sold in Partner’s market may be set freely by Partner according to its own objectives and constraints.
6.4. Partner shall fully manage the commercial relationship with its Customers, including contract negotiations and discounts grants. Partner shall be the only interface of Alinto for all its Customers and Alinto hereby undertakes not to contact Customers directly unless specifically asked for by Partner and to inform Partner as soon as possible in case one of its Customers gets in touch with Alinto.
6.5. Partner shall have sufficient technical knowledge of the Products and the Services in general and shall provide its Customers with appropriate training and support in using them.
6.6. Relationship between Partner and Customers are under Partner responsibility. As there is no relationship between Alinto and Customers, it is the responsibility of Partner to ensure that Customers agree to an acceptable usage policy.
6.7. Alinto does not represent that it will continue to provide the Services or the Products indefinitely or even for any specific period. Provided that Alinto continues to provide the Products and Services for the duration of any order that has already been accepted, Alinto specifically reserves the right to modify any of the specifications or characteristics of the Products and the Services, to remove any Product from the market, and/or to cease supporting it. In case such a Service or Product is discontinued by Alinto, Alinto shall use its best efforts to offer alternate equivalent solutions to Partner for its Customers.
6.8. In the event that Alinto cease to provide a Service or a Product or if this Agreement terminates according to Article 12, Alinto will give Partner an access allowing him to retrieve all the information belonging to Customers.
7.1. Partner authorizes Alinto to mention it for marketing and promotion purposes as a reference partner during the term of this Agreement.
7.2. Similarly Partner authorizes Alinto to count its Customers and their Users in its statistical figures.
8. Marketing Support
8.1. Alinto shall provide Partner with reasonable Marketing support. This includes – but is not limited to – initial product presentation and training and from time to time, provision of marketing documents or presentations related to market analysis, product positioning or sales approach as well as working meetings. Upon request Alinto may also provide Partner with dedicated support namely in case of specific bids.
9. Technical Support
9.1. Alinto shall provide Partner with level 2 technical support as described in SLA document.
10. Prices and Invoicing
10.1.In exchange of the rights granted to it in Article 4 here above and for the term of the present Agreement, Partner shall pay Alinto according to the terms set out in Appendix 2 herein or defined by a purchase order sent to Alinto by the partner.
10.2.In case Partner requires for any of its Customers any customization or modification of the Services not listed in Appendix 1 and provided Alinto considers such request acceptable and compatible with its product strategy, Alinto shall elaborate from the technical requirements of Partner a financial proposal for the corresponding development work. Such a proposal shall come into in force once duly accepted by Partner and Alinto shall invoice Partner accordingly on completion of the testing phase of the customized and/or modified Services.
10.3.Alinto shall invoice Partner quarterly on the last day of the quarter in arrears. Such invoice shall be based on i) the highest number of simultaneously active accounts for all Customers in the current quarter and ii) the nature of the Products bought from Alinto and resold to Customers.
10.4.In case Partner requires the activation of a domain name on the Alinto platform for one of its Customers, Alinto shall be entitled to invoice at least one active account for this domain per quarter.
10.5.In case the minimum amount for invoices cannot be reached when invoicing on a quarterly basis, Alinto shall invoice Partner every two quarter for the two previous quarters.
10.6.Invoices shall be paid by Partner within thirty (30) days upon issuance thereof. If money transfer charges apply, they shall be paid by Partner. French taxes and law regulations shall apply.
10.7.If Partner does not pay in time, Alinto shall be entitled to charge Partner interest on arrears on any outstanding sums, equal to three (3) times the then current legal interest rate until payment is made in full.
10.8.Except for the Products and the Services referred to in Appendix 1 herein, Alinto is not entitled to request any payment for any other products and services sold by Partner to its Customers.
11.1.Alinto shall defend Partner, its officers, directors and employees against any claim that the Products and the Services infringe any patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify Partner for any amounts awarded against Partner in judgment or settlement of such claims, provided that:
11.1.a. Alinto is given prompt notice of any such claim;
11.1.b. Partner provides reasonable co-operation to Alinto in the defence and settlement of such claim, at Alinto’s expense; and
11.1.c. Alinto is given sole authority to defend or settle the claim.
11.2.In the defence or settlement of any claim, Alinto may procure the right for Partner to continue using the Products and the Services, or replace or modify the Products and the Services so that they become non-infringing.
12. Specific Liabilities
12.1. It is expressly agreed between the Parties that Alinto shall not use Partner’s, Customer’s and Users personal data for promotional or commercial purposes.
12.2.It is expressly agreed between the Parties that Partner is fully responsible for the use of the Products by Customers and Users. Alinto shall not exert any kind of preliminary check on information exchanged by Users, and shall in no way interfere in the use of Products by them. To that extent, it is reminded – and accepted by Partner – that technical software such as Antivirus, AntiSpam or any similar system needed by Alinto to perform a “state of the art” service shall not be considered as a system controlling or modifying messages in the sense of the present Article even though they actually delete, mark or store messages.
12.3.Each Party agrees to comply with all laws and regulations that are applicable to its business when executing the present Agreement. In particular, each Party shall deal with all lawful statements falling on to him within the framework of this Agreement. For this reason, Alinto shall bring any needed support to Partner in case a legal procedure is brought against a Customer.
12.4.It is expressly agreed between the Parties that Alinto is fully responsible for the backup copy of user messages logs in accordance to European regulations. Backup of mailboxes is provided if Customer subscribes to the service (included in Premium services).
13. Limitation of liability
13.1.Alinto shall make its best effort in the implementation of Products and Services to ensure high quality thereof, namely high quality of transport and storage of messages and related data and will provide Partner, Customers and Users with credits in accordance with the Service Level Agreement in Appendix 4.
13.2.Under no circumstances, including any infringement claims, shall Alinto be liable to Partner or any other party for any re-procurement costs, lost revenue or profits or for any other special, incidental or consequential damages, even if Alinto has been informed of such potential loss or damage.
13.3.In the case the responsibility of Alinto is engaged for any prejudice and notwithstanding other sub-clauses of the present Article, the total cumulative amount of Alinto’s liability to Partner or to any of its Customers under this Agreement for any reason, whatsoever, including all legal expenses and taxes, shall in no case exceed 3 months of service.
14. Force Majeure
14.1.If a Party is prevented, hindered or delayed from or in performing any of its obligations under this Agreement by a Force majeure Event, that Party’s obligations under this Agreement are while the Force Majeure Event continues to the extent that it is prevented, hindered or delayed.. It is agreed between the Parties that the provisional suspension of the contract will not amend the contractual term.
14.2.For the implementation of this Article, the Parties agree that “Force Majeure Event” has the meaning of Article 1148 of the French Civil Code and the Case Law of the Cour de Cassation.
15. Term and Termination
15.1.The term of this Agreement is twelve (12) months from the date of acceptance by Partner and Alinto. This Agreement shall automatically renew on each subsequent anniversary for a one-year term, unless it is terminated earlier in accordance with this Agreement.
15.2.Alinto or Partner may terminate this Agreement on each renewal date by giving the other Party not less than thirty (30) days prior to this renewal date written notice via registered mail with return receipt.
15.3.After the first year, Alinto – resp. Partner- may terminate this Agreement at any time by giving the other Party not less than six (6) months – resp. three (3) months – prior written notice via registered mail with return receipt. The Parties recognize that no indemnification is due to any Party in case of such termination.
15.4.A Party may terminate this Agreement, and/or the supply of any Products and Services under any particular order, at any time on written notice to the other Party with immediate effect, in the event that:
15.4.a. the other Party is in breach of any of its material obligations under this Agreement which is not remediable or, if remediable, which it has failed to remedy within fourteen (14) days’ written notice requiring it to do so;
15.4.b. the other Party ceases to do business, becomes unable to pay its debts as they fall due, becomes or is deemed insolvent, has a receiver, manager, administrator, administrative receiver or similar officer appointed in respect of the whole or any part of its assets or business, makes any composition or arrangement with its creditors, takes or suffers any similar action in consequence of debt or an order or resolution is made for its dissolution or liquidation (other than for the purpose of bona fide solvent amalgamation or reconstruction), or any equivalent or similar action or proceeding is taken or suffered in any jurisdiction; or
15.4.c. the other Party does not hold the necessary licences or authorisations required by law to provide or use the Services or Products, as the case may be.
15.5.Either Party may terminate this Agreement by giving no less than fourteen (14) days’ notice to the other Party without indemnification due to the other Party in case of Force Majeure, as defined in the present Agreement, if this Agreement is suspended for more than one month as a consequence of any Force Majeure Event.
16. Consequence of Termination
16.1.Alinto shall continue to supply the Products and the Services for the duration of any order that has already been accepted.
16.2. In the event of termination, Alinto agrees to make available the database of the users and their messages to a format usable by another computer system so that the Customer can continue the operation of its services with another provider. This other provider will assure the work of recovery and integration of the data. The Customer has a period of three months from the date of notification of the cancellation to retrieve his data, after this period they will be destroyed by Alinto.
17. Proprietary Information – Confidentiality
17.1.The Receiving Party will:
17.1.a. not use Confidential Information of the Disclosing Party for a purpose other than the performance of its obligations under this Agreement; and
17.1.b. not disclose Confidential Information of the Disclosing Party to a person except with the prior written consent of the Disclosing Party or in accordance with Articles 15.2 and 15.3.
17.2.The Receiving Party may disclose Confidential Information to any of its directors, other officers, employees, professional advisors and contractors (a “Recipient”) solely to the extent that disclosure is strictly necessary for the purposes of this Agreement.
17.3.The Receiving Party will ensure that each Recipient is made aware of and complies with the Receiving Party’s obligations of confidentiality under this Agreement as if the Recipient was a party to this Agreement and shall indemnify the Disclosing Party for all loss and damage incurred as a result of the Recipient’s breach of confidentiality.
17.4.Articles 15.1 and 15.2 do not apply to Confidential Information:
17.4.a. which is at the date of this Agreement, or at any time after that date becomes general public knowledge other than by the Receiving Party’s or a Recipient’s breach of this Agreement;
17.4.b. which can be shown by the Receiving Party to the Disclosing Party’s reasonable satisfaction to have been known by the Receiving Party before disclosure by the Disclosing Party to the Receiving Party; or
17.4.c. the disclosure of which is required by law or regulation, order of court or the rules of any stock exchange provided that the Receiving Party has taken all reasonable steps to minimise such disclosure and (a) gives the Disclosing Party written notice of any application for any such order or such order as soon as practicable; (b) provides the Disclosing Party with a reasonable opportunity to make representations to the relevant court, authority or exchange to oppose the disclosure; and (c) co-operates with the Disclosing Party in order to oppose such disclosure or (where disclosure cannot be prevented) in order to secure the maximum possible continuing protection for the Confidential Information so disclosed.
17.5.This Agreement does not grant any license under any patents or other intellectual property rights owned or controlled by or licensed to Alinto.
17.6.This Agreement shall be considered strictly confidential and is therefore subject to the present Article.
17.7.The provisions of this Article shall survive for two (2) years beyond the termination of this Agreement.
18. Data Protection
18.1.Partner shall own all right, title and interest in and to all of Partner Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Partner Data.
18.2.Alinto shall follow its archiving procedures for Partner Data as set out in its Back-Up Policy available at Appendix 4 : “Service Level Agreement “www.alinto.com/cgu[ or such other website address as may be notified to Partner from time to time], as such document may be amended by Alinto in its sole discretion from time to time. In the event of any loss or damage to Partner Data, the Partner’s sole and exclusive remedy shall be for Alinto to use reasonable commercial endeavours to restore the lost or damaged Partner Data from the latest back-up of such Partner Data maintained by Alinto in accordance with the archiving procedure described in its Back-Up Policy. Alinto shall not be responsible for any loss, destruction, alteration or disclosure of Partner Data caused by any third party.
18.3.Alinto shall, in providing the Services, comply with its Privacy and Security Policy relating to the privacy and security of Partner Data available atwww.alinto.com/cgu [ or such other website address as may be notified to Partner from time to time, as such document may be amended from time to time by Alinto in its sole discretion.
18.4.If Alinto processes any personal data on Partner’s behalf when performing its obligations under this Agreement, the Parties record their intention that Partner shall be the data controller and Alinto shall be a data processor and in any such case:
18.4.a. Partner shall ensure that Partner is entitled to transfer the relevant personal data to Alinto so that Alinto may lawfully use, process and transfer the personal data in accordance with this agreement on Partner’s behalf;
18.4.b. Partner shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
18.4.c. Alinto shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by Partner from time to time; and
18.4.d. Each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
19. Compliance with legislation
19.1.a. comply with all applicable laws, statutes, regulations and codes relating toFrench regulations.;
19.1.b. not engage in any activity, practice or conduct which would constitute an offence to French regulations.
19.1.c. have and shall maintain in place throughout the term of this Agreement their own policies and procedures, to seek to ensure compliance with the Relevant Requirements.
19.2.Breach of this Article 18 shall be deemed a material breach under Article 14.4.a.
20.1.This Agreement may be amended from time to time upon mutual agreement by the Parties. Any such amendment shall be in writing and shall automatically become part of this Agreement once signed by the Parties.
21.1.The Parties undertake during the term of this Agreement and for three (3) months after its termination not to induce or entice away (whether directly or indirectly) any person who during the previous twelve (12) months has been employed or engaged by the other Party or its subcontractors to perform the Services.
22. Rights of Third Parties
22.1.A person who is not a Party to this Agreement shall have no right to enforce any term of this Agreement.
23. Assignment and Severability
23.1.This Agreement shall be binding upon and inure to the benefit of the Parties. No Party may assign or transfer this Agreement without the prior written consent of the other Party, which consent will not be unreasonably withheld or delayed.
23.2.In particular without limitation the consent will not be unreasonably withheld in the event this Agreement is transferred together with all or a major portion of the business of the assignor provided that the creditworthiness of the assignee is not lower than that of the assignor. Partner does not require any consent from Alinto if this Agreement is being assigned or transferred to an Associate Company of Partner.
24.1.Any notice required to be given by either Party to the other will be deemed validly given if sent by hand, by facsimile, by e-mail or by prepaid registered letter sent through the post (by airmail if sent overseas), to the other Party at its address or facsimile number or e-mail address notified by a Party or such other address or facsimile number as may be notified from time to time for this purpose.
24.2.Any notice sent by hand will be deemed to have been served on delivery.
24.3.Any notice sent by facsimile will be deemed to have been served when sent provided a successful transmission report is produced.
24.4.Any notice sent by prepaid registered letter will be deemed to have been served 48 hours after the time at which it was posted (or seven days if sent by airmail).
24.5.Any notice sent by e-mail will be deemed to have been served when sent provided receipt is acknowledged or confirmation is sent by prepaid registered letter sent by post within 24 hours.
25.1.This Agreement is governed by and shall be construed in accordance with the laws of France.
25.2.Any dispute, controversy or claim arising out of or in connection with this Agreement that the Parties have failed to settle amicably between themselves (Dispute) shall be settled by the Commercial Court of Paris.
25.3.This Agreement and its schedules represent the entire agreement between the Parties regarding this subject. This Agreement supersedes all previous oral or written communications between the parties regarding the subject, and it may not be modified or waived except in writing and signed by an officer or other authorized representative of each Party.
If any provision of this Agreement is held invalid, all other provisions shall remain valid, unless such invalidity would frustrate the purpose of this Agreement. If necessary, the Parties shall substitute for the aforementioned provision a provision valid and in line with the spirit and the economy of this Agreement.