Version dated 21 October 2015.
0 - INTRODUCTION
(a) Oxatis S.A with a capital of 2 194 187 euros (registered at the company register of Marseille with registration number 438 824 708 00053) whose principal place of business is at Immeuble Acropolis, 171 bis chemin de la Madrague Ville, 13002 Marseille ("Oxatis").
(b) Oxatis helps professional clients in their digital transformation by offering them a management and editing solution for their websites through software as a service ("SaaS").
(c) Oxatis' services are listed on the website http://www.oxatis.com ("Oxatis Website"), with the website management and editing solution at the core and other complementary services alongside.
(d) These Terms will apply to any service provided by Oxatis to the exclusion of any other terms of business of any Subscriber (as defined below).
(e) Acceptance of the Subscription Agreement for the purposes of clause 2 may be confirmed by electronic communication (including by email) between Oxatis and the Subscriber. Any communication required by these Terms to be in writing may include electronic communications.
1 - DEFINITIONS
The terms and expressions beginning with a capital letter in the Terms, including in the above preamble, have the meaning indicated below, whether used in the singular or in the plural.
Account: interface through which the Subscriber can connect to their Website and their programming interface;
Additional Services: any services agreed to in writing or performed by Oxatis which are additional to the Initial Offer;
Contents: all information, data, material or element available to the Subscriber on their Website and governed by the Terms and any Special Conditions;
Deliverables: all documents and products created by Oxatis specifically for the Subscriber in the course of Oxatis' performance of the Services, including software, graphs, visual, sound and written media but excluding any Oxatis Background IP. Subject to section 10, the property in the Deliverables is vested in the Subscriber;
Initial offer: the initial delivery proposed by Oxatis via the Oxatis Website, including use of the Oxatis Solution, the creation of a Website, the hosting of the Website and the delivery of online support;
Intellectual Property Rights: any and all patents, rights in inventions, trade marks, service marks, copyrights and related rights, database rights, moral rights, rights in designs, know-how, confidential information and all or any other intellectual or industrial property rights whether or not registered or capable of registration in any part of the world together with all or any goodwill relating to them;
Intermediary: a third party appointed by a Subscriber to create an Account and benefit from a Website. The Intermediary may include:
- A computer salesman;
- A Web agency;
- A communications agency;
- An Oxatis partner;
Internet Expert: Oxatis partner who delivers part of the Services;
Oxatis Background IP: all and any Intellectual Property Rights which are created by or licensed to Oxatis prior to the date of the Subscription Agreement and all Intellectual Property Rights in any to any development of any such Intellectual Property Rights and of any systems, software and methodology of or used by Oxatis in the course of its business;
Oxatis Email Account: under clause 9, the email account made available by Oxatis to a Subscriber;
Oxatis Solution: software developments and information presented on the Oxatis Website which is owned by Oxatis and which permit the Subscriber to create and manage their Website. Under section 10 of these Terms the Subscriber is granted a non-exclusive licence to use the Oxatis Solution;
Oxatis Website: the website run by Oxatis and accessible by the following address, http://www.oxatis.com;
Parties: the parties to the Subscription Agreement, being Oxatis and the Subscriber;
Partner: a third party company whose services are proposed by Oxatis;
Password: a code attached to a username;
Principal Email Address: the email address that the Subscriber wishes to use to communicate with Oxatis;
Registration Date: date the Subscriber obtained a Username and Password;
Services: the Initial Offer and the Additional Services;
Specific Conditions: additional terms and conditions to the Terms expressly agreed to in writing by Oxatis and relating to an individual Subscriber or an Additional Service;
Sleep Mode: a Website on hold and closed to the public for a period determined by these Terms;
Subscriber: a natural or legal person, acting alone or as a representative of third parties, carrying on a business, who is registered at the Oxatis Website after having familiarised itself with and accepted the Terms and creating their proper Website with the sub-domain "username.Oxatis.com";
Subscription Agreement: these Terms and any Specific Conditions agreed for Additional Services;
Tariff: the subscription payment plan included in the Initial Offer, payment of which is required to activate and maintain activation of the Website;
Terms: these terms and condition of use of the Oxatis Website which govern the delivery of the Services to the Subscriber as well as the access and use of the Services;
User Identification Information ("UII"): the information (Website designation, Password etc.) which permits the Subscriber to access their Account;
User: a user who connects to, navigates and uses their Website hosted by the Oxatis platform at their own risk;
Website: the website of a Subscriber which is a sub-domain of Oxatis.com, for example "username.Oxatis.com".
2 - ACCEPTATION OF THE TERMS – MODIFICATIONS
Access to and use of the Oxatis Website and Services is restricted to Subscribers who have read and accepted without reservation the current Terms.
The Subscriber warrants that it has the capacity to contract and, if acting on behalf of a company, the necessary authorisation to contract on that company's behalf.
Access to the Services is subject to compliance with these Terms.
Oxatis reserves the right to modify these Terms at any time. Oxatis will notify the Subscribers of any modification by way of an announcement on the Oxatis Website eight (8) days before the modification comes into force. If the modification is substantial, the Subscriber has the following options:
- The Subscriber consents to the aforementioned modification and they will automatically come into force eight (8) days later without further notification; or
- The Subscriber refuses the substantial modification, and:
-- For continuing contracts of a fixed term which are affected by the substantial modification, the contractual terms applicable on the day the parties entered into the contract will be maintained until the end of the contract;
-- For continuing contracts without a fixed term which are affected by the substantial modifications, the Subscriber can cancel the contract without penalty by notifying Oxatis by letter sent by registered letter with acknowledged receipt to be received within the eight (8) days following the notification. The Subscriber shall pay for the Services used until the cancellation takes effect, calculated on a pro rata basis.
3 - REGISTRATION - SUBSCRIPTION
In order to access the Oxatis Solution and the Services, every Subscriber must create, directly or through an Intermediary, an Account by filling in the registration form online. The Subscriber must choose a Tariff and accept without reservation the Terms.
3.1 - Subscriber Registration
After registration, the Subscriber will have UII which will allow it to access its account. The Subscriber agrees to keep this UII secret and not communicate it to others. The Subscriber takes responsibility for any action effected on its Website using its UII.
The UII allows the Subscriber access to and the ability to edit its Website and the Subscriber shall not lend, license or give the UII to a third party whether for free or for a fee.
Oxatis guarantees the confidentiality of the Subscriber's UII and has taken measures to ensure their security.
The Subscriber warrants and undertakes that it has given and will give true, complete and current information. If any information given by the Subscriber is untrue, incomplete or out of date, Oxatis reserves the right, without indemnity or notice, to suspend or cancel the Subscriber's Account, to delete all or part of the Subscriber's Website, including any data or documents, and cancel the access to the Oxatis Website, pages, documents and data or block the Subscriber from all or part of the Services, without prejudice to other courses of action.
Oxatis reserves the discretionary right to refuse without indemnity access to the Services to any person who Oxatis judges to be incompatible with a good organisation and good management of the Services.
3.2 - Subscriber Registration by an Intermediary
To have access to the Oxatis Solution and the Services, a Subscriber can have an account created by an Intermediary. In this case, the Intermediary accepts these Terms on behalf of and for the account of the Subscriber who has provided the necessary authorisations.
4 - THE OXATIS SOLUTION AND THE PRINCIPLE OFFER
4.1 - The Oxatis Solution
Unless the Subscription Agreement provides otherwise, the Oxatis Website is accessible from any location, subject to any technical requirements and access to the internet.
The Subscriber agrees to comply with any rule of public policy regarding user behaviour on the internet applicable in the country from which the Subscriber is using the Oxatis Website.
At any moment, Oxatis has the right to modify or move the contents of the Oxatis Website.
4.2 - The Initial Offer
4.2.1 - Use of the Oxatis Solution
Once the Subscriber is registered they can either directly, or via an Intermediary, benefit from the Oxatis Solution, any updates and the Services.
However, the Subscriber only benefits from the Oxatis Solution on the basis of a non-exclusive licence to use granted by Oxatis, under section 11 of these Terms.
4.2.2 - Creation of the Website
The Initial Offer permits a Subscriber to create its Website within a purely technical framework. The Subscriber will be then solely responsible for the commercial, logistical, marketing and financial management of their Website.
Oxatis is therefore not responsible for any inefficiency, from a commercial perspective, of the Website, because the Subscriber is solely responsible for its management. Oxatis is not responsible for the number of visitors to the Website, its commercial viability, or whether it is fit for use for the Subscriber.
4.2.3 - Online Support
As part of the Initial Offer, Oxatis provides the Subscriber online support from 9:00am to 11:00pm every day of the year (including bank holidays), 365 days per year.
4.2.4 - Hosting
As part of the Initial Offer, Oxatis provides the Website which is hosted on its servers. Oxatis is therefore the Website host but the Subscriber acknowledges that Oxatis does not have editorial control over the Website.
5 - AVAILABILITY OF ADDITIONAL SERVICES
5.1 - Additional Services
The different Additional Services offered by Oxatis consist mainly of the following:
- Access to online applications;
- Provision of a postal delivery solution for products ordered via their Website;
- Provision of an online payment solution;
- Access to training and coaching;
- Provision of various information services;
- Access to marketing solutions (creation and communication of marketing campaigns);
- Access to any other services offered by Oxatis or a Partner from time to time.
The detailed description of each Additional Service is available on the Oxatis Website.
To deliver an Additional Service, Oxatis can at any time engage a Partner or other third party.
5.2 - Conditions
5.2.1 - Access to training and coaching
If the Subscriber wants to order training or online coaching as an Additional Service, they must choose a fixed date on which the service will be provided by Oxatis.
In the fifteen (15) day period before the fixed date for delivery of the service the Subscriber may change the date once.
If the Subscriber cancels or modifies the date for a second time in the fifteen (15) day period before the fixed date for delivery of the service they will be liable for cancellation or modification fees. All cost or fees incurred because of the cancellation or modification in the fifteen (15) day period before the fixed date for delivery of the service by the Subscriber will be borne solely by the Subscriber without refund.
5.2.2 - Other types of Additional Services without fixed delivery date
Additional Services requiring the exchange of information with the Subscriber, such as the creation of a graph, the creation of a personalised homepage, or the availability of referencing etc., the lack of or the excessive delay (more than 90 days from the request) of the information necessary to provide the Additional Service from the Subscriber will result in the cancellation of the Additional Service with any costs to be borne solely by the Subscriber without giving rise to any right of recourse.
The Services require use of a telephone line accessible from France by a landline telephone number with no additional charges.
6 - RIGHT OF CANCELLATION
The right of cancellation is not applicable in principle between professionals.
In exception to this principle, under article L121-16-1, III du Code de la Consommation, certain professional Subscribers may be able to benefit from a right of cancelation within a period of fourteen (14) days from the conclusion of a contract ordering a Service. This right of cancelation is only available to contracts concluded "off-premises".
To benefit, the professional Subscriber needs to show that:
- The contract he wishes to cancel is outside of his principle activity
- The number of employees he employs is less than 5.
Oxatis does not authorise any Intermediaries to approach potential clients or to conclude Subscription Agreements. Therefore, no contracts concluded by an Intermediary will be concluded "off-premises", giving rise to the right of cancellation.
7 - SUBSCRIPTION TERM
7.1 - Services without fixed term
For Subscribers who have chosen the option "Services without fixed term", the Subscriber has access to the Oxatis Solution and the Services due to their subscription which corresponds to their chosen Tariff.
The subscription is for a term of one (1) month from the Date of Registration. It is automatically renewed monthly.
The Subscriber can decide each month whether or not to subscribe to the Services by unsubscribing using the administration tool in their Account.
The Subscriber is free to change the Tariff every month using the administration tool in their Account provided they do so before the relevant deadline.
7.2 - Service with a fixed term
Where the Subscriber has agreed a minimum fixed term of twelve (12) or twenty-four (24) months and the Subscriber cancels before the end of this minimum fixed term they are liable to pay the Tariff due for the remaining minimum fixed term. The term is automatically renewed on a twelve (12) month basis.
The Subscriber can choose not to automatically renew the term at any time by using the administration tool in their Account to unsubscribe before the relevant anniversary of their term.
The Subscriber can increase their Tariff each month as long as they do so at least (1) one working day before the monthly anniversary using the administration tool in their Account and without modification to the monthly anniversary date.
If the Subscriber requests a Service with a minimum fixed period, this new minimum period will be substituted for the term that was previously running unless the new period is for a smaller period of time.
7.3 - Payment in advance
If the Subscriber pays in advance for the Services it is non-refundable in all circumstances and the term of the Subscription Agreement shall be that of the pre-paid period.
No sum will be due by Oxatis if the Subscriber cancels the Subscription Agreement in advance. No purchase of Service paid in advance gives rise to a right to a refund.
7.4 - Sleep Mode
If the Subscriber decides at the end of their term not to automatically renew their subscription their Website will be put into Sleep Mode for a period of twelve (12) months under section 15.2 below during which time their subscription can be re-activated.
During the Sleep Mode the Website is not accessible by the Subscriber, by clients or by search engines.
8 - PAYMENT
8.1 - Tariffs
Oxatis' prices are available on the Oxatis Website and are exclusive of VAT.
Oxatis reserves the right to change its Tariffs at any time. The Subscriber will be given at least two (2) months' notice of any change. If the Subscriber does not wish to accept an increase in Tariff, it can cancel its subscription at the end of each monthly period provided such cancellation is effected within a period of four (4) months following the relevant Tariff increase. If the Subscriber is within a minimum fixed period it may cancel its subscription before the end of the minimum fixed period without any fees, indemnity or refund.
8.2 - Tariff Form
Access to the Services is provided in consideration of:
- Payment of a subscription for the Initial Offer;
- Payment of a fixed sum for Additional Services.
8.2.1 - Subscription
The price of the subscription for the Initial Offer depends on the Tariff chosen by the Subscriber through their Account.
The sum of the Tariff is determined by three elements: the number of Website pages, the number of products sold and the chosen storage capacity.
Where the Subscriber goes over any of the limits of their chosen Tariff, the Subscriber agrees to pay an additional sum relative to the level of increase in any of the three aforementioned elements.
8.2.2 - Payment for Additional Services
The price of the Additional Services will depend on the options chosen by the Subscriber in their Account. Any payment is subject to clause 7.3 of these Terms.
8.3 - Invoices
The Subscriber's agreement to the Subscription Agreement by way of their signature includes an agreement to immediately pay any sums due for the Services and any additional sums in the case of use of the Website over the level of their chosen Tariff. Where an invoice is not paid in the given time period, whether for the subscription for the Initial Offer or for Additional Services order by the Subscriber via their Account, Oxatis reserves the right to suspend the Subscriber's access to the Website by putting it in Sleep Mode.
Invoices are raised monthly in advance from the date of activation of the subscription.
The subscription is payable in advance for all Services with the exception of requested Additional Services, which are payable at the end of the month. Payment is made directly via the Oxatis Website by a variety of payment options.
8.4 - Payment problems
Where payment is late, Oxatis will invoice the Subscriber with penalties on late payment calculated by the legal rate in force. These penalties will be calculated on the following basis:
Late penalty = (sum due including taxes * legal rate applicable for the semester) * (number of days since payment due in the semester / 365).
The French Commercial Code says that the applicable legal rate = interest rate applied by the European Central Bank to its most recent refinancing operation plus 10%.
The late payment penalties are payable the day after the last date for payment given by an invoice without notice. The Subscriber becomes Oxatis' creditor, and will indemnify Oxatis for costs of recovery at a sum of forty (40) euros.
Oxatis can also decide, under article 1226 of the French Civil Code, to apply by way of compensation an amount equal to 20% of the sum due including taxes and legal fees, without prejudice to any legal proceedings, suspension or cancellation of the Subscription Agreement.
Where a bank rejects the method of payment chosen by the Subscriber, a fee of fifteen (15) euros will be automatically invoiced to the Subscriber. The method of payment which gave rise to the rejection will no longer be accepted by Oxatis for subsequent payments, and the Subscriber must choose another payment method.
Where conditions of repayment are granted, such as payment in instalments, the default of a single term of those conditions will render the Subscriber's debt payable in full immediately. Any active Services will be suspended immediately without any indemnity.
8.5 - Guarantees/advances
Where there is a payment problem and/or a decrease in the Subscriber's creditworthiness and/or uncertainty as to whether the Subscriber can meet its financial commitments, Oxatis reserves the right to demand stricter payment conditions – such as a deposit or payment in advance for all or part of the Services and/or to demand supplementary guarantees from the Subscriber.
This is in particular, but not limited to, the case for all Additional Services, the prices of which are likely to be much higher than the Tariffs.
Where the Subscriber refuses to comply with such conditions, Oxatis can, without indemnifying the Subscriber in any way, suspend performance of the Services immediately.
8.6 - Consequence of outstanding payment
Where there is an outstanding payment for any of the Services, the Subscriber's Website will be put into Sleep Mode until payment in full.
9 - THE SUBSCRIBER'S OBLIGATIONS
The Subscriber agrees to use the Oxatis Solution and the Services in accordance with all provisions of the Subscription Agreement.
The Subscriber also agrees to comply with all legal requirements.
9.1 - Provision of Content by the Subscriber
The Subscriber is responsible for the Content that it makes available to the public via the Services.
The Subscriber remains the sole editor and publisher of its Content. Oxatis will in no way be considered as editor of the Website created by the Subscriber using the Services.
The Subscriber warrants that all Content made available to the public by it will comply with any applicable legal and regulatory provisions.
The Subscriber agrees in particular not to publish Content which is and warrants that no Content published by it is:
- an apology for crimes against humanity or war crimes, glorification of Nazism, glorification of crimes or offences, challenges the existence of crimes against humanity or recognised genocides, violating the dignity of a human person;
- Violent or pornographic, paedophilic or could harm minors;
- Contrary to public order or morality;
- Defamatory or insulting, outrageous, untrue or libellous towards third parties, natural or legal person;
- An act of infringement, unfair competition or parasitism;
- Racist, xenophobic, revisionist or prejudicial to the honour or reputation of others, inciting discrimination, hatred or violence against a person or group of persons because of their real or alleged origin, sex, marital status, physical appearance, name, state of health, disability, genetic characteristics, manners, sexual orientation, age, political opinions, trade union activities, ethnic group, nationality, race or religion;
- Infringing privacy, privacy of privacy or image rights of individuals;
- Contains viruses, worms, Trojan horses, all files or programs likely to interrupt, destroy or limit the functionality of any computer or computer network linked directly or indirectly to Oxatis' activities;
- Threatening a person or group of persons;
- Inciting to commit an offence, a crime or an act of terrorism;
- In violation of the secrecy of correspondence; or
- Allowing a third party to acquire, directly or indirectly pirated software, software for acts of piracy and intrusion into computer systems and telecommunications, viruses and other logic bombs and generally any software tool or another to infringe the rights of others and the security of persons and property.
The Subscriber also agrees not to create hypertext links from the Website to sites that do not respect the same principles.
Regarding Websites which offer the supply of goods and are e-commerce providers, the Subscriber agrees to:
- not promote or market any products whose marketing is prohibited by law, including some animal species and animal parts, some firearms and explosives, some classified cultural property, the property subject to embargo, stolen or illicit goods, credit cards, identity documents issued by the state (identity cards, passport), some lottery tickets, tickets or certain contracts (without travel resale rights), illegal decoders, drugs and associated objects, equipment Monitoring prohibited by law, false and fake stamps currencies, financial instruments (stocks, bonds, securities and other certificates), postage meters, banned or restricted goods, materials for opening locks, drugs regulated, organs and products of the human body, dangerous and illegal substances, tobacco and related products;
- Carefully read the contracts, regulations, terms and conditions relating to each product as they are likely to restrict the right of the Subscriber to sell the item on the Website;
- Check that the marketing of these products is not limited or prohibited by law; and
- Comply with the Electronic Commerce (EC Directive) Regulations 2002 and all applicable laws.
Any breach of these obligations constitutes a ground for suspension, termination of the Subscription Agreement or removal of the Content by Oxatis under clauses 13 and 14 of these Terms.
9.2 - Email Accounts used by the Subscriber
9.2.1 - Principal Email Address
Upon registration, the Subscriber shall notify Oxatis of the email address it wants to use as part of its subscription. This email address is the Principal Email Address and Oxatis will communicate with the Subscriber using this address.
If the Subscriber wishes to change the Principal Email Address, it shall inform Oxatis immediately and make the change in its Account.
The Subscriber agrees to regularly read the messages sent by Oxatis to this address. Any message sent by Oxatis to the Principal Email Address is deemed to be received and read by the Subscriber.
Oxatis uses this mailbox to send two types of emails:
- Emails containing technical information. Given the importance of the Oxatis / Subscriber relationship, accepted by the Subscriber in these Terms, it is not possible to unsubscribe from these emails; and
- Information update emails (software evolution, new services etc.). The Subscriber can unsubscribe from these emails at any time by clicking the link provided for this purpose in all outgoing emails.
9.2.2 - Oxatis Email Account
At the request of the Subscriber, Oxatis can assign one or more email accounts to the Subscriber depending on the Services chosen ("Oxatis Email Account"). This email service allows the Subscriber exclusively to send and receive emails.
In their use of the Oxatis Email Account, the Subscriber agrees to comply with any law or rule which may be applicable to the sending of information or data, in particular compliance with a French Law.
The Subscriber guarantees not to abuse the Oxatis Email Account and use it for any illegal or inappropriate purposes etc. Any abuse in the use of the Oxatis Email Account will be considered a breach of the Terms and may result in the termination of the Subscription Agreement.
Abuse includes the use of the Oxatis Email Account to send unsolicited marketing emails, or spam, especially to solicit responses, sending mass emails to the same address from the Oxatis Email Account, sending threating emails or the use of false information, for example a false return address, from an Oxatis server.
9.3 - Use of the Services
The Subscriber shall ensure that any partners or employees using the Services do so in accordance with these Terms. If it becomes apparent that the Subscriber does not have the necessary skills to use the Services, Oxatis will not be liable for the lack of training/knowledge of the Subscriber or its employees.
The Subscriber shall notify Oxatis immediately and in detail of any problems encountered in the use of the Services.
The Subscriber is solely responsible for its use of the Oxatis Solution, even under the guidance of an Oxatis technician.
9.4 - Use of the Oxatis servers
Use of the Services is conditional upon the Subscriber not abusing the Services. The following are, amongst others, considered abusive:
- The Website being visited by more than 1,000 customers per minute;
- Access to online support or telephone support in amounts exceeding 5 time the average Subscriber's use on the previous month;
- Use for improper purposes, particularly the sharing of services and their resale to retail;
- Use which disrupts or degrades the Oxatis infrastructure.
10 - OXATIS' OBLIGATIONS
10.1 - Continuity of the Services
Subject to clauses 9.3, 12, 13 and 14, Oxatis commits to use all reasonable commercial endeavours to ensure continuity of the Services to the Subscribers.
Oxatis will use reasonable endeavours to provide the Services and cannot be held responsible for every disruption to the Services. In particular but without limitation, Oxatis is not responsible for the Subscriber's failure to use advice provided by Oxatis via the online and telephone support or for advice not coming from Oxatis.
Oxatis is not responsible for the quality of the service of its Partners. The Subscriber has freely entered into a contract for the service with the Partner (see clause 9.2).
Where the Services are unavailable:
- For a total period of less than 3% of the monthly period, no financial compensation is due;
- For a total period of between 3% and 6% of the monthly period, the monthly subscription period will be increased in proportion to the unavailability;
- For a period of more than 6% of the monthly period, the customer will be credited with one month of the Tariff in use on the Website.
Any abusive use of the Services or the Website excludes the Subscriber from receiving any compensation. The remedies above are the Subscriber's exclusive remedy in respect of the unavailability in question.
10.2 - Introduction of Subscribers to Partners and Internet Experts
Oxatis offers the service of introducing the Subscriber to Partners and Internet Experts from its network of qualified professionals.
The Subscriber is free to contract or not with the Partner or Internet Expert.
If the Subscriber and the Partner or Internet Expert contract for the supply of services, Oxatis is a third party to the relationship and has no control over or responsibility for the provision of services of the Partner.
10.3 - Hosting Services
The Website is hosted on the Oxatis servers. Oxatis is a 'host' under applicable French Law.
Subject to this clause and clauses 12, 13 and 14 of these Terms, the Oxatis servers are accessible 24 hours a day, 7 days a week.
Oxatis reserves the right to at any time, partially or totally, interrupt access to the Oxatis Solution and the Services, without liability being incurred and without giving rise to a right to compensation in the following cases:
- Failure of computer systems, software and hardware of its servers;
- Attack of the system by third parties, including denial of service attacks and hacking;
- Maintenance and / or improvement of the servers.
The Subscriber shall include a notice on its Website expressly stating that the Website is hosted by Oxatis, to ensure that Oxatis complies with legal requirements. The Subscriber shall ensure that the notice is always visible to Users.
10.4 - Notification procedure
If Subscribers or Users become aware of illicit Content and want it removed, they are encouraged to alert Oxatis either by email or by using the form available at www.oxatis.com/declaration-contenu-illicite.htm completing all necessary information, such as:
- Name, occupation, residence, nationality, date and place of birth;
- Name, head office and its registration number if is a company;
- Description of the facts and location of the illicit Content;
- Why the content should be removed;
- A copy of the communication addressed to the author or publisher of the contentious content to request the removal, modification or interruption, or evidence demonstrating that it was not possible to reach them.
Upon receipt of such notification, Oxatis will be entitled to withdraw the alleged illegal contents as soon as possible in accordance with the laws in force. Oxatis can also request that the Subscriber who published the Content provides evidence to justify the legality of the Content.
If Oxatis receives a notification of illegal Content including, but not limited to, crimes against humanity, incitement of racial hate or relating to child pornography, Oxatis may notify the proper authorities.
The Subscriber or User who notifies Oxatis of allegedly illicit content in order to get it withdrawn using false information will be liable for any damage, cost, expense (including legal fees) or liability Oxatis incurs as a result.
10.5 - Phone Assistance Benefits
Where a Subscriber has subscribed for a Service including telephone support, Oxatis will respond promptly to Subscriber enquires related to its use of the Services provided by Oxatis excluding services provided by third parties.
The number of calls a Subscriber can make is not limited, but abusive and fraudulent use is not permitted. Oxatis is not liable for a lack of training or lack of support if the Subscriber does not have the skills required to use the platform.
Only an Oxatis account holder is entitled to contact the telephone helpline.
Telephone support is provided by qualified technical personnel Monday to Friday from 9:00am to 6:00pm, except bank holidays. Oxatis reserves the right to change the hours when telephone support is available and will notify the Subscriber of any changes.
11 - INTELLECTUAL PROPERTY
11.1 - Oxatis' Intellectual Property Rights
11.1.1 - The Oxatis Solution
Oxatis is the sole owner of the Oxatis Solution which is made available to Subscribers to allow them to create their Website, by way of the grant of a licence for the non-exclusive use for the term of the Subscription Agreement.
The licence authorises the Subscriber to use the Oxatis Solution to create their Website for their personal use. The licence is non-exclusive, non-transferable and non-sublicensable. The Subscriber is therefore prohibited from sub-licencing to third parties or exploiting the Oxatis Solution commercially, under threat of legal prosecution.
The Subscriber is prohibited from reproducing or violating, in any way, the Oxatis Solution.
11.1.2 - Oxatis' Websites
The www.oxatis.com sites and www.actinic.com and all content sites blogs, forums, online help, and local versions (.FR, .IT, .ES, .CO.UK, etc.) edited by Oxatis are the exclusive property of Oxatis.
All material protected by intellectual property rights and made available to the Subscriber remain the exclusive property of Oxatis.
The Subscriber acknowledges and accepts that the websites published by Oxatis and their content - including, but not limited to, text, software, music, sound, photographs, videos, drawings or other material contained in advertisements - are likely to be protected by intellectual property rights (trademarks, copyrights, designs or patents). Subscribers, Internet Experts and Partners are not permitted to copy, use, reproduce, distribute the Oxatis websites and/or their content, or create derivative works based on any or all of these sites and/or their content without the express written agreement of Oxatis.
11.1.3 - The Subscriber's Website
Oxatis grants the Subscriber a non-exclusive, non-transferable and inalienable licence to use the items requested by the Subscriber and created by Oxatis to personalise the Subscriber's Website.
This licence includes the right to reproduce, represent, adapt, translate, arrange, but excludes all right to exploit the items commercially.
The licence is granted for the duration of the intellectual property rights on the items and applies globally.
11.1.4 - The Subscriber's Website Content
All material protected by intellectual property rights and provided by the Subscriber on its Website remain the sole property of the Subscriber.
The Subscriber warrants that it owns the intellectual property rights or holds without restriction all authorisations for the use of any material on its Website. The Subscriber will indemnify Oxatis against any damage, expense (including legal fees), cost, or liability arising in connection with any claim by a third party that any Content infringes the intellectual property rights of a third party and against any direct or indirect damage suffered by Oxatis as a result.
In no case will Oxatis be held liable for Content provided by the Subscriber.
In the event of a breach or suspected breach of this clause by the Subscriber, Oxatis can withdraw the disputed Content, close the Website and terminate the Subscription Agreement.
11.1.5 - Guarantees
The Subscriber agrees to indemnify and hold harmless Oxatis for any damage resulting from a dispute over the intellectual property of the Content on its Website.
The Subscriber expressly authorises Oxatis, at the Subscriber's expense but subject to proportionality, to defend itself against all actions.
If an action is brought against Oxatis via email or phone, Oxatis will communicate the details that are in dispute to the Subscriber. The Subscriber agrees to take all measures to rectify the situation and respond to the applicant within seven (7) days by registered letter with acknowledged receipt, and will provide a copy to Oxatis.
If an action is brought against Oxatis by letter, registered letter, fax or other document issued by a lawyer, a legal body or representative of Justice, Oxatis will immediately transfer the case to its lawyers and will bill the Subscriber concerned in instalments of 500 euros before tax, the sums required to ensure its proper defence.
11.2 - Costs of Responding to Statutory Information Requests
The Subscriber agrees to pay the sum of 300 euros for each request for information relating to the Subscriber's use of the Services from governmental or regulatory bodies such as HMRC and other public bodies entitled to ask Oxatis to collate information on the operation of its website. This amount will be invoiced by Oxatis fourteen (14) days after delivery by Oxatis of the requested items. Oxatis can provide the Subscriber proof of the request by the public body, but not the detail of its content which will remain confidential.
11.3 - Use of Subscriber information
The acceptance of these Terms includes the Subscriber's permission for Oxatis to use its contact details, including the address of its Website, on marketing materials.
The Subscriber agrees that Oxatis can use these references as part of the "Testimonials" section of the Oxatis Website.
The Subscriber expressly authorises Oxatis to reproduce its logo or any other material from the Subscriber's Website which may be protected by intellectual property rights.
The conditions for the use of the Subscriber's details and Website in the "Testimonials" section may be specified in writing if requested by the Subscriber.
The Subscriber has the right to refuse to consent to by sending Oxatis notice of their refusal in writing.
12 - DATA PROTECTION
12.1 - Collected Data
To use the Oxatis site and the Services it offers, Subscribers and Users are asked to provide Oxatis with their personal information.
Subscribers and Users must in particular provide the data required during the registration process (the "Data") to be able to register and access the Services.
Without this information registration for the Services cannot be completed.
12.2 - Purpose
The Data will be processed for the following purposes:
- Access to services;
- Sending Oxatis newsletters;
- Generation of statistics on the use of the Oxatis website;
- Improving marketing and promotional efforts as well as content and offers on the Oxatis website;
- Receipt of personalised offers.
12.3 - Recipients of treatment
The Data is for use by Oxatis staff to manage the Oxatis website and the Services. Certain Data may be accessible to Users and may be transferred to commercial companies for marketing purposes in anonymous form. However, some information such as the Subscriber's password and bank account details is not provided to these companies, even in anonymous form. Under special circumstances, Oxatis may be required to disclose data by the judicial authorities.
12.4 - Data Retention
The Data is being retained by Oxatis for the time strictly necessary to achieve the aims mentioned above. Beyond this period, they will be kept for statistical purposes only and will not give rise to any exploitation. Oxatis also has the obligation to retain identification data of Subscribers publishing illegal content to disclose this data to the relevant authorities as provided by law.
12.5 - Data Transfer
Within the normal course of its activities, Oxatis collects and processes information concerning Subscribers and Users in France and in the world. It is possible that certain information will be hosted by a technical service provider in France or any other country in the world, the role of the latter being strictly limited to a technical provision of storing information. In such a case, it is specified that this provider will not process any data collected.
12.6 - Rights of Users and Subscribers
Subscribers and Users have a right of access, rectification, cancellation and opposition regarding their Data. If they wish to consult the Data provided to Oxatis, cancel their registration to all or part of the Services, the newsletter or any other service, they may either (i) carry out the consultation and/or make the necessary amendments to their data in their Account, or (ii) address this request by registered letter with return receipt to the following address: Oxatis - Customer Service - Immeuble Acropolis - 171 bis chemin de la Madrague Ville - 13002 Marseille - France.
Subscribers and Users may also require their Data to be rectified, completed, clarified, updated or deleted if it is inaccurate, incomplete, misleading or outdated.
Subscribers and Users have the right to object that their Data be processed or transferred by sending this request by registered letter with acknowledgment of receipt to the address above. The processing of some Data is necessary for the use of the Services so Subscribers and Users objecting to the processing of their Data may not be able to use the Services.
12.7 - Cookies
The Subscribers and Users wishing to register on the Oxatis website and use the Services cannot object to the insertion of cookies on their computers because they enable the customisation of the Services and content available on the Oxatis website.
Cookies are stored on the Subscriber/User's computer for one (1) year.
12.8 - Security
Oxatis will use reasonable measures to safeguard the Data collected.
13 - OXATIS WARRANTIES AND LIABILITY
Nothing in the Subscription Agreement or these Terms shall limit or exclude any liability of either party which may not be limited or excluded by law, including without limitation liability for death or personal injury caused by its negligence or for fraud or fraudulent misrepresentation.
Oxatis is not in any way responsible for the Content it hosts through the Websites.
The Subscriber acknowledges that Oxatis has no control, in any form whatsoever, over the nature and characteristics of any data transferred or stored by the Services. As such, Oxatis shall not be liable for, in particular but without limitation:
- the content of messages sent by the Subscriber through use of the Services;
- damage resulting from loss, alteration or fraudulent access to data stored and / or hosted by Oxatis.
Oxatis is not the editor of the Websites and is not liable for their Content.
Oxatis will in no event be liable for any damages of any nature whatsoever arising directly or indirectly from any service provided by one of its Partners in accordance with the provisions of clause 10.2.
Oxatis shall in no event be liable (whether in compensation for any breach or pursuant to any indemnity and whether in contract, tort, for breach of statutory duty or otherwise) for:
(a) any indirect, special, incidental or consequential loss;
(b) loss of revenue;
(c) loss of goodwill;
(d) loss of data;
(e) any financial or commercial loss;
(f) any disturbance to business;
(g) lost profits or any intangible loss; or
(h) any loss which procedures and precautions implemented by (or which would generally be implemented by a person exercising a degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a reasonably and appropriately skilled and experienced person in the same or similar circumstances) could have prevented or reduced.
The liability of Oxatis for any default under or relating to the Subscription Agreement or these Terms (whether in compensation for any breach, under any indemnity or otherwise and whether in contract, tort, for breach of statutory duty or otherwise) shall not exceed the amount paid by the Subscriber for the Services subscribed in the year in which the incident occurred.
Oxatis shall not be liable because of the content available on other sites or Internet sources accessible through hypertext links inserted on the Oxatis website (including as a result of advertising, products, services or other information).
In accordance with clauses 10.3 and 14, Oxatis reserves the right to withdraw or suspend the access to any Content following receipt of a notification from a Subscriber or a third party, or if it has actual knowledge of manifestly illegal content. Oxatis shall not be liable for any such withdrawal or suspension. Oxatis is not able to guarantee Subscribers that no errors will appear during the use of the Oxatis website. Oxatis does not guarantee that the information and Services provided are free of any error or defect.
The Services are dependent on the quality of the Internet. Consequently, Oxatis does not guarantee the reliability of the Services and does not guarantee the correction of defects found on the Internet. Oxatis cannot be held liable for the disruption of the Internet network affecting the use of the Service. Oxatis makes no warranty as to the distribution of conditions, broadcast quality, transmission and accessibility of Content.
It is expressly agreed between the parties and accepted by the Subscriber that the provisions of this clause will continue to apply even if these provisions have been resolved by a final court decision.
These provisions provide for a division of risks between Oxatis and the Subscriber. The price reflects this allocation as well as the limitation of liability described.
14 - WITHDRAWAL OF CONTENT AND SUSPENSION OF SUBSCRIBER ACCOUNT
If Oxatis is notified under clause 9.4 that the Content published by the Subscriber does not comply with the provisions of these Terms, Oxatis can proceed with immediate withdrawal of the alleged illicit Content.
Oxatis can also block the Subscriber's access to all or part of the Services or suspend the Subscriber's Account at any time and without compensation for a period it sees fit.
Where possible, Oxatis will notify the Subscriber of the withdrawal of the Content and/or the suspension of his account and the reasons for such withdrawal or suspension.
15 - TERMINATION AND SLEEP MODE
15.1 - Termination
Oxatis can suspend the Subscriber's Account or access to the Services, without indemnifying the Subscriber, in the following cases:
- Where Oxatis finds that the Subscriber has been dishonest and it is a matter of urgency to stop the actions concerned;
- Where the Subscriber's actions put the functioning of the Oxatis Solution and its technology in danger;
- Where the Contents are prohibited by a law or rule in the country concerned;
- Where the Subscriber does not comply with these Terms.
In the above cases, the Subscription Agreement may be terminated by Oxatis at any time after the expiration of ten (10) days' notice by registered letter with acknowledgment of receipt, without having to indemnify the Subscriber.
15.2 - Sleep Mode
When the Subscriber voluntarily decides to unsubscribe from all Services to which he had subscribed and/or the Subscription Agreement is terminated under clause 14.1, Oxatis can put the Subscriber's Website into Sleep Mode for a period of twelve (12) months before the final destruction of the data on the Website.
15.3 - End of Sleep Mode
At the end of the twelve (12) months of Sleep Mode, where the Subscriber has not entered into a new Subscription Agreement, the Website and all of its data will be permanently destroyed by Oxatis.
Oxatis will only retain data related to past invoices, and only for the period required by law.
16 - REINSTATEMENT AND TRANSFER OF DATA
The Subscriber has the right, from their Account, to extract all of their data, the Deliverables and other Content in a standard format.
Where the Subscriber wants Oxatis' assistance for the transfer of its Website to another server, the Subscriber should make a request to Oxatis, who will provide them with a quote to transfer the data of their Website to the new server.
17 - MISCELLANEOUS
17.1 - Force majeure
Any event relating to a case of force majeure, such as is normally defined by case law, suspends the rights and obligations of the parties. In the situation where these events persist beyond a two (2) month time period from the time of incidence, the parties can terminate the Subscription Contract without compensation on either party, by means of a registered letter with acknowledgment of receipt giving notice of the facts in question and the date of the force majeure incident.
17.2 - Partial invalidity
The invalidity of one clause does not invalidate the entirety of the Terms.
The fact that one party has not complied with a clause in these Terms, whether permanently or temporarily, will not be considered as a renunciation of said clause.
Where there is a conflict in interpretation between clause titles, they will be declared non-existent.
If a clause in these Terms becomes void as a result of a law or case law, it will be held to be void without affecting the validity of the remaining clauses.
17.3 - Independent Parties
The parties remain independent of each other. Nothing contained in the Terms create a partnership agreement, a mandate or a representation and there is no relationship of authority between the parties.
17.4 - Confidentiality
Oxatis and the Subscriber, and their respective employees, agree to regard as confidential, for the entire duration of the Subscription Agreement and one (1) year after its termination - for whatever reason - all documents, software, expertise, data and material and immaterial information, communicated by the other party to complete the execution of these Terms and not use it or allow it to be used outside the requirements of the Subscription Agreement.
This commitment endures while the Website is in Sleep Mode.
17.5 - Transfer of the Subscription Agreement
The Subscriber shall not transfer or assign, for free or for payment, in whole or in part, in any form whatsoever, the Subscription Agreement or benefit of the use of subscription or substitute a third party to perform its obligations, without the express prior consent of Oxatis.
For the purposes of proper implementation of its commitments, Oxatis reserves the right to assign, transfer or give to a third party, in any form, whether any or all rights and obligations hereunder or substitute a third party for the performance of all or part of the rights and obligations hereunder.
17.6 - Notification/Complaint
Unless otherwise stated, a Subscriber's or User's notification, claim and/or observation must be addressed to Oxatis and sent by registered letter to the following address:
171 bis chemin de la Madrague Ville
17.7 - Variation
No amendment or variation of the Subscription Agreement will be valid unless confirmed as agreed in writing by an authorised signatory of each Party.
17.8 - Applicable law and jurisdiction
These Terms and the Subscription Agreement are subject to French law, no matter where the Subscription Agreement is enacted from.
In case of dispute, and after an attempt to reach an amicable solution, the court having sole jurisdiction is that of Paris, France.