General Terms of Sale and Use
Version of / last updated on: 24 May 2023
These general terms apply between PraxySanté, a simplified joint-stock company with a capital of €20,000, whose registered office is located at 54B rue du Château 92250 La Garenne Colombes, registered with the Nanterre Trade and Companies Register under number 977 739 317, represented by Damien Forest as General Manager, (hereinafter referred to as "PraxySanté") and the client (hereinafter referred to as the "CLIENT"), who has subscribed to a licence and maintenance contract (hereinafter the "Contract"). PraxySanté and the CLIENT are together referred to as the "Parties".
PREAMBLE
PraxySanté has designed and developed a digital solution composed of different functional modules and processing health data, hereinafter referred to as the "Solution".
The Solution is intended to be integrated into the web solution and/or third-party application of each interested client in order to allow end-users to benefit from a comprehensive solution.
The CLIENT has received from PraxySanté all the information and advice necessary to understand the limitations and characteristics of the Solution.
It has been informed that:
· it is up to them to define their needs and to check if the characteristics and features of the Solution are adapted to them, taking into account the objectives they are pursuing, and the equipment and other software they use,
· they must have, either internally or through external service providers, the specific skills to use the Solution,
· the use of the Solution must be the subject of careful monitoring on their part, in particular through a manager and competent users who are aware of the specific conditions of use of the Solution and in particular the legal and technical conditions for processing personal health data,
· the implementation and use of the Solution are likely to result in a change in organisation and working methods, the exclusive charge and responsibility of which they assume.
The client acknowledges being a Healthcare Professional in order to use this service, and that, as indicated by the CNIL, they do not need to collect the consent of their patients in the context of medical consultations. Seehttps://www.cnil.fr/fr/cnil-direct/question/professionnels-de-sante-avec-le-rgpd-faut-il-recueillir-le-consentement-des
The Client has also been informed and accepts that the Solution is hosted by a certified health data host within the meaning of Article L 1111-8 CSP, a subcontractor of PraxySanté under the conditions described in the annex to the General Terms of Sale and Use.
After becoming aware of the purpose, features, and characteristics of PraxySanté's Solution, the CLIENT has assessed the opportunity to subscribe to a usage licence and benefit from maintenance services with regard to their own needs and those of their clients ("end-users"), and has decided to subscribe to the Contract consisting of these General Terms of Sale and Use (hereinafter the "GTC") and, where applicable, Special Conditions and annexes.
Pursuant to Article 1112-1 of the Civil Code, the CLIENT declares and guarantees that PraxySanté has fulfilled its legal information obligation towards them.
1. DEFINITIONS
The terms listed below shall have the following definitions for the Parties:
· Anomaly: refers to any defect or non-conformity of the Solution that can be reproduced independently of any misuse.
· Blocking Anomaly : a reproducible anomaly that makes it impossible to use one or more features of the Solution,
· Major Anomaly : a reproducible anomaly that allows the use of all the features of the Solution but in a degraded manner for one or more of them,
· Minor Anomaly : a reproducible anomaly that allows the operation of the Solution to continue but is disturbing in terms of user-friendly or optimal use of the feature in question or requires the implementation of unusual operating procedures.
· Source Code : means all the instructions and lines of programme of the Solution and to which access is necessary in order to modify the Solution.
· Configuration : means the set of computer equipment on which the Solution is implemented and operated. This Configuration will be set up by the CLIENT based on the recommendations of PRAXYSANTÉ and will be accessible to Users and End Users at the address agreed between the Parties.
· Console : means a communication platform accessible either on the internet or via a mobile application.
· Special Conditions : contractual terms of the Contract specific to the CLIENT.
· Activation Date : means the date on which an End User can register in the application and use the Solution.
· Documentation : means all the standard documents relating to the Solution produced by PRAXYSANTÉ on any medium of its choice and made available to the CLIENT.
· Contract Documents : means all the contractual documents governing the relationships between the Parties as mentioned in the "Contract Documents" article.
· Data : means the data resulting from the use of the Solution stored on the Servers. The data hosting services are subcontracted by PRAXYSANTÉ to a certified health data host within the meaning of Article L 1111-8 CSP under the conditions described in the annex to the GTC. The rate indicated in the Special Conditions or on the PRAXYSANTÉ website is valid for a maximum volume of Data hosted under the Contract. Any excess of this volume may be subject to additional invoicing at the expense of the CLIENT under the conditions defined in the Special Conditions or published on the PRAXYSANTÉ website.
· Minor Evolution : means any evolution of the Solution consisting of the provision of technical and/or functional evolutions of the existing Modules carried out at the initiative of PRAXYSANTÉ. The provision of Minor Evolutions is included in the price of the Contract.
· Major Evolution : means any evolution of the Solution consisting of the provision of one or more new Modules under financial conditions that will be communicated by PRAXYSANTÉ.
· Subscription Formula: means the subscription formula chosen by the CLIENT, which may specify in particular the list of Modules included in the user licence, the maximum volume of data, the prices agreed between the Parties, as described, where applicable, in the Special Conditions or on the PRAXYSANTÉ website.
· Confidential Information : means the information, documents, know-how, trade secrets, and methodologies, in particular of a technical nature (e.g.: source codes, drawings, etc.), commercial, marketing, economic and/or financial, communicated by each Party to the other Party in the context of the present Contract.
· Modules: means the different functional modules of the Solution designed, developed and published by PRAXYSANTÉ.
· New Version : means the new version of the Solution that may be provided by PRAXYSANTÉ in the context of the execution of the Contract. If the New Version only includes Minor Evolutions, its provision is included in the price of the Contract; if the New Version of the Solution includes Major Evolutions, it is provided under financial conditions that will be communicated by PRAXYSANTÉ.
· Maintenance Services: means the maintenance services provided by PRAXYSANTÉ as described in articles 12 and 13 of the present Contract.
· Regulation : means all the legal and regulatory texts applicable in France and in the European Union regarding the protection of Personal Data and in particular Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (hereinafter referred to as the "GDPR"), and Law No. 78-17 of 6 January 1978 modified relating to data processing, files and freedoms as it exists and will be modified during the term of the Contract (hereinafter referred to as the "Data Protection Act") (collectively referred to as the "Regulation")
· Server : means the computer equipment connected to the Internet hosting the Data. The hosting of the Servers is subcontracted by PRAXYSANTÉ to a certified health data host within the meaning of Article L 1111-8 CSP under the conditions described in the annex to the present Contract.
· Solution : refers to the solution developed by PRAXYSANTÉ, which includes modules of the SDK or API type and an internet or mobile console, for which PRAXYSANTÉ grants the CLIENT, who accepts it, a usage licence and maintenance services under the conditions set out in the Contract. The Solution includes Minor Evolutions, New Versions without Major Evolution that may be provided by PRAXYSANTÉ. The Solution comprises the modules and console listed in the Special Conditions and allows the CLIENT to access and use them under the conditions specified in the Contract.
· Users : refers to the CLIENT's personnel (e.g. employees, salaried workers, service providers, etc.) authorised to use the Solution under the conditions defined in the Contract and within the subscription formula.
· End Users: refers to users, clients of the CLIENT, as well as patients, employees, service providers or partners of the CLIENT's clients, who are authorised to use the Solution only when it is integrated into the CLIENT's solution or application.
2. CONTRACTUAL DOCUMENTS
The Contract consists of the following Contractual Documents, presented in order of decreasing legal value:
· The Special Conditions,
· These General Terms and Conditions of Sale and Use,
· Its annexes (not ranked among themselves)
In the event of a contradiction between one or more provisions contained in any of these documents, the higher-ranking document shall prevail.
The fact that a provision contained in a lower-ranking document is not expressly mentioned in the higher-ranking document does not deprive it of its legal value.
The execution of the Contract implies that the CLIENT has necessarily and unreservedly adhered to these General Terms and Conditions.
The CLIENT is deemed to have taken knowledge of the entirety of the Contract and to have duly accepted its terms, without reservation, upon signing it.
The Parties acknowledge that the acceptance of the Contract by electronic means has the same probative value as an agreement on paper.
PRAXYSANTÉ reserves the right to unilaterally modify these General Terms and Conditions and its annexes. These modifications shall be binding on the Client after they have been published in any manner whatsoever.
Any substantial modification of the General Terms and Conditions and/or its annexes shall be communicated to the CLIENT within thirty (30) calendar days prior to their entry into force. In the event of refusal of the new general terms and conditions, the CLIENT remains free to terminate the Contract under the conditions of Article 15.
3. OBJECT
These General Terms and Conditions have as their object to define the terms and conditions applicable to the personal and non-exclusive use licence of the Solution granted by PRAXYSANTÉ under the Contract.
4. ENTRY INTO FORCE - DURATION
The Contract enters into force on the date of its signature by the Parties.
It is concluded for an initial period of twelve (12) months (hereinafter the "Initial Period") from its signature by the Parties, unless otherwise specified in the Special Conditions.
At the end of this initial period and unless terminated by the CLIENT by sending a registered letter with acknowledgement of receipt or an electronic mail respecting a notice period of one (1) month, the Contract will be renewed by tacit renewal for successive periods of twelve (12) months (hereinafter the " Renewed Period "), the same termination and renewal conditions remaining applicable thereafter.
5. FINANCIAL CONDITIONS
1. Remuneration
The remuneration of PRAXYSANTÉ is defined within the Subscription Formula. It consists of a monthly fee including the provision of the Licence to use the Solution and the Maintenance Services. Failing this, the Tariff as published by PRAXYSANTÉ on its website will apply.
The basis for calculating the fee is based on the number of End Users and is specified in the Subscription Formula.
The CLIENT acknowledges and accepts that PRAXYSANTÉ has the number of Users and End Users within the framework of the Implementation of the Solution and that PraxySanté will therefore send the CLIENT an invoice, under the conditions below, relating to the fee calculated by PRAXYSANTÉ.
2. Invoicing terms and payment conditions
The monthly fee is invoiced in advance and payable within 30 days after the invoicing date, either by direct debit or by bank transfer, at the choice of PRAXYSANTÉ. The first invoice will cover the period from the Activation Date to the end of the month in question and will therefore be calculated pro rata temporis.
The prices are denominated in Euros and are exclusive of VAT. The prices are increased by VAT at the rate in force on the day of invoicing.
The prices are all-inclusive.
The invoices are sent to the email address provided by the CLIENT.
Any claim relating to an invoice must be sent to PRAXYSANTÉ by electronic registered mail, following the procedures described in Article 26, within a period of 15 (fifteen) days following its receipt, which is presumed to be made within a period of 3 (three) days following the date shown on the invoice. No claim will be accepted after this period.
3. Late payment interest
By express agreement and unless a deferral is granted by PRAXYSANTÉ, failure to pay on the due date will automatically and without prior notice result in the invoicing of interest equal to 3 times the legal interest rate, in addition to the application of a fixed indemnity of forty euros (40€) payable automatically and in accordance with the provisions of the Commercial Code.
4. Price revision
The price of the monthly fee may be revised each year at a minimum on the basis of the following formula :
R1 = R0 x S1/ S0
R1 = revised remuneration.
R0 = original remuneration.
S0 = last Syntec index published on the date of the previous revision or original index (date of signature of the Contract).
S1 = last Syntec index published on the date of the revision.
Notwithstanding the above, the Client acknowledges that PRAXYSANTÉ reserves the right to evolve any or all components of the price during the contractual relationship due to, in particular, changes in the functionality of the Solution or the scope of the usage licence.
In this event, the new pricing policy will be notified to the CLIENT by any means and will apply from the calendar month following notification. In the event of refusal of the new prices, the Client remains free to terminate their Contract under the conditions of article 15.
The applicable Rates are available on PRAXYSANTÉ's website
5. Late payment
In the event of late payment by the CLIENT for any reason and unless otherwise agreed by PRAXYSANTÉ, article 5.3 "Late payment interest" and the procedure below will be applied:
· Sending a formal notice to pay the unpaid invoice by AR-LR electronic means within a period of 8 (eight) working days, addressed by PRAXYSANTÉ to the CLIENT,
· In the event of non-payment by the CLIENT within the above-mentioned period, suspension by PRAXYSANTÉ of access to the Solution and the CLIENT's Console, notified by PRAXYSANTÉ by AR-LR electronic means addressed to the CLIENT,
· In the event of non-payment by the CLIENT within a new period of 8 (eight) working days from the notification of suspension, PRAXYSANTÉ may terminate the Contract, notified by AR-LR electronic means addressed to the CLIENT, without notice or compensation of any kind.
6. WARNING
Prior to the conclusion of the Contract, the CLIENT is informed that they must seek all necessary advice and ensure that the Solution meets their needs and the use they expect from it.
PRAXYSANTÉ assumes no responsibility for any error of choice, assessment by the CLIENT or inadequacy of the Solution to their needs and those of the Users and End Users.
The Solution must be used in accordance with its purpose, as described in the Contract Documents and Documentation.
It is the CLIENT's responsibility to ensure:
· the adequacy of the Solution to their needs and those of the Users and End Users,
· compliance with the technical recommendations required by PRAXYSANTÉ,
· that the Users and End Users have been informed of the risks of errors that may occur during the first uses of the Solution,
· that they have the necessary competence and qualified personnel for the use of the Solution,
· to make sufficient effort to train the Users in the specifics of the Solution and to explain the Solution to the End Users,
· that their own structures, in particular the Users, take into account the new conditions implied by the use of the Solution and, if necessary, take into account the necessary organisational measures so that the Users participate in its implementation and use with all the required involvement, collaboration and efficiency and that the End Users benefit from the Solution in accordance with its purpose, characteristics and in an optimal manner.
The CLIENT has been informed that :
· in the event of Incidents in the use of the Solution resulting in partial degradation of the Data and/or files, their reconstruction is an operation whose success is random, and that this operation can only be taken care of after a specific agreement subscribed to PRAXYSANTÉ following such an Incident,
· the use of the Solution does not dispense the CLIENT from keeping a copy of the Data on any medium of their choice, depending on their legal and regulatory obligations,
· PRAXYSANTÉ is not responsible for the conditions under which the Users and End Users use the Solution,
· PRAXYSANTÉ assumes no liability for misuse of the Solution.
7. SCOPE OF RIGHTS GRANTED
6. Scope of the Solution usage licence
PRAXYSANTÉ grants the CLIENT a usage licence consisting of a right to use the Solution in accordance with its purpose and the scope described in the Subscription Formula of the Special Conditions, on the CLIENT's Configuration.
The right to use the Solution for the CLIENT is limited to the integration of the Solution into its own solution or application, in order to market it to its customers and offer them a comprehensive solution.
As a result, this usage licence confers on the Users and End Users a right to use the Solution only when it is integrated into the CLIENT's own solution or application.
This right is understood to be a non-exclusive, personal, non-transferable and non-assignable right to use all the Modules of the Solution specified in the Subscription Formula, including Adaptations, minor Evolutions, New Versions excluding Major Evolutions.
This right includes Major Evolutions only if and when the Parties have concluded an amendment to this effect modifying the Subscription Formula mentioned in the Special Conditions.
This right is valid for the Configuration and reserved for the exclusive use of the CLIENT, to the exclusion of any other entity, third party, subsidiary or sister company or partner of the CLIENT.
This right is granted only for the duration of this Contract.
The CLIENT may not, either directly or indirectly, make the Solution available or grant rights to it to a third party, subsidiary, sister company or partner not party to the Contract, whether free of charge or for a fee, without the prior written agreement of PRAXYSANTÉ based on specific financial conditions.
By way of exception to the above, the CLIENT may proceed with the temporary making available of the Solution to the competent public authorities, insofar as this making available is essential to meet the CLIENT's legal obligations, and under the sole responsibility of the CLIENT.
The CLIENT, Users and End Users do not acquire any other rights to the Solution, intellectual property or otherwise, than those granted by the Contract.
The CLIENT undertakes to take all legal, contractual, logical or technical measures to make the terms of the Contract enforceable and to ensure that the Users and End Users comply with the limits of this licence.
This grant of rights does not entail the transfer of any intellectual property rights to the benefit of the CLIENT, PRAXYSANTÉ retaining full and complete ownership of the Modules, the Solution, its Adaptations, New Versions and Evolutions.
7. Recommendations regarding the Configuration
PRAXYSANTÉ recommends the technical and material architecture of the Configuration that must be implemented to operate the Solution.
8. Interoperability
In accordance with the provisions of Article L.122-6-1 of the Intellectual Property Code, the CLIENT has the right to obtain from PRAXYSANTÉ, at any time, the information necessary for the interoperability of the Solution with other applications or software created independently.
The information necessary for the interoperability of the Solution will be provided to the CLIENT upon request, which will be formulated to PRAXYSANTÉ in accordance with the communication modalities provided for in Article 26 by electronic AR.
The Parties agree that the information obtained by the CLIENT may not be:
· neither used for purposes other than achieving the interoperability of applications or software created independently,
· nor communicated to third parties unless necessary for the interoperability of applications or software created independently,
· nor used for the development, creation or marketing of software whose features and purpose are substantially similar to the Solution.
9. Right and ownership of the Solution
The intellectual property rights related to the Solution are the exclusive property of PRAXYSANTÉ.
The CLIENT undertakes not to infringe, directly or indirectly, or through third parties with which it is associated, the rights and ownership of PRAXYSANTÉ mentioned in the Solution.
8. ACCESS TO SOURCE CODES
The CLIENT will only be able to access the Source Codes of the Solution and use them if PRAXYSANTÉ is subject to judicial liquidation or dissolution or has ceased its activity for more than one (1) month without any successor taking over its obligations, or the judicial administrator deciding to continue the Contract.
9. QUIET ENJOYMENT GUARANTEE
PRAXYSANTÉ guarantees the CLIENT against any action for revendication brought by third parties on the grounds that all or part of the Solution constitutes an infringement of pre-existing intellectual property or industrial property rights claimed by third parties.
To this end, PRAXYSANTÉ will bear all damages and interests to which the CLIENT may be condemned or liable under a final court decision or a transaction concluded with the third party making the claim, provided that the CLIENT has informed PRAXYSANTÉ promptly of the existence of such a claim and that the CLIENT has allowed PRAXYSANTÉ to conduct the proceedings and/or negotiations with the author of the claim.
In the event of a claim as indicated above, PRAXYSANTÉ may, at its choice and expense:
· either modify all or part of the disputed element to avoid infringement,
· or obtain authorisation for the CLIENT to continue using it,
· or provide a replacement solution.
The preceding provisions set the limits of PRAXYSANTÉ's liability in terms of patent and copyright infringement due to the use of the Solution.
10. CONDITIONS FOR PROVIDING THE SOLUTION
10. General Quality of the Solution
The Solution is provided in compliance with the technical warranties referred to in the "Technical Warranty" article.
PRAXYSANTÉ will implement all necessary technical means to ensure the proper functioning of the Solution, allowing access and use 24/7, except in cases of force majeure or events beyond PRAXYSANTÉ's control and subject to any necessary maintenance operations for the proper functioning of the Solution.
PRAXYSANTÉ may interrupt the provision of the Solution, without incurring liability and without fault on its part, for scheduled maintenance purposes, subject to prior notification to the CLIENT by email or any other means of its choice.
Scheduled maintenance refers to maintenance operations performed as much as possible during periods of reduced use of the Solution.
PRAXYSANTÉ undertakes, in the event of unavailability of the Solution, outside scheduled maintenance operations, to restore it as soon as possible after detection of the unavailability.
Given the complexity of the Internet, the inequality of the capacities of the different sub-networks, the influx of users at certain times, and the various bottlenecks over which PRAXYSANTÉ has no control, PRAXYSANTÉ cannot be held responsible in any case for:
· the access speeds from the CLIENT's Configuration,
· external slowdowns,
· poor transmissions due to a failure or malfunction of these networks.
Considering the nature and complexity of the technologies implemented for the execution of the Contract, each Party:
· undertakes to exercise reasonable care in the execution of the Contract,
· acknowledges that the Solution cannot be exempt from Incidents, failures, interruptions, and unavailability.
In the event of Incidents resulting from elements under the responsibility of one of the Parties, the other Party undertakes to inform the former, which undertakes to make its best efforts to remedy the situation.
If necessary, the Parties will consult to decide jointly on the best solution to implement in the framework of an amendment, if this solution requires additional financial costs for PRAXYSANTÉ.
11. WARRANTY ON CLIENT DATA
PRAXYSANTÉ is in no way responsible for the quality and relevance of the Data used or created by the CLIENT through the Solution.
PRAXYSANTÉ only guarantees the provision, as is, on the Servers, of the Data used or created in the context of providing the Solution to the CLIENT.
PRAXYSANTÉ may make it impossible to access all or part of the Data, including by disconnecting access to the Servers, if it is informed, at its sole discretion, of their unlawful nature, or of facts or circumstances that may indicate such a nature, or if it is otherwise required to do so by applicable law or by any competent authority.
PRAXYSANTÉ will inform the CLIENT in advance of any decision to make access impossible under this article.
12. Technical warranty
PRAXYSANTÉ guarantees the conformity of the Solution to the technical and functional characteristics as detailed in the Subscription Formula and Documentation.
PRAXYSANTÉ undertakes to implement the necessary means to offer the best availability rate of the Solution outside scheduled maintenance interventions.
PRAXYSANTÉ cannot be held responsible for an Incident or unavailability resulting :
· from the occurrence of a case of force majeure,
· from the CLIENT's non-compliance with its commitments under the Contract,
· from the misuse of the Solution by the CLIENT, its Users and/or End Users,
· from the CLIENT's lack of response to PRAXYSANTÉ's requests,
· from the CLIENT's lack of cooperation in restoring the Solution,
· from a failure of the health data host used by PRAXYSANTÉ, beyond the provisions of common law,
· more generally, from any cause beyond PRAXYSANTÉ's reasonable control.
13. Suspension of the Solution
PRAXYSANTÉ may suspend all or part of the provision of the Solution in the event :
· of misuse of the Solution by a User or End User that may affect the operation of the Solution and/or the Servers,
· of a request or application from an administrative or judicial authority relating to the Data hosted as part of the provision of the Solution.
14. Reversibility
In the event of termination of the contractual relationship for any reason, PRAXYSANTÉ undertakes to return the Data to the CLIENT in a structured, commonly used and machine-readable format, in accordance with the conditions defined by the certified health data host designated by PRAXYSANTÉ, which the CLIENT accepts.
The CLIENT may, if necessary, benefit from PRAXYSANTÉ's assistance with reversibility on a quote basis.
Unless otherwise agreed by the Parties, the reversibility period is limited to one (1) month.
15. Evolution of the Solution
PRAXYSANTÉ reserves the right to freely evolve the Solution, particularly for legal or technological reasons, at its sole discretion, in order to create new features or improve existing ones. Any Minor Evolution of the Modules already subscribed to by the Client is binding on the Client without notice from the date of its production and/or communication by PRAXYSANTÉ.
PRAXYSANTÉ also reserves the right to modify the Subscription Formula to take into account the Major Evolutions of the Solution, at its sole discretion. In this case, PRAXYSANTÉ may modify the price in accordance with the "Price Revision" article. The Client may terminate the Contract following the modalities of article 15 if they refuse the modification of the Subscription Formula.
If the CLIENT wishes to modify the Subscription Formula or integrate new Modules corresponding to Major Evolutions into the Solution, the Parties will sign an amendment to the Contract that will modify the price of the Solution's royalty to take into account these changes and integrate the new Modules.
The CLIENT acknowledges that the conclusion of the Contract is not conditional on the provision of new features and/or new Modules in the future.
11. CLIENT OBLIGATIONS
The CLIENT is expressly required to respect the obligations listed below.
16. Use and security
The CLIENT retains responsibility for the security and proper functioning of the Solution within its own applications - web, mobile or other - and all tasks performed by its staff members and, in general, by any subcontractor, natural or legal person designated by the CLIENT to be involved in the execution of this Contract and the use of the Solution.
The obligations include, in particular:
- Compliance with the Solution's Configuration specifications;
- The CLIENT's personal non-intervention and the prohibition for any person, other than those authorised by PRAXYSANTÉ at the CLIENT's request, to intervene on the Solution;
- Compliance with the recommendations of the competent local authorities regarding security, such as the ANS, CNIL, and ANSSI in France;
- The use of a certified health data hosting provider, as defined in Article L 1111-8 CSP, for what concerns it.
17. Other obligations
The CLIENT declares that it is perfectly aware of the legal and regulatory constraints regarding health data, to which it is subject in the context of using the Solution within its own applications - web, mobile or other. To this end, the CLIENT guarantees that the specifications and characteristics of the Solution are compliant with the legal and regulatory requirements applicable to it as a data controller or processor, as defined in the Regulation, and that it has fulfilled all its obligations, particularly in relation to the Regulation, to enable the integration and use of the Solution by Users and End Users.
The CLIENT also declares that it is aware of the legal and regulatory provisions applicable to any software qualifying as a medical device within the meaning of Regulation 2017/745 of 5 April 2017 on medical devices, and that the conditions and purposes of using the Solution with its own applications - web, mobile or other - do not in any way qualify as a medical device software.
12. MAINTENANCE SERVICES
The Maintenance Services and service levels (hereinafter referred to as "SLA") are described in this article.
PRAXYSANTÉ is solely authorised to perform maintenance of the Solution and, in particular, to correct Anomalies in accordance with the provisions of Article L.122-6-1 of the Intellectual Property Code.
The Maintenance Services include corrective maintenance of the Solution and the provision of any New Version, excluding Major Evolutions as specified in Article 10.
The corrective Maintenance Services are intended to enable the resolution of Anomalies encountered by the CLIENT when using the Solution.
Each request for Anomaly resolution from the CLIENT:
· must be the subject of a report describing the Anomaly and the context of its appearance and be sent to PRAXYSANTÉ either by email or through the ticketing tool designated by PRAXYSANTÉ to the CLIENT,
· will be processed from the receipt of an Anomaly report in the ticketing tool or will be responded to by email, prioritised according to the type of Anomaly (blocking, major, minor).
The resolution of Anomalies may involve the delivery of a New Version by PRAXYSANTÉ.
18. Handling of intervention requests
The CLIENT reports Anomalies encountered by electronic messaging, following the modalities specified in Article 26, or on a ticketing tool that PRAXYSANTÉ will make available to the CLIENT.
Any intervention request made by telephone must be the subject of a confirmation by email or within the ticketing tool to be taken into account.
19. Qualification of Anomalies
The qualification of the type of Anomaly (blocking, major, minor) is carried out by PRAXYSANTÉ with the agreement of the CLIENT, based on the definitions present in the Contract, upon receipt of the Anomaly report.
In the event of a dispute by the CLIENT regarding the qualification of an Anomaly, the Parties agree to make their best efforts to agree on the most consistent qualification with those referred to in the Contract.
20. Anomaly processing
PRAXYSANTÉ proceeds with the processing of Anomalies reported by the CLIENT from the agreement of the CLIENT on the qualification of said Anomalies.
21. Modalities for integrating Anomaly corrections
When corrections cannot be applied directly by the CLIENT through a simple configuration action, PRAXYSANTÉ will deliver the corrections within the framework of New Versions.
Pending a definitive solution, PRAXYSANTÉ may recommend a temporary workaround solution as soon as possible, compatible with the nature of the difficulty or Anomaly.
22. Backup
It is the responsibility of the CLIENT to ensure the daily backup of all Data and computer programs making up its Configuration and to check the proper execution thereof, so as to be able to restore its computer system in the event of Incidents and allow PRAXYSANTÉ to intervene to perform the Maintenance Services provided for in the Contract.
This backup must be carried out as frequently and regularly as possible.
13. EXCLUSIONS FROM THE SCOPE OF MAINTENANCE SERVICES
The following are excluded from the scope of Maintenance Services, the resolution of Anomalies resulting from:
· third-party software or hardware that has not been integrated by PRAXYSANTÉ into the Solution,
· modifications to the Solution made by the CLIENT, a third party or an entity other than PRAXYSANTÉ,
· non-conforming use of the Solution by the CLIENT,
· lack of training for Users,
· lack of explanation given to end Users,
· defect in the integrity of the CLIENT's Data.
PRAXYSANTÉ will not be able to provide its Maintenance Services in the following cases:
· change to all or part of the Configuration on which the Solution is operated, making the Solution incompatible with the Configuration, unless agreed in advance by PRAXYSANTÉ,
· installation of the Solution on a new Configuration without PRAXYSANTÉ's agreement,
· failures or malfunctions affecting the Configuration on which the Solution is installed, or more generally the computer environment in which the Solution is operated (including power supply and telecommunications network),
· lack of reliable backup performed by the CLIENT in the last 24 hours.
PRAXYSANTÉ will charge for its interventions based on the time spent at the applicable rate, in the event of an intervention by PRAXYSANTÉ for:
· the exclusions mentioned above,
· assistance with project ownership,
PRAXYSANTÉ is in no case required to modify the Solution to compensate for the malfunctions or limitations of third-party software or hardware that have not been integrated by PRAXYSANTÉ into its Solution.
14. INTELLECTUAL PROPERTY
PRAXYSANTÉ remains the owner of the intellectual property rights related to the Modules and the Solution.
It is the same for trademarks, patents, names, acronyms, logos, colours, graphics, or other signs that could be used or implemented by PRAXYSANTÉ.
The CLIENT undertakes not to use or exploit PRAXYSANTÉ's intellectual property rights for purposes other than using the Modules and the Solution and/or on behalf of third parties without PRAXYSANTÉ's authorisation.
The CLIENT undertakes not to file any patent and/or take any measures of any kind for its own account or for the account of a third party, in connection with PRAXYSANTÉ's know-how and intellectual property rights.
Due to the substantial financial, material, and human investments made by PRAXYSANTÉ, and also due to the footprint and originality of the developments, particularly software, carried out by PRAXYSANTÉ for the design and development of the Solution, within the framework of the execution of the Contract and in general within the framework of its activities, the CLIENT acknowledges and accepts that PRAXYSANTÉ is and remains the sole holder of all intellectual property rights related to the Solution's models and algorithms, including within the framework of the use of the Data generated by the CLIENT when using the Solution.
To this end, during the entire term of the Contract and upon its expiry for any reason, PRAXYSANTÉ is free to use the Data within the framework of its activities, in particular to contribute to the research and development of the Solution, to improve its performance, models, and algorithms developed and trained by PRAXYSANTÉ within the framework of the Solution's modules or any other solution edited by PRAXYSANTÉ, without the CLIENT being able to claim any intellectual property rights related to its elements.
In general, the CLIENT acknowledges that it does not acquire any intellectual property rights to the Solution, its Modules, Adaptations, New Versions, and/or Evolutions, or the models and/or algorithms that compose it, other than the right to use granted within the framework of the usage licence defined in this Contract and for the sole and strict term of this Contract.
15. TERMINATION - CANCELLATION
23. Early termination
The termination of this Contract may be carried out by either Party by email, in accordance with the modalities described in Article 26, at the latest one (1) month before the expiry date of the Initial Period or the Renewed Period, which will result in the end of the contract at the end of the current period.
The CLIENT may request the early cancellation of the Contract in the event of a change in price or scope of the licence at the initiative of PRAXYSANTÉ. In this case, the Contract will end at the end of the current month.
The obligation of each Party to implement an attempt at conciliation under the conditions defined in Article 27 "Prior conciliation" is not applicable to this article.
24. Cancellation for default
In the event of a default by one of the Parties to its obligations under the Contract, which is not remedied within a period of thirty (30) calendar days from the sending of a registered letter or an email with acknowledgement of receipt notifying the default in question, the other Party may, by right, cancel the Contract in whole or in part, and after an attempt at conciliation under the conditions defined in Article 27 "Prior conciliation" of this Contract, without prejudice to any damages and interests to which the latter may be entitled.
25. Cancellation for special reasons
Furthermore, each Party may, by right, cancel the Contract in whole or in part, in advance, by sending an email, in accordance with the modalities described in Article 26, notifying the reason, without notice, and after an attempt at conciliation under the conditions defined in Article 27 "Prior conciliation" of this Contract, in the event of the existence of one of the following reasons:
· Serious risk to the reputation of one of the Parties;
· Proven legal or regulatory non-compliance by a final decision of a competent authority or jurisdiction;
PRAXYSANTÉ also has the option to cancel under the conditions of this article in the event of a change of control of the CLIENT within the meaning of the provisions of Article L 233-3 of the Commercial Code.
16. CONSEQUENCES OF THE END OF CONTRACTUAL RELATIONS
Upon the expiry of the Contract or in the event of its cancellation for any reason, the CLIENT will cease to use the Solution at the contractual expiry date or at the date fixed in the notification of the end of contractual relations, unless otherwise agreed by the Parties.
The CLIENT shall have a period of 2 (two) days to remove the Solution from the Configuration.
The CLIENT must, within the same period, confirm in writing to PRAXYSANTÉ that these deletions have been carried out.
The CLIENT shall take all necessary steps to inform its Users and End Users of the termination of the contractual relationship.
The entirety of the sums still owed to PRAXYSANTÉ by the CLIENT at the date of termination shall be immediately due.
Articles 1 "Definitions", 7 "Scope of granted rights", 14 "Intellectual property", 18 "Liability", 20 "Confidentiality", 21 "Personal data protection" and 28 "Law and jurisdiction" of the Contract shall survive beyond the date of termination of the contractual relationship between the Parties, for any reason whatsoever
17. FORCE MAJEURE
As soon as a force majeure event or unforeseen circumstance occurs, as defined in Article 1218 of the Civil Code, and within a period of eight (8) days from the occurrence, each Party undertakes to notify the other Party by electronic mail in order to consider the terms of continuation of the Contract.
Initially, cases of force majeure shall suspend the execution of this Contract.
If the cases of force majeure last for more than three (3) months, the Parties agree to come together to define the conditions under which they will proceed with the termination of this Contract.
None of the Parties may be held liable for any failure to perform its obligations under this Contract if it is due to a force majeure event.
18. LIABILITY
It is expressly agreed between the Parties that:
· PRAXYSANTÉ is subject to an obligation of means for the performance of its obligations,
· PRAXYSANTÉ shall be liable for all direct damages suffered by the CLIENT resulting from a contractual breach exclusively attributable to PRAXYSANTÉ,
· indirect damages and losses such as commercial harm, loss of orders, any commercial disruption, loss of profits, or damage to brand image, shall not give rise to compensation by PRAXYSANTÉ,
· any action brought against the CLIENT by Users, End Users or a third party in respect of services and/or performances offered by the CLIENT to third parties using the Solution, constitutes indirect harm and therefore does not give rise to compensation by PRAXYSANTÉ. Notwithstanding, in the event of an action brought against the CLIENT by a third party due to the use of the Solution, PRAXYSANTÉ's liability may be invoked under common law,
· PRAXYSANTÉ may not be held liable for any failure of the data host,
· PRAXYSANTÉ's liability is limited, in any event, in respect of the performance of the Contract, all losses combined, to the amount of the last annual fee for the Solution received by PRAXYSANTÉ.
Furthermore, in the performance of the Contract, the CLIENT shall be solely responsible:
· for the integration, implementation and use of the Solution in connection with and/or within its own applications - web, application or other,
· of the respect and compliance with the implementation and use of the Solution in connection with and/or within its own applications - web, application or other, under the Regulation and the Regulation 2017/745 of 5 April 2017 relating to medical devices,
· of any errors or malfunctions that may result from the Data it produces and/or uses and the Configuration elements implemented in the context of the use of the Solution,
· in general, of any consequence related to the conditions of use and operation of the Solution by the Users and by the End Users.
19. INSURANCE
The Parties acknowledge being insured for civil liability, operational and professional purposes in order to cover the financial consequences of material and non-material damages resulting or not, for which they would be responsible, caused by any event which would be notably the fault of their employees or potential subcontractors during the execution of the Contract.
20. CONFIDENTIALITY
Each Party undertakes not to use, disclose or communicate in any way the Confidential Information of the other Party to any natural or legal person during the entire term of the Contract and for a period of 10 (ten) years following its term.
To this end, each Party undertakes to protect the Confidential Information of the other Party with the same diligence as it accords to its own confidential information.
The Parties undertake to:
· prevent any disclosure of this Confidential Information outside their company except when necessary for one of the Parties to disclose it to its co-contractors in the context of the execution of the Contract,
· not to reproduce, or have reproduced, all or part of documents that may constitute or contain Confidential Information,
· to return to the other Party or destroy, upon expiration or termination of the Contract, all confidential documents of any nature that have been provided by the other Party,
· not to use the information for purposes other than the execution of the Contract.
The Parties agree that the provisions of this article shall not apply to information that:
· is or becomes known to the other Party through publication or by any other means than a breach of its obligations by the Party that received it, or
· results from developments undertaken independently by the Party that receives it, or on its behalf by persons who do not have access to the Confidential Information of the other Party, or
· is the subject of a general disclosure by the Party that communicates it without specific restrictions, or
· is the subject of a disclosure due to a court decision.
The Contract Documents are considered Confidential Information within the meaning of this article.
The Parties undertake to consider their methods and know-how as Confidential Information and to use them only for the strict needs related to the provision of the Solution. It is understood that each of the Parties remains the exclusive owner of the elements that make up its know-how.
Notwithstanding the foregoing, each of the Parties may refer to the existence of this Agreement as a commercial reference.
21. PERSONAL DATA PROTECTION
In the context of their contractual relationship, the Parties undertake to comply with the applicable regulations regarding the processing of personal data implemented in the performance of this Agreement.
The Parties agree that the provision of the Solution requires the processing of Personal Data, and more particularly Health Data.
In this regard, it is expressly stipulated between the Parties that the CLIENT remains the data controller or the representative of the data controller and retains full control over the Personal Data it collects and processes, PRAXYSANTÉ acting only as a subcontractor within the meaning of the legal provisions relating to the protection of personal data as defined in Article 1 "Definitions" of the General Terms and Conditions and referred to as the Regulations.
The provisions of the Data Protection Agreement define the conditions under which PRAXYSANTÉ, as a subcontractor, undertakes to perform on behalf of the CLIENT, as data controller or subcontractor of the data controller, the Personal Data processing activities in the performance of the Agreement.
In the context of the contractual relationship, PRAXYSANTÉ may also process the CLIENT's personal data as data controller. This concerns the management of the commercial relationship and the Agreement, invoicing, assistance for the use of the Solution.
PRAXYSANTÉ undertakes to keep the CLIENT's personal data collected for the duration strictly necessary to achieve the purpose of the processing, in accordance with the applicable laws.
The CLIENT's personal data collected and processed by PRAXYSANTÉ may be communicated to third parties, including PRAXYSANTÉ's subcontractors.
The individuals concerned by the processing benefit from various rights under personal data protection, which can be exercised by email sent to dpo@praxysante.fr.
The CLIENT may also consult the page concerning the confidentiality policy accessible on PRAXYSANTÉ's website.
22. ETHICS AND COMPLIANCE
Each Party declares, warrants and undertakes that, in connection with this Agreement:
- Neither it, nor its directors, employees, agents, subcontractors or any other third party acting on its behalf have committed or will commit any act of corruption towards any of the directors, employees, agents, subcontractors of the other Party or any other third party acting on behalf of the other Party; and
- It has implemented and will maintain adequate anti-corruption rules or policies and controls to prevent and detect acts of corruption within its organisation, whether committed by its directors, employees, agents, subcontractors or any other third party acting on its behalf.
To the extent permitted by applicable law, each Party undertakes to notify the other Party as soon as it is informed, or has reasonable grounds to suspect, that an activity carried out in connection with this Agreement contravenes or may contravene this article or any anti-corruption law or regulation as defined in the applicable Criminal Code in France.
23. NON-SOLICITATION OF PERSONNEL
Each of the Parties waives, unless with the prior written consent of the other Party, making direct or indirect job offers to an employee of the other Party, or hiring them, under any status, even if the initial solicitation is made by the employee.
This waiver remains valid for the entire duration of the Agreement and for a period of 24 (twenty-four) months from the termination or cancellation of the Agreement for any reason.
In the event that one of the Parties fails to comply with this undertaking, it undertakes to compensate the other Party by paying an indemnity equal to the gross remuneration (salary plus social security contributions) received by the poached employee during the 12 (twelve) months preceding their departure.
24. COMMERCIAL REFERENCE
PRAXYSANTÉ may cite the CLIENT's name or mention it as a commercial reference by any means, including in the context of commercial relations between PRAXYSANTÉ and its prospects or clients.
25. CONTRACT ASSIGNMENT
The Contract has been concluded in consideration of the CLIENT's person. Consequently, it is non-transferable without PRAXYSANTÉ's prior written consent.
26. MISCELLANEOUS PROVISIONS
Each Party undertakes not to make any commitment on behalf of or for the account of the other.
Each Party remains solely responsible for its actions, allegations, commitments, services, products, and personnel.
The headings are inserted for convenience only, and in the event of a difficulty in interpreting any of the headings at the beginning of the clauses and the content of any of the clauses, the headings shall be deemed non-existent.
It is specified that the Contract constitutes the entirety of the Parties' agreement regarding its purpose and prevails over any other general terms and conditions of purchase, sale, or service of either Party, or over any commitment, statement, or other prior agreement between the Parties having the same purpose.
If any provision of the Contract is found to be null and void under a rule of law in force or a final judicial decision, it shall be deemed unwritten, without affecting the validity of the other provisions of the Contract.
The fact that one or other of the Parties does not claim the application of any clause of the Contract or acquiesces to its non-performance, whether permanently or temporarily, shall not be interpreted as a waiver by that Party of the rights arising from the said clause.
Any communication related to the billing, application, or termination of the Contract must be addressed to the other Party using the email addresses communicated by the other Party when subscribing to the Solution usage licence. For PRAXYSANTÉ, the email addresses are as follows:
For PRAXYSANTÉ:
· For billing & contract: admin@praxysante.fr
· For maintenance: support@praxysante.fr
27. PRIOR CONCILIATION
In the event of a dispute arising between them regarding the interpretation or performance of the Contract, and excluding cases of non-compliance with payment deadlines, the Parties shall endeavour to find an amicable solution to their dispute as soon as possible.
To this end, as soon as one Party identifies a dispute with the other Party, it may request the convening of a meeting to discuss the settlement of the matter in dispute.
This summons will be carried out by all means. This meeting will be held within a maximum period of 15 (fifteen) days from the receipt of the request which will be addressed by electronic message .
If, within this period of 15 (fifteen) days, no solution is found, ratified by a written agreement signed by the representatives of the Parties or if the meeting has not taken place, the amicable procedure will be considered as terminated.
28. LAW AND JURISDICTION
The Contract is governed by French law.
FOR ANY DISPUTE ARISING BETWEEN THEM REGARDING THE INTERPRETATION OR EXECUTION OF THE CONTRACT AND AFTER AN ATTEMPT AT AMICABLE CONCILIATION, EXPRESS JURISDICTION IS ATTRIBUTED TO THE COMMERCIAL COURT OF PARIS NOTWITHSTANDING MULTIPLE DEFENDANTS OR THIRD-PARTY PROCEEDINGS, EVEN FOR EMERGENCY OR CONSERVATORY PROCEEDINGS, IN REFEREE OR ON APPLICATION.
ANNEX: Health data hosting service
In the context of this annex, PRAXYSANTÉ is referred to as the SUB-PROCESSOR.
1. PURPOSE OF THE ANNEX
This Annex aims to define the conditions under which the SUB-PROCESSOR undertakes to host, on behalf of the CLIENT, the personal data defined in the Contract.
This Agreement is drawn up in compliance, in particular, with the provisions of articles 28, 32 and chapter V of the GDPR.
In the context of their contractual relationships, the Parties undertake to respect the applicable Regulations regarding the processing of personal data.
2. ENTRY INTO FORCE AND DURATION
The Annex enters into force without reserve between the Parties as from the date of signature of the Contract, and is applicable for the duration of the Contract.
The obligations defined in the Annex which have a legal basis in the Regulations persist at the end of the duration of the Annex, until the statutory limitation of any action in liability that may be brought on the basis of the Regulations.
3. DESCRIPTION OF THE SERVICE
The CLIENT entrusts the SUB-PROCESSOR with the hosting of the data necessary for the provision of the operations on the personal data specified in the Contract.
The CLIENT accepts that the SUB-PROCESSOR may use a subsequent sub-processor as a certified health data host (the "Host").
4. FURTHER SUB-PROCESSING
The subsequent sub-processor(s) are required to comply with the obligations of the Contract, including the obligations on behalf of and according to the instructions of the CLIENT.
It is the responsibility of the SUB-PROCESSOR to ensure that the subsequent sub-processor(s) provide the same guarantees regarding the implementation of appropriate technical and organisational measures so that the hosting meets the requirements of the CSP and the Regulations. If the subsequent sub-processor(s) do not fulfil their obligations regarding data protection, the SUB-PROCESSOR remains fully responsible to the CLIENT and the Data Controller for the execution by the subsequent sub-processor(s) of their obligations.
The CLIENT hereby authorises the use of GOOGLE Ireland as a subsequent subcontractor for the provision of health data hosting services within the meaning of Article L 1111-8 CSP for the 6 levels of service.
The SUBCONTRACTOR may add or replace a subsequent subcontractor. In this case, it undertakes to inform the CLIENT by any means of its choice. The CLIENT will then have a period of ten (10) calendar days from the notification to raise objections on a valid grounds related to the protection of Personal Data. In the absence of objection from the CLIENT within this period, the subsequent subcontractor will be considered as accepted by the CLIENT, subject to the establishment of a subsequent subcontracting contract imposing confidentiality and security obligations at least equivalent to those agreed between the CLIENT and the SUBCONTRACTOR, before the transfer of Data to the subsequent subcontractor.
In the event that the CLIENT opposes the designation of a subsequent subcontractor under the conditions described above, each of the Parties may terminate the Contract with one (1) month's notice, following the modalities of Article 15 of the Contract.
The CLIENT acknowledges that by complying with its obligations under this article, PRAXYSANTÉ complies with its obligations under Article 28.2 of the GDPR.
5. TERMS AND CONDITIONS GOVERNING THE HOSTING SERVICE
The CLIENT accepts that the terms and conditions governing the hosting service are those of the hosting contract and its annexes signed between the SUBCONTRACTOR and the subsequent subcontractor. The general conditions of this hosting contract are available on the website of the subsequent subcontractor and a copy may be provided to the CLIENT if requested.
Any modification made to the hosting contract concluded between the SUBCONTRACTOR and the subsequent subcontractor will automatically amend the terms and conditions of the hosting service provided by the SUBCONTRACTOR to the CLIENT.
The SUBCONTRACTOR will notify the CLIENT of any amendment to the conditions governing the hosting services of which it is informed by the subsequent subcontractor.
6. SECURITY MEASURES
The SUBCONTRACTOR undertakes to implement adequate security measures for the protection of the Processing.
When the operations performed by the SUBCONTRACTOR on the data concern Data hosted by a certified/hosting provider of personal health data designated by the SUBCONTRACTOR in Article 4 of the annex, the CLIENT undertakes to strictly comply with the security measures defined by this hosting provider, including in particular access by strong authentication to the Data.