These Licence Terms and Conditions constitute the full contractual terms and conditions governing the licence (the 'Licence') binding, on the one hand, SEALD, a French société par actions simplifiée (simplified limited company) with capital of €5,615, having its registered office at 13 Rue Georges Bizet, 78380 Bougival, France (the 'Service Provider') and, on the other hand, the client (the 'Client'). The Service Provider and the Client shall be referred to hereinafter separately as a 'Party' and jointly as the 'Parties'.
« Additional Services » means services other than the right to use the Software that may be provided by the Service Provider in conjunction with the Software, including in particular configuration, training and integration services, etc.
« Administration Panel» means the Software tracking platform described in the Documentation made available to the Client when he acquires the paid version. Accordingly, this functionality is available with the paid version of the Software only.
« Documentation » means the user document referred to in Appendix 1, drawn up by the Service Provider to explain the operation of the Software and its functionalities.
« Error » means any Software malfunction or non-compliance with the Documentation that can be reproduced by the Client, which prevents the normal operation of all or part of the Software, or which causes an incorrect result or inadequate processing when the Software is used in compliance with the Documentation.
« Licence » means the licence granted to the Client by the Service Provider when it accepts the Licence Terms and Conditions.
« Licence Terms and Conditions » means this document and its appendices.
« Software » means all the object code programs and related Documentation developed by the Service Provider that are the subject of the Licence, which enable the Client to perform the operations described in the Documentation. The paid version of the Software includes the Administration Panel functionality.
« Specifications » means the features of the Software, as described in the Documentation.
« User » means, as appropriate, the Client or the Client's staff members authorised to use the Software within the framework of the Licence. Each User shall be identified by a personal and unique email address.
The purpose of these Licence Terms and Conditions is to define the general terms and conditions under which the Service Provider grants the Client a non-exclusive and non-transferable Licence to use the Software.
If the Client requests any Additional Services during performance of the Licence, it shall supply the Service Provider with a detailed written report setting out its needs. The Service Provider shall analyse the Client's request on the basis of this report with a view to preparing a written quote. The Service Provider will not provide the Additional Services until it has received the Client's prior, written acceptance. Acceptance shall be recorded in an order form and in special terms and conditions. The Service Provider will always be free to respond or to choose not to respond to any requests for Additional Services by the Client.
The Licence will enter into effect from the Client's acceptance of the Licence Terms and Conditions and will be entered into for one month or for one year, as the Client wishes. It will be tacitly renewed for an identical duration.
Either Party may give notice of termination of the Licence by registered letter with acknowledgement of receipt or by email, one month before the Licence anniversary date.
The Client may also give notice of termination of the Licence one month before the Licence anniversary date, by sending an email to the following email address: email@example.com.
Terms and conditions of use of the software
The terms and conditions of use of the Software will depend on whether the Client requires the free or the paid version of the Software.
In the case of the freeware, the Client must install the Software on its computer and provide the Service Provider with its personal email address; freeware versions are provided on a single-user basis only.
In the case of the paid licence, the Client may decide that the Software will be used by several Users, who must each install it on their computer after the Client has sent the Service Provider their personal email addresses. In that case, the Client will be able to access the Administration Panel via a password, to be communicated to the Service Provider; the Client shall be solely responsible for the continued confidentiality of its password.
The Client undertakes that the Users' email addresses will be used by the Users only, and for their own benefit only. It also undertakes to treat the password giving access to the Administration Panel that is accessible as part of the paid Licence as confidential and for its sole use.
The Client shall immediately report any suspected unauthorised use of any of the User email addresses or its password, as applicable, to the Service Provider at the following email address: firstname.lastname@example.org.
Any information recorded and stored by the Service Provider concerning actions carried out via the Administration Panel (such as modifying the number of Users, making a payment, etc.) may be used by the Service Provider for evidentiary purposes; this method of proof shall constitute a presumption that may only be validly challenged by producing evidence establishing that the Service Provider's recording and storage tools were faulty.
The Service Provider may need to upgrade the Software's functionalities in line with technological developments or market demand, in particular by adding or removing one or more features.
Any functional upgrades falling within the initial scope shall not result in any additional charge.
In the event essential features of the Software are removed or modified, the Service Provider shall inform the Client at least one month before they are removed or modified. In that case, the Client may terminate the Licence by sending an email to the following address: email@example.com. If the Client fails to terminate the Licence before they are effectively removed or modified, it shall be deemed to have accepted the corresponding removal or modification.
The Service Provider grants the Client a licence to use the Administration Panel for its own purposes only, and a user licence for its Users to use the Software in the course of their professional duties; these licences are granted on a non-exclusive, non-assignable and non-transferable basis for the entire term of the Agreement.
The term user licence shall be understood to mean the right for the Client to reproduce the Software, on a permanent or temporary basis, throughout the term of the Agreement, solely for the purpose of its download, display, running, transmission or storage, and solely for those Users whose names have been disclosed to the Service Provider.
In view thereof, without prejudice to the statutory rights recognised in the applicable legislation, the Client undertakes not to:
- transfer, sub-licence or grant access to the Software, or otherwise make it available to any third party in any way whatsoever, including to any company within its group, and including within the framework of IT management services or office services, even on a temporary and/or no-charge basis, unless it has obtained the Service Provider's prior, express authorisation;
- copy (with the exception of a backup copy, unless this has been supplied by the Service Provider), modify, disassemble, decompile, change in any way whatsoever, adapt, fix, translate into any language whatsoever, transcribe, arrange or make any other type of transformation to all or part of the Software; merge or even partially merge the Software with other programs;
- remove, conceal or change in any way whatsoever any trademark, distinctive sign or information about copyright or any other rights affixed to the Software or any other item delivered by the Service Provider;
- modify or seek to circumvent any of the Software's protections.
The Client undertakes to inform the Software Users of the limitations placed on the use of the Software under the licence granted hereby, and guarantees that its Users will comply herewith.
The Software shall in all circumstances remain the sole property of the Service Provider, who is the sole owner thereof and/or holds all the necessary rights to market and authorise the use thereof.
Accordingly, the Client may not pledge, assign, sub-licence, lend or allow access to it, whether for valuable consideration or free of charge. Moreover, the Client undertakes to inform the Service Provider of any infringement of the Service Provider's intellectual property rights of which it becomes aware.
The Service Provider warrants that the Software does not infringe any intellectual property rights or other property rights of third parties.
In the event the Software is, or becomes, in the Service Provider's opinion, the subject of a claim by a third party, the Service Provider may decide, as it sees fit:
- to arrange for the Client to be allowed to continue to use it, or
- to modify it so that it no longer infringes any rights, or
- to replace it by suitable software that is functionally equivalent, compatible and does not infringe any rights.
The Service Provider warrants to the Client that the Software's functionalities comply with the Specifications described in the Documentation included as Appendix 1.
Throughout the term of the Licence, the Service Provider undertakes to use its best efforts to offer the Client all corresponding updates necessary to ensure a level of security that is consistent with industry standards. To that effect, the Client undertakes to report to the Service Provider any problems it may encounter or observe when using the Software.
The Service Provider does not provide any warranty concerning the suitability of the Software for the Client's specific needs, or its compatibility with any computer program run alongside it. As such, the Client shall be responsible for assessing its specific needs, evaluating the suitability of the Software in view of those needs, and ensuring that it has the necessary skills to use the Software and a compatible computer environment, as described in Appendix 2. By accepting the Licence Terms and Conditions, the Client acknowledges that it has received all necessary information in this connection.
As the Software comprises cutting-edge technology, it is not possible in the current state of computer science to test and verify all the possible uses and to warrant that it is free from all Errors. In view thereof, the Client may, if it considers it appropriate, put in place suitable plans in the event of a failure or suitable measures to minimise any harmful consequences of, for example, the loss of data generated by the Software as a result of its use.
The amount of the Licence fee will be defined in a quote provided by the Service Provider.
Payments shall be made by direct debit from the Client's bank account, or by bank transfer to the bank account indicated in Appendix 1 (information provided when the Licence is acquired) at the start of each contractual period.
In the event the Client increases the number of Users during the contractual period, the Service Provider shall issue the Client with an invoice for the price supplement, calculated pro rata the remaining number of days in that contractual period. The supplement shall be invoiced at the time the number of Users is increased.
In the event the Client reduces the number of Users during a contractual period, the resulting price reduction shall only apply with effect from the next contractual period. Accordingly, the Client shall continue to pay the amount initially owed until expiry of the current contractual period.
In the event of a late payment, including when this is due to insufficient funds in the bank account or when the Service Provider has not been informed of a change of bank account or bank card, the Client shall be charged late payment penalties, without any payment reminder being sent, corresponding to three times the legal interest rate, calculated on a monthly basis, plus a flat charge of €40 as compensation to cover collection costs, in compliance with Articles L441-6 and D.441-5 of the French Commercial Code (Code de commerce). Additional compensation may also be claimed when the collection costs incurred exceed the amount of the flat charge, upon production of supporting documents.
Non-payment or partial non-payment of any amount that has fallen due will also entitle the Service Provider to suspend performance of all the Services subscribed, after expiry of a thirty-day period from that date and until full payment of all amounts owed, notwithstanding the right to claim compensation for harm suffered. The Client shall always bear all consequences of any such suspension.
Prices will always be stated exclusive of taxes levied in France or elsewhere. The Service Provider's invoices shall be prepared in compliance with the applicable tax and social security rules and, when these change, any resulting price variations shall enter into effect from the date on which the change enters into force.
For the purposes of this article:
« Personal Data » means any information relating to an identified or identifiable Person. An identifiable Person is one who can be identified, directly or indirectly, in particular by reference to an identifier or to one or more factors specific to their identity.
« EEA » means the European Economic Area, which includes as at the date of the Licence the European Union, Norway, Iceland and Liechtenstein.
« Guarantees » means appropriate guarantees to protect the security and confidentiality of Personal Data Transferred outside the EEA, to a country whose legislation has not been recognised as adequate by the European authorities, in accordance with the conditions laid down in the Privacy Law.
« Privacy Law » means the regulations that apply to the Client concerning use of Personal Data, including in particular the French Data Protection Act no. 78-17 of 6 January 1978 (loi relative à l'informatique, aux fichiers et aux libertés), and all regulations that supplement or replace said Act, including in particular Regulation 2016/679 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.
« Person » means any natural person (client, employee, service provider, supplier, etc.) whose Personal Data may be Processed within the framework of the Licence.
« Data Controller » means the Party who determines, alone or in conjunction with another Data Controller, the purposes of Processing and the means implemented; it may entrust all or part of the Processing to one or more Data Processors.
« Data Processor » means any natural person or legal entity who Processes Personal Data on behalf of a Data Controller.
« Processing » or to « Process » means any operation or set of operations which is performed on Personal Data, whether or not by automated means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
« Transfer » (used as a noun or a verb) means transferring Personal Data or granting access to them, including merely by making them available, from an EEA country to a country located outside the EEA.
Clause applying to a Client holding a Licence for personal use
When the Client acquires the Licence for strictly personal or home use, the Service Provider shall act as the Data Controller. The Client is informed that it can find the latest updated information on how the Service Provider uses its personal data at: « Data Protection policy ».
Clause applying to a Client holding a Licence for business use
When the Client acquires the Licence within the framework of its business activities, it shall act as the Data Controller and the Service Provider shall act as Data Processor.
In that capacity, the Service Provider may access the Personal Data within the framework and in accordance with the terms and conditions set out below, throughout the term of the Licence and until expiry of those time periods determined by the Client.
Purpose of processing by the Data Processor Supply of a document encryption system Purposes of the Processing by the - Encryption of documents\ Service Provider - Verification of geographic area from which the content of the encrypted messages is accessed, to combat fraud Categories of Personal Data - Email addresses\ Processed by the Service Provider - Display names (e.g. first name or pseudonym)\ - IP addresses\ - Personal data that may be included in the meta data associated with emails and encrypted documents\ - Connection logs Categories of Persons - Issuers of emails & protected documents\ - Recipients of emails & protected documents\ - Where appropriate, Persons whose data is included in the meta data associated with emails and encrypted documents\ - Where appropriate, the Administration Panel administrator
In that context, the Service Provider acknowledges that it holds no rights to the Personal Data it Processes on behalf of the Client.
The Service Provider undertakes, for so long as it has access to the above-mentioned Personal Data, to comply with the Client's written instructions concerning any use of the Personal Data. The said instructions shall be documented within the framework of this Agreement.
The Service Provider shall inform the Client immediately if, in its opinion, any of its instructions might constitute a breach of the Privacy Law.
Moreover, if it is required to carry out Processing in compliance with the laws of the European Union or the laws of any other European countries that apply to it, it must inform the Client of this legal obligation prior to Processing, unless the relevant laws prohibit the disclosure of such information for important reasons of public interest.
The Service Provider undertakes:
to implement appropriate technical and organisational measures in order to protect the Personal Data against any risk of destruction, loss, change or disclosure of, or unauthorised access to, the Personal Data, and to also ensure their availability and integrity;
to take all security measures in order to comply with the Privacy Law, including in particular, at the end of the Licence, either to destroy all files containing Personal Data or to return any medium containing such Personal Data and to keep no copies or originals, as the Client wishes;
in the event of a security failure that may result in a breach of Personal Data, to promptly inform the Client as soon as it becomes aware thereof;
to allow the Client to organise any audit of its information systems and procedures, at its expense, provided (i) it complies with a notice period of fifteen calendar days, (ii) it does not unreasonably disrupt the Service Provider's operational activities, (iii) it only appoints auditors who are bound by a confidentiality obligation, and guarantees their compliance therewith, and (iv) if the Client appoints an auditor who is not a staff member, it only appoints auditors who do not work for any of the Service Provider's competitors.
The Service Provider undertakes to assist the Client in any way necessary to enable him to comply with its obligations under the Privacy Law, and more specifically to allow him to perform any analyses or other consultations necessary, and to enable him to meet its obligation to respond to queries from Persons who contact him wishing to exercise their rights to their Personal Data.
The Service Provider shall make all proof of its compliance with its obligations under the Privacy Law available to the Client and produce it on first request.
The Service Provider undertakes that its staff members will be bound by a confidentiality obligation, and that it will ensure they comply therewith.
The Service Provider may entrust the performance of certain services under the Licence to the Data Processors listed below, provided it first ascertains by means of a contractual document that the Data Processors offer guarantees protecting security and are bound by obligations that are at least as restrictive as those that apply under the Licence.
Name of the Data Processor appointed by the Service Provider Applicable Guarantees in the event of a Transfer OVH Not applicable (hosted within the European Union) Online SAS Not applicable (hosted within the European Union) Postmark Registered with the US Privacy Shield Backblaze Registered with the US Privacy Shield Stripe Registered with the US Privacy Shield Hubspot Registered with the US Privacy Shield
The Client warrants that it has taken all necessary precautions to comply with the Privacy Law, namely by supplying all information required pursuant to the Privacy Law to the Users, employees and their representatives. In that connection, the Client warrants to the Service Provider that the Client's use of the Software and the performance of the Licence by the Parties will not constitute a breach of the Privacy Law under any circumstances.
By way of an exception to the foregoing, the Client acknowledges that the Service Provider is authorised to carry out certain limited Processing in its capacity as Data Controller, for the purposes of analysing and improving the Software and its services. The Client undertakes to inform its Users of this on behalf of the Service Provider, and to supply them with the information on such usage to be found at: « Data Protection policy ».
Neither Party shall be liable towards the other Party for the non-performance or delayed performance of their obligations under the Licence when this is due to the occurrence of a force majeure event resulting from any unavoidable and unforeseeable event or circumstances beyond their control.
Force majeure events shall be understood to mean those events defined as such in the case law of the Court of Cassation, and any change to the regulations or any court order or administrative decision that prevents the Service Provider from operating its business.
Throughout the term of the Licence, any force majeure event, as defined above, shall suspend the obligations under the Licence for such time as the event or circumstances persist(s).
The Service Provider will not be liable under any circumstances for any indirect or unforeseeable loss resulting from the Client's use of the Software. The Parties expressly agree that indirect loss shall be understood to mean any financial loss, business loss, lost profits, lost data, lost orders or lost customers, and any legal action taken against the Client by a third party.
In the event the Service Provider's liability is incurred under the Licence, the right to compensation for any direct loss suffered by the Client shall be limited, for all causes and losses combined:
in the case of an annual subscription:
per contractual year, to 50% of the amount paid to the Service Provider by the Client for the year in which the loss occurs;
in the case of a monthly subscription:
to three times the amount of the monthly fee paid by the Client (where the reference monthly fee is the fee paid in the month in which the loss occurred); capped at six times the amount of the monthly fee paid by the Client for each calendar year.
The Service Provider may carry out, at its expense, or arrange for any service provider of its choice, which must not be a competitor of the Client and must be bound by professional secrecy, to carry out, once a year throughout the term of the Licence, an audit on the Client's premises, on condition that the sole purpose of the audit assignment is to verify the Client's compliance with the terms and conditions of this Licence.
The Service Provider undertakes to give the Client at least fourteen days' written notice of any audit assignment, stating the purpose and the expected length of the assignment and the names of the auditors attending.
In the event of any serious breach by either Party of any of their obligations under the Licence Terms and Conditions, the other Party may terminate this Agreement as of right (de plein droit), thirty days after a formal demand to comply has been sent by registered letter with acknowledgement of receipt when this remains without effect, or immediately in the event of an irremediable breach or a repeated breach despite a previous formal demand to comply, notwithstanding the right to claim compensation for harm suffered.
In the event the Licence is terminated, for any reason, all amounts already paid to the Service Provider shall be retained by it.
Right of withdrawal (applicable only if the Client is a consumer)
When the Client is a consumer within the meaning of the introductory article of the French Consumer Code (Code de consommation), it may in principle exercise the right of withdrawal offered in Article L.221-18 of the Consumer Code.
Nevertheless, in accordance with Article L.221-18 of that Code, the right of withdrawal does not apply to the supply of digital content that is not supplied on a physical medium, when use has begun after the consumer's prior and express consent and express waiver of its right of withdrawal.
By accepting the Licence Terms and Conditions, the Client acknowledges and accepts that the Software will be ready for use immediately upon subscription. it accordingly expressly waives its right of withdrawal.
Under the Licence, each Party undertakes to comply with a general obligation of confidentiality concerning information obtained from the other Party.
Each Party undertakes not to disclose to any person whomsoever, directly or indirectly, all or any part of the confidential information, which is expressly defined by the Parties as any business, nominative, financial or organisational information concerning a Party, that has been disclosed by the other Party (the 'Confidential Information').
This undertaking shall apply throughout the term of the Licence, and for a further five years after expiry or termination of the Licence.
This confidentiality undertaking does not apply:
when, following a request by one Party, the other Party authorises in writing the use or disclosure of the Confidential Information;
when the Confidential Information falls in the public domain, provided this is not attributable to the actions of the other Party;
when a Party can establish that the Confidential Information was in its possession prior to performance of the Licence.
Transfer and outsourcing
The Licence is entered into on the basis of the identity of the Parties (intuitu personae). The Client may not assign or transfer it to any third party whomsoever, including to any entity controlled by or controlling the Client, within the meaning of Article L.233-3 of the French Commercial Code.
The Client undertakes to immediately inform the Service Provider by recorded delivery letter (signed for) of any change to the composition or ownership of its capital that results in a change of control, within the meaning of Article L.233-3 of the Commercial Code. In that case, the Service Provider may terminate the Licence as of right (de plein droit) of law within one month of the said notification, by sending a registered letter with acknowledgement of receipt.
The Service Provider may freely transfer the Licence provided the transferee is an entity controlled by or controlling the Service Provider, within the meaning of Article L.233-3 of the Commercial Code. In that case, the Service Provider undertakes to give the Client prior written notice of the transfer. The Service Provider shall be validly released in the event of the transfer of the Licence in accordance with this paragraph.
The Service Provider may outsource any of its obligations to a third party, provided it gives the Client advance notice thereof. In that case, the Service Provider shall remain liable for all the outsourced services.
Each Party authorises the other Party to use its name and logo as a reference in any written, oral or visual communication and on any medium, subject to prior authorisation, which may not be withheld without good reason.
Amendments - Entire agreement - Severability
The Service Provider reserves the right to unilaterally amend the Licence Terms and Conditions. In that case, the Service Provider shall inform the Client in writing or by email, no later than one month before the date on which the amendment enters into effect, unless the amendment results from regulations that enter into force immediately.
The Client may refuse proposed amendments, in which case it must give the Service Provider notice of its refusal and of the termination hereof by registered letter with acknowledgement of receipt, before the date on which the proposed amendments will enter into effect, at the address indicated below. Refusal shall result in termination of the Licence, at no cost, and in the reimbursement of the subscription fee on a pro rata basis.
In the absence of any written objection sent to the Service Provider by the Client by registered letter with acknowledgement of receipt within the said one-month period, the Client shall be deemed to have accepted the amendments.
The relationship between the Parties after their entry into effect shall then be governed by the new version of the Licence Terms and Conditions.
It is therefore essential that the Client regularly consult its emails and read the Licence Terms and Conditions available online here.
The Licence, the terms and conditions of which are set out in the Licence Terms and Conditions, constitutes a record of all the undertakings existing between the Parties, and replaces and supersedes any earlier oral or written undertakings concerning its subject matter.
In the event any of the clauses of the Licence Terms and Conditions are found to be invalid or inapplicable, this will not affect the validity of the other clauses, which shall retain their full force and scope.
Address for service
For the performance hereof, the Parties respectively elect as their address for service the address of their registered office or the address stated at the beginning of this document.
Any change to the registered office or the address of either Party shall only be binding on the other Party eight days after it has received due notice thereof.
Governing law — Disputes
The Licence Terms and Conditions are governed by French law, to the exclusion of the law of any other forum.
The courts of Paris shall have exclusive jurisdiction to hear any dispute arising between the Parties in connection with the Licence Terms and Conditions and concerning the existence, validity, interpretation, performance or termination of the Licence, unless the Client is a consumer within the meaning of the introductory article of the Consumer Code.
Appendix 1: Documentation
The reference documentation is available here.
Annexe 2: Configuration technique
The technical configuration requirements are available for the :