The ALMA company, a company organized and existing under the laws of France, registered with RCS Grenoble under number B 317 495 646, with its principal office located at 15, rue Georges Pérec, Z.I. des Glairons, 38400 St Martin d’Hères, France, (hereinafter referred to as “ALMA”) provides an online production optimization service called “Nest&Cut”.
The following Terms and Conditions apply to any use by the Client of the Services.
1. Definitions
Defined terms used in this Contract shall have the meanings set forth below:
Client: the legal entity having approved the following Terms and Conditions, in order to access and use the Service.
Client Contact: Natural person entitled to approve these Terms and Conditions, on behalf of the Client, and who shall be ALMA’s main interlocutor for the purpose of the Contract.
Contract: the contract is formed by (i) the Package chosen by the Client on the Website, based on ALMA’s Price List and, if any, technical specifications of the Service, and (ii) these General Terms and Conditions. In case of discrepancy, the provisions of the Package shall prevail over the General Terms and Conditions.
Corrective Maintenance: Error fixing.
Error: any malfunction in the performance of the Services, not caused by or imputable to or related to its improper use or its use in conjunction with any other computer software program.
On Going Maintenance: updates and upgrades of the Software and the Service.
Package: monthly or annual Service subscription, selected by the Client on the Website.
Request: order for implementation of Services, containing data provided by the User, and sent to ALMA by the Client.
Results: any technical file, data, resulting from performance of the Services, following a Request from the Client, and available to the Client for downloading on the Client’s personal account on ALMA’s Website.
Services or Service: “Nest&Cut” online application resulting from the implementation of the Software, hosted and accessible to the Client via Internet; including Maintenance and Support Services.
Software: a computing software component importing DXF files, performing the automatic nesting of the imported shapes (according to user-specified parameters) and computing an output DXF.
Storage Time: maximum period during which the Client’s Data is stored on ALMA’s Website.
Support Services: assistance services to the Client, including Corrective Maintenance, On-Going Maintenance and User Assistance.
User: Natural person acting under the authority of the Client, and duly authorized to use the Services, under the terms and conditions provided by the Contract.
User Assistance: on-going assistance services for Users, in their use of the Services, provided by ALMA by email or any other appropriate form ALMA may find relevant.
Website: ALMA’s dedicated website, on which Services are provided, accessible at https://nestandcut.com , or at any other domain name owned and operated by ALMA.
2. Purpose
The purpose of these General Terms and Conditions is to define the technical and financial conditions under which ALMA provides Services to the Client, for its own needs.
3. Registration
In order to use the Services, the Client must register for an account on the Website, providing an email address and a password, necessary to use and access the Services.
The Client Contact hereby represents and warrants that (i) he has all legal authority to enter into the Contract and approve these Terms and Conditions; (ii) all information submitted is truthful and accurate and that (iii) he will maintain the accuracy of such information and update it in their account, as the case may be, and if needed.
The Client will be invited to follow a link provided in a validation email sent by ALMA in order to proceed with the registration.
ALMA reserves the right to reject any registration by a Client, in particular, but not limited to:
In case of previous payment issue or litigation with the Client,
If providing Services to the Client would lead ALMA to be in breach of its contractual obligations with any third party, including breaches of non-competition clauses with ALMA distributors.
To complete its registration, the Client will be asked to provide the name of the company. The Client shall be given access to a personal account on which its Results and Requests shall be stored, as well as any contact information.
The Client’s credentials are confidential and shall not be shared or disclosed to a third party. The Client may modify them in their account.
ALMA shall not be liable to the Client or to a third party for any direct, indirect or consequential damages arising out a fraudulent access to the Client account or a disclosure of the Client’s credentials.
4. Acceptance
4.1 Clicking on the button « I have read and accepted the General Terms and Conditions” before registering as a Client constitutes full and unreserved acceptance by the Client of these General Terms and Conditions.
4.2 These General Terms and Conditions shall prevail over any other document or particular condition specified by the Client, unless otherwise agreed in writing by both Parties.
4.3 These General Terms and Conditions may be updated or modified at any time by ALMA. ALMA shall inform the Client of any amendment of these General Terms and Conditions, by email, with a 30-days-notice. Unless the Client has terminated the Contract within the 30-day period, by email or by closing its account, it will be deemed to have accepted the amended version of the General Terms and Conditions, which will apply to any further use of the Service.
5. Description of Services
Services shall include access to the Software, and enabling Users to make an optimized nesting layout for optimized quotation or production according to package access.
A full description of Services is available on the Website.
The Client declares having fully read and acknowledged this documentation, and that the Services functionalities comply with its needs. The first use of the Services by the Client implies full acceptance and acknowledgment of the Services compliance with the specifications set forth in the documentation.
The Services are subject to evolutions, updates and upgrades by ALMA, in order to improve their performance or to modify functionalities. Such upgrades or updates shall be available to the Client under the conditions set forth in the “Support and Maintenance” Section.
6. Supply Conditions of Services
The Services are accessible through an Internet access, without any installation on the Client’s system or the User’s computers. The Services are hosted on ALMA’s or its subcontractor’s servers.
In order to use the Services, the Client shall comply with the following process:
- The Client shall send its Request by uploading to the Service the DXF files and all parameters of the nesting order, specifying the computing time requested,
- The Service shall acknowledge without delay this Request to the Client, The Service shall deliver the Results to the Client within the computing time asked for by the Client, by making them available on the Website,
- The Client shall retrieve the Results within the Retrieving Time set forth in the “Ownership of Results-Data Storage” Section.
Should the Client not comply with the process above, they shall not be able to use the Services, and ALMA shall not be liable for any delay, non-complying Result, or deletion of Result from the Website.
The Client will be responsible for the security of the access to the Services through its employees’ personal computers. The Client undertakes to reserve the access to the Services to its duly authorized employees, qualifying as Users.
The use of the Services requires access to the Internet. This access is not included in the Services and shall be provided by an operator selected by the Client. The Client will deal personally, and at its own costs, with the implementation, maintenance and interconnection of the various components of the configuration and the means of telecommunications necessary to have access to the Services.
7. Duration – Renewal
The Contract shall enter into force at the date of confirmation, by ALMA, of the Client registration and account opening (“Effective Date”).
The Client subscribes to the Services for an initial term of one month from the Effective Date. The Contract shall then renew automatically for additional one (1) month period unless written notice is given by registered letter with acknowledgment of receipt by one Party to the other, or by email, as to its intention not to renew the Contract at least 24 hours prior to the end of the initial or any subsequent term.
For Clients having subscribed to an annual offer, Services are subscribed for an initial term of one year from the Effective Date. The Contract shall then renew automatically for additional one (1) year period unless written notice is given by registered letter with acknowledgment of receipt by one Party to the other, or by email, as to its intention not to renew the Contract at least 3 months prior to the end of the initial or any subsequent term.
In any case, termination will be effective at the end of the contractual term. Any started period (whether monthly or annual) shall be due, regardless of the date of termination, and no refund shall be made by ALMA.
8. Termination
If either Party defaults on any provision of this Contract, the other Party may terminate this Contract if the defaulting Party fails to remedy this failure within thirty (30) days from the prior written notice given by registered letter with acknowledgment of receipt by the non-defaulting Party without prejudice to compensation the non-defaulting Party may claim.
Termination or expiry of this Contract will not entitle the Client to any compensation whatsoever.
The provisions of Sections 14, 15, 16 and 25 shall continue after the termination of this Contract.
9. Rights granted
ALMA grants to the Client a non-exclusive, non-transferable, access to:
- use the Services, for the Client’s own needs,
- use the Services, in order to provide services to third parties.
The Client is not licensed to adapt, modify, or to change in anyway the Services, without ALMA’s prior written consent. In particular, the Client is not granted any access to the source code of the Software, and any adaptation of the Services shall be made solely by ALMA.
The Client may not integrate the Services into its own software or solution without ALMA’s prior written consent.
10. Client’s Obligations
The Client shall not access, store, distribute or transmit any viruses, or any material during the course of its use of the Services that:
- is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- facilitates illegal activity;
- depicts sexually explicit content;
- promotes unlawful violence;
- is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or any other illegal activity;
- causes damage or injury to any person or property;
- violates any third party’s intellectual property rights, such as copyrights, trademarks, designs, or patents
ALMA reserves the right, without notice nor liability to the Client, to disable the Client’s access to the Services in case of breach of the provisions of this clause.
11. ALMA’s Obligations
During the Contract, and subject to payment of the Service fees provided for in Section “Prices”, ALMA shall provide the following support and maintenance services.
11.1 Corrective maintenance
11.1.1 Scope of ALMA’s obligations
Any malfunction of the Services shall be notified by the Client to ALMA.
The Client shall provide any information that may be useful for the identification of the Error.
ALMA commits to acknowledge the Error within 8 local working hours and to use commercially reasonable efforts to fix such an Error within a reasonable delay.
This corrective maintenance may include providing temporary workarounds, or updates to the Software, in order for the Services to be functional.
ALMA shall not be responsible for any delay attributable to the Client or in case where an Error is not reproducible.
11.1.2 Conditions
ALMA’ obligations under Corrective Maintenance are conditional upon the following:
- The Client makes reasonable efforts to solve the reported Error after consulting with ALMA;
- The Client provides ALMA with sufficient information and resources to correct the reported Error either at ALMA Client support center, as well as access to the personnel, hardware and any additional software involved in discovering or analyzing the Error;
- The Client procures, installs and maintains all equipment, telephone lines, communication interfaces and other hardware necessary to operate the Services; and
- The Client has paid all Service fees when due, and is furthermore in compliance with the Terms and Conditions of the Contract.
11.1.3 Exclusions
ALMA shall have no obligations under Corrective Maintenance in connection with any Errors caused by: The Client negligence or other causes beyond the reasonable control of ALMA;
- interconnection of the Services with other software products not supplied by ALMA;
- use of the Services on an inappropriate technical configuration or a change in the User initial configuration;
- third-party components, whether proprietary or open-source;
- misuse or use that is not compliant with the online instructions or the recommendations given by ALMA;
- another application belonging to the User;
- an accident, negligence, malicious use or misuse or act of a third-party;
Any intervention by ALMA for a non-supported Error shall be invoiced to the Client, at ALMA current hourly rate at the date of the intervention.
The Client may subscribe to specific and additional Support Services, subject to a prior quote by ALMA.
In no case ALMA will intervene on the Client site.
All requests for Support or Maintenance under this Contract shall be sent exclusively by email to the following address: contact@nestandcut.com.
11.2 Upgrading maintenance
ALMA may implement modifications to the Services that represent an improvement for the Users (functions, performance, ergonomics). Such improvements will be made immediately available to the Client, and shall not cause any major interruption of Services (i.e. any interruption longer than 5 minutes), except for specific operations that the Client will be informed of, as set forth in Section 13.
11.3 Assistance
ALMA will provide the Client with all necessary assistance with regard to the use of the Services, in the following conditions.
The Client may send an email to Customer Support Center, which will be processed during its standard opening hours, from Monday to Friday between 9am and 6pm, Central European Time (with the exception of French public holidays).
Assistance is limited to 3 requests per day, with a combined processing time not exceeding 30 minutes per day. If this threshold is exceeded, ALMA reserves the right to charge for the time spent in the assistance of the User, based on ALMA hourly rate. This invoice will be possible only if ALMA has previously informed the Client that it has reached this threshold and of the subsequent billing.
This threshold does not apply to calls or requests for Errors covered by corrective maintenance.
Alternatively, to the above billing, the Client may, once informed of the threshold reached, choose to follow a specific training, proposed by ALMA, and upon quotation.
11.4 Support Process
The User email shall be ALMA only technical contact for all support and maintenance requests. However, as a last resort, if ALMA deems it necessary, assistance may be provided by telephone.
11.5 Training
Upon the Client’s request, ALMA may provide training related to Services to the Client personnel under conditions to be determined by common agreement.
12. Prices and payment conditions
12.1 Prices
In return for the rights granted in accordance with this Contract and for the delivery of Services by ALMA, the Client shall subscribe to a monthly or annual “Package”, and pay to ALMA the corresponding Service fee, whose amount is available on the Website. When subscribing to an annual Package, the Client can fill in a specific partner code if one was provided by a local partner in the country of the future client.
Unless otherwise specified on the Website, the Client may send an unlimited number of Requests for each Package subscribed, the Results being displayed in its Client account.
However, the Client agrees that the use of the Service should be fair, i.e., it should match its effective needs, and be consistent with its own production or commercial purposes. Any use of the Service that would be unrelated to the Client’s specific commercial or production needs will be deemed abusive. Therefore, in order to preserve the integrity and performance of the Service, and prevent any abusive use of the Service, ALMA reserves the right, at its own discretion, to suspend or limit the Service if the number of Requests exceeds 5,000 Requests per calendar month.
If, for any reason, the number of Requests the Client needs to send exceeds such limit, it shall contact ALMA to arrange for a specific Package.
As an alternative to the “Package” mentioned above, the Client may elect to pay for the Services on a “pay-per-use” basis. In such a case, the Client shall pay a flat fee for each Request processed by the Service, whose amount is available on the Website. Payment will be required to access and download the Result in its Client Account.
Fees and prices of the Services are defined without tax and shall be increased by all levies and taxes in force at the date of the invoicing. The Client agrees to bear and to be responsible for the payment of all taxes including but not limited to applicable duties, tariffs or sales taxes imposed or levied by the tax authorities of the Client. In the event that the Client should withhold applicable taxes from the payments it shall promptly provide ALMA with the exemption certificate issued by the local tax authorities.
12.2 Payment Conditions
Service fees are payable, whether in euros for Clients based in Europe, or in US dollars for Clients based outside Europe, on a monthly or annual basis (depending on the Package selected), in advance, by direct debit.
Fees may also be paid by credit card, through a Stripe account, or by any other means available on ALMA’s Website.
The Client will receive its invoice by email. It may also access its invoices through its Stripe account.
12.3 Revision of Prices
ALMA may increase Service fees at any time, with thirty (30) days prior notice. In case of disagreement, the Client may terminate this Contract within the thirty (30) day notice, such termination being effective upon expiration of this period. Should the Client not terminate the Contract within this period, the updated fees shall apply to existing Contracts, whether monthly or annual, upon their renewal.
ALMA reserves its right to suspend the supply of the Services until full payment by the Client of all due amounts. ALMA reserves the right to terminate the Contract if the Client does not comply with these payment conditions. The non-performance or defective performance of the Service alleged by the Client shall not entitle the latter to retain partial or total payment of any due amounts.
13. Availability and Quality of the Services
ALMA commits to providing the Services in a professional and workmanlike manner consistent with industry standards reasonably expected of such services.
ALMA shall implement the means necessary to obtain 99% availability of the Services.
This availability rate is measured per year, from Monday to Friday 24/24.
It is expressly agreed that ALMA shall not be liable for unavailability resulting from:
- network disruptions;
- computing disaster at ALMA’s or its subcontractor’s facilities;
- interruption of hosting services provided by ALMA’s own provider;
- operation, installation, or default from a third-party component;
- the fluctuations of the bandwidth and the uncertainties due to the internet provider;
- the interruption by a court or judicial or governmental authority of competent jurisdiction;
- any case of force majeure, as specified under article 19.
ALMA shall only be liable in case of unavailability due to its own performance of the Services, namely:
- a bug or error affecting the Software, or its performance;
- its own hosting services, in case the Services unavailable are hosted on ALMA’s equipment;
Moreover, ALMA may suspend access to the Services for operations of major security maintenance in order to ensure the efficient operation of the Services. Such operations shall be planned and ALMA will inform in advance the Client by email to its technical contact with a reasonable delay and indicate the nature and duration of such interventions. In such a case, ALMA shall make reasonable efforts to provide the Client with a backup solution, which shall enable the Client to use and access the Services, albeit of impaired quality or not updated. When exceptional technical circumstances jeopardize logical servers or hosting infrastructure, such maintenance operations can be made under the same conditions without notice.
Any unavailability resulting from operations of upgrading or corrective maintenance of the Services shall not be accounted for in the availability rate set forth above.
In the case where the unavailability period set forth above were to be exceeded, and ALMA were liable for such unavailability, ALMA shall pay to the Client a penalty which shall be set as follows:
- The Penalty period starts from the time at which the guaranteed availability is exceeded,
- Penalty = Penalty period (in minutes) x Cost per minute x 10,
- Cost per minute = monthly fee / (30x24x60).
In any case, such a Penalty is capped to two months’ subscription fee (or 1/6th of the annual subscription fee).
The Penalty shall be paid by deducting the penalty amount from the Client next invoice.
The Penalty constitutes full discharge of liability for the unavailability of the Services such that the Client may not pursue any other remedies against ALMA, for any breach of ALMA’s obligations under this Section.
In case the provision above was deemed unenforceable, ALMA’s liability shall not exceed the general cap of liability set forth in section “Liability”.
14. Warranty
ALMA warrants that the Services shall operate in accordance with the specifications and functionalities as described on the Website.
ALMA warrants there will be no substantial non-compliance of the Results with the request made by the User.
Such non-compliance shall include specifically:
- Error of spacing between parts specified by the User’s parameters/settings;
- Errors in quantities;
- Overlapping parts;
- Any non-compliance not mentioned above shall not be deemed substantial, unless proven otherwise by the User or Client.
If such a case of non-compliance, as defined under this Section, were to occur, ALMA commits to resolve it and send the Client a compliant Result within 24 hours of the Client’s request, if made under the conditions set forth in Section 11.1 (“Corrective Maintenance”). All other cases of non-compliance shall not be considered as “Errors”, nor treated through Corrective Maintenance.
ALMA does not warrant that the performance of the Services will be uninterrupted or error free and that all Errors will be corrected.
ALMA does not warrant that the Services will fit with the specific needs of the Users.
ALMA hereby disclaims all warranties and conditions, either express, implied, or statutory, including, but not limited to any implied warranties, duties or conditions of merchantability, of fitness for a particular purpose.
This Section represents the entire warranty given by ALMA.
15. ALMA’s liability
15.1 General principles
It is expressly agreed that AMA shall make all reasonable efforts to meet its obligations. Consequently, ALMA shall only be liable for proven negligence or default.
ALMA shall not be liable for hidden defects or malfunctions of the Client’s or User’s system and more generally for problems due to manufacturers or software editors (manufacturing or coding defects) or generated by the telephone or internet network.
ALMA shall not be liable for delayed supply or default in the supply of the Services, if the Client does not comply with its obligations and if the documents, files, technical data supplied by the Client or User are not comprehensive and/or are inaccurate and/or erroneous.
ALMA shall not be liable for any damages arising from the use of Services. Any use of the results obtained by the use of the Services shall be under the sole liability, management and control of the Client or the User.
The Client shall take all necessary steps to prevent any damages to the files, data, documents or any other elements disclosed in the course of the use of the Services. The Client shall take all steps to safeguard said documents, files or data. ALMA shall take all security measures to protect its servers against Customer’s data contamination and malicious intrusions of third parties.
ALMA shall never be liable for claim or action instituted by any third party, in particular arising from the posting of information, pictures, designs, text, collected and stored during the performance of Services and that may violate laws and regulations and more particularly intellectual property law. In such a case, the Client shall indemnify and hold ALMA harmless from any damages resulting from a third-party claim.
In the event that unlawful content or content violating applicable laws are likely to incur criminal or civil law and/or may infringe third parties right, ALMA reserves its rights to suspend the supply of the Services immediately and without notice and to terminate this Contract without prejudice of compensation that ALMA may claim.
ALMA shall not be responsible for any difficulties in accessing the Services due to the characteristics and limitations inherent to the Internet which may be saturated from time to time.
To the maximum extent permitted by applicable law, in no event shall ALMA be liable for any special, incidental, indirect, or consequential damages or punitive damages whatsoever including, but not limited to, damages for loss of profits or revenues, business interruption, failure to realize expected savings, loss, disclosure, unavailability of or damage to data, brand damage arising out of or in any way related to the use of or inability to use the Services or the exploitation of the results of the use of the Services even if ALMA has been advised of the possibility of such damages and even if the remedy fails in its essential purpose and whether based upon breach of contract or tort.
It is expressly understood by the parties that all actions or claims instituted or filed against the Client by a third party constitute indirect damages and, therefore, shall not entitle the Client to any compensation.
The Client expressly holds ALMA harmless from any liability with regards to damages claimed by a User or any third party against ALMA as a result of a misrepresentation by the Client, by any of its employees, or by its agents regarding the functionalities and performance of the Software and more generally as a result of any negligence or default in the performance of the Client’s obligations under this Contract.
15.2 Liability Cap
Notwithstanding the above clauses, it is agreed by both Parties that the total amount for which ALMA will be liable in the case of a proven negligence or default will be limited to the total sum of fees paid by the Client to ALMA under this Contract during the three (3) months preceding the date on which the claim arose.
16. Intellectual property rights
16.1 ALMA Copyrights
The tools, methods, models used or developed by ALMA in the delivery of the Services shall remain the exclusive ownership of ALMA.
ALMA shall retain copyright of the Services.
Consequently, the Client shall not infringe directly or through any third-party ALMA’s intellectual property rights.
The Client shall take all necessary steps to protect ALMA’s intellectual property rights.
The Client shall make sure that the Users respect ALMA’s intellectual property rights.
The Client shall not analyze the Service with the purpose of obtaining information and using that information to develop or have developed by a third-party similar service likely to compete with the Services.
16.2 Intellectual Property Rights Warranty
In the case where an action is brought against the Client based on a claim that the use of the Services infringes any third party’s copyright, ALMA shall indemnify and hold harmless the Client from any damages in favor of the third party under a final judicial decision not subject to appeal, whether or not of suspensive effect, or from the amount of the settlement fees provided for in the settlement agreement signed with the plaintiff, and endorsed by ALMA arising there from or caused thereby, within the specific limits set forth below, provided that (i) ALMA is notified promptly in writing of any claim to allow ALMA to defend, compromise or settle the claim (ii) ALMA is not brought into the procedure by the Client, which expressly waives any right or remedy thereof, (iii) the Client provides all available information and assistance regarding the claim, including any update on the procedure and its evolution (iv) ALMA gives full consent to any settlement agreement concluded between the Client and the third party.
If any portion of the Services becomes, or in ALMA’s opinion is likely to become, the subject of a claim of infringement, ALMA may, at its expense, and its sole discretion, (i) procure for the Client the right to use the Services, or applicable portion thereof; (ii) modify the Services so that they are no longer infringing, but still substantially conforms with the Documentation; or (iii) terminate the Contract entirely, and as ALMA’s sole liability and the Client’s sole remedy for such termination, refund the Client the Service fees actually paid by the Client for the last twelve months preceding such termination. Such a remedy shall not be exercised by the Client in addition to any other claim for damages. In any event, ALMA’s liability in case of violation of the “Infringement” provisions shall be limited to the amount of Service fees paid by the Client during the last twelve months preceding the third party’s claim.
The foregoing indemnity obligation shall not extend to any claims of infringement arising out of or related to (i) a modification of the Services by anyone other than ALMA or its duly authorized agents; (ii) the incorporation into the Services of any information provided by or requested by or on behalf of the Client; (iii) a combination of the Services with any other software or equipment where the infringement or misappropriation would not exist without such a combination.
This Section states the entire liability of ALMA with respect to infringement of copyright of third party by the Services.
17. Confidentiality
Neither Party shall disclose to third party confidential information (“Confidential Information”) received from the other Party.
Each party shall use Confidential Information only for the performance of this Contract and shall take all security steps to prevent unauthorized disclosure of Confidential Information.
Confidential Information means all information including but not limited to methodological, commercial, financial, or technical information related to a Party, its subcontractors, suppliers or Users obtained during the performance of this Contract and clearly marked as being confidential by the disclosing party or being confidential by nature.
However, the obligation of confidentiality with respect to the Confidential Information shall not apply if the information communicated was already known by the receiving Party, the information communicated was publicly known at the time of its receipt by the receiving Party or has become publicly known other than by a breach of this Contract or other action by the receiving Party, or the information is independently developed by the receiving Party without use of any Confidential Information received from the disclosing Party.
The Parties shall keep confidential the content of this Contract and any Confidential Information for the duration of the Contract, and for a period of five (5) years from its termination, whatever its cause. Each Party shall protect such Confidential Information from inadvertent disclosure to a third party using the same care and diligence that they use to protect their own confidential information.
Each Party shall strictly maintain the confidentiality of the methods of the other Party that may come to its knowledge during the performance of this Contract and shall pass on such duties of confidentiality to its personnel, its contractors or subcontractors involved directly in the supply of the Services and with a need to know.
18. Ownership of Results – Data Storage
18.1 General Provisions
All data and information related to the supply of Services, including the technical information and processes of the User used by ALMA to perform the Services, personal data of Users, as well as the Results, shall be the exclusive ownership of the Client.
Results shall be available to the Client on its personal account for 30 days from the Client Request (“Retrieving Time”).
ALMA commits to implementing any technical means to secure the Users’ data, for the Storage Time. To this aim, full database backups are made every day and stored on Amazon Cloud Storage (AWS) and kept for 9 days.
However, ALMA shall bear no responsibility to store such data and/or Results in its system, beyond the Retrieving Time. The Client expressly agrees that ALMA may not continue storing, and may delete, any Result that has not have been downloaded within the Retrieving Time. ALMA shall bear no liability in such a case, specifically in the case of a claim by the User.
Notwithstanding the above, ALMA may decide to store Results and the User’s data beyond the Retrieving Time, for statistical processing purposes or improvement of its own Services.
18.2 Personal Data
18.2.1 Data Processing and Purposes
For the purposes of delivering the Service, ALMA may store the User’s personal data, such as names, email addresses, IP addresses or telephone numbers (hereafter: “Personal Data”). Such Personal Data may also be used to send to Users ALMA’s e-mailings, or commercial offers, under the conditions set forth in Section 18.2.3, or to prevent abusive use of the Service, such as multiple subscriptions of 30-days free trial offers.
18.2.2 Hosting – Subcontracting
Personal Data are stored and processed electronically on the “Amazon Web Services Global Infrastructure” also known as the “AWS Cloud». Service’s servers hosting personal data are located in Paris, France.
Any e-mailing to Users shall be processed by TouchDown, which stores the data in France, their servers being primarily located in France.
The Client acknowledges and agrees that ALMA may entrust Data Hosting to AWS as a subcontractor. If, for the purposes of delivering the Service, more hosting resources were needed, ALMA may at any time entrust another hosting provider, acting as a subcontractor, with hosting all or part of the Personal Data; subject to informing the Client prior to this change. Such a provider shall give adequate guarantees as to Data security and confidentiality. In any case, ALMA remains liable for any breach of its obligations that may be attributed to one of its subcontractors.
18.2.3 Storage Time
The User’s Personal Data shall be stored for the duration of the Contract. Upon termination of the Contract, they shall be processed for the sole purposes of sending ALMA’s e-mailings, and ALMA’s commercial offers unless, until the User unsubscribes from the e-mailing list, or for a maximum period of 3 years from the Client’s last subscription. Furthermore, such Data shall be archived, for a maximum period of 10 years, for the purposes of legal obligations (such as accounting or tax controls or inquiries).
18.2.4 Personal Data Breach
ALMA shall notify the Client of any Personal Data breach no later than 72 hours after having become aware of such breach, unless such personal data breach is unlikely to result in a risk to the rights and freedoms of the Users. Such notification shall also be made to the French Control Authority, in compliance with art. 33 of GDPR.
The Client shall transfer this information to the Users whose data has been breached; ALMA being expressly discharged of such notification.
The notification referred to in paragraph 1 shall: (a) describe the nature of the personal data breach including where possible, the categories and approximate number of people concerned and the categories and approximate number of personal data records concerned; (b) communicate the name and contact details of ALMA’s data protection officer or other contact point where more information can be obtained; (c) describe the likely consequences
of the personal data breach; (d) describe the measures taken or proposed to be taken by ALMA to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.
18.2.5 The User’s Personal Data rights
In compliance with GDPR, Users are entitled to access and update their Personal Data. They also may oppose any use of their Personal Data that may not be consistent with the purposes defined, or after termination of the Agreement, as provided under Section 18.2.3. In such a case, the User’s Personal Data shall be erased without delay. Any request to exercise the above rights shall be sent to gdpr@alma.com
18.2.6 ALMA’s liability
The Client warrants that all the User’s data transmitted to ALMA comply with all applicable rules and regulations regarding the use, collection, storage, and treatment of personal data.
In particular, the Client warrants that such personal data, as the case may be, have been collected and treated in accordance with EU and French Regulations; and holds harmless ALMA from any claim from a third party regarding the use of such data, within the performance of ALMA’s obligations under this Contract.
In any case, ALMA’s liability towards the Client, in the case of a claim by a User regarding the use and processing of its Personal Data, based on joint liability enacted by art; 82.4 of GDPR, shall be limited to the amount set forth under the general “Liability” Section of this Agreement.
19. Force Majeure
The contractual obligations of both Parties according to this Contract will be suspended in the case of an event constituting a force majeure according to the definition in French law and the jurisdiction of the French Courts.
The following events shall be considered cases of force majeure, regardless of their legal qualification as force majeure under applicable law: strikes affecting one Party’s staff, or a Party’s power or communication provider, a power supply failure (such as electricity), a civil or foreign war, riots or popular movements, attacks, loss of Internet connectivity due to public and private operators upon whom ALMA depends.
Events of force majeure shall suspend the performance of the Contract. However, if the case of force majeure extends for a period longer than sixty (60) consecutive days, the Contract may be terminated with a seven (7) day written notice delivered by registered letter with acknowledgment of receipt.
20. Assignment
The Client shall not assign or transfer the Contract to a third party, without ALMA’s prior written approval.
On the other hand, ALMA may at any time assign its rights and obligations under this Agreement subject to informing the Customer. It is agreed, for all intents and purposes, that a simple change of control of ALMA shall not constitute an assignment of the Contract. Notwithstanding Article 1216-1 of the French Civil Code, in case of assignment of the Contract to a third party, ALMA will no longer be held liable for any debt or obligation related to the performance of the Contract, whether past or future, such rights and obligations being fully endorsed by the assignee.
21. Subcontracting
ALMA may subcontract totally or partially the supply of Services to any third party of its choice. However, ALMA shall remain fully liable to the Client for its obligations under this Contract.
22. Commercial reference
The Client authorizes ALMA to use its trade name and the purpose of this Contract as commercial references.
23. Severability
If any provision of the Contract is held to be invalid, illegal, or unenforceable, then, to the extent permitted by law, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
24. No Waiver
Anyone or more failure by either party to enforce any provision of the Contract or to exercise any right shall in no way constitute a waiver of such right or remedy on any future occasion.
25. Applicable law – Litigation
These Terms and Conditions shall be governed and interpreted in accordance with the laws of France.
Any dispute arising out or in connection with performance/interpretation of the Contract shall be amicably settled. IF BOTH PARTIES CANNOT REACH AN AMICABLE SETTLEMENT WITHIN THIRTY (30) DAYS FROM THE RECEIPT OF THE REGISTERED LETTER NOTIFYING OF THE LITIGATION, THE CASE SHALL BE SUBMITTED TO THE EXCLUSIVE JURIDICTION OF THE GRENOBLE, FRANCE COMMERCIAL COURT, NOTWITHSTANDING THE CASE OF PLURALITY OF DEFENDANTS, OR EMERGENCY PROCEDURE.