General Terms and Conditions of Use

KIMEA Solution

Article 1 – Definitions

Words or expressions beginning with a capital letter shall have the following meaning:

“Purchase Order”: refers to the commercial documentation provided by MOOVENCY to the Client in relation to (i) the specifications and functionalities of the Solution, (ii) the financial terms of use of the Solution.
“General Terms and Conditions of Use” or “T&Cs”: refers to these general terms and conditions of use of the KIMEA solution.
“Contract”: refers to the contractual set composed of the Purchase Order, MOOVENCY’s General Terms and Conditions of Sale and Services, the T&Cs and the “Personal Data Processing” Appendix.
“Documentation”: refers to documents provided by MOOVENCY to Users, namely technical descriptions and specifications, technical manuals, support materials and other information concerning the Solution and/or Application Services, distributed in electronic format or accessible online.
“Client Data”: refers to data of any nature whatsoever entered by the Client or captured by them (notably environmental data) and processed within the framework of the use of the Solution.
“Personal Data”: refers to any information relating to an identified or identifiable natural person, directly or indirectly, particularly by reference to an identifier such as a name, identification number, location data, online identifier, etc.
“Intellectual Property Rights”: refers to all copyrights, patents, designs and models, trademarks, trade secrets, know-how, database rights and any other intellectual property rights or similar rights, and all applications, renewals, and registrations thereof applying to the Documentation, the Solution and the Application Services, worldwide.
“Deliverables”: refers to measurements, analyses and/or recommendations addressed by MOOVENCY to the Client or generated by the Client within the framework of the use of the Solution.
“Equipment”: refers to equipment provided by MOOVENCY under the Purchase Order, intended to be used with the Solution to access Application Services in compliance with the T&Cs.
“Party(ies)”: refers individually or collectively to MOOVENCY and/or the Client.
“Fees”: refers to amounts paid by the Client under the Purchase Order, in consideration for the use of the Solution and Application Services by the User.
“Application Services”: refers to all functionalities and application services implemented by the Solution within the scope of the Purchase Order.
“Site”: refers to the location of use of the On-Premise Solution by the User.
“Solution”: refers to the KIMEA software developed by MOOVENCY, accessible in SaaS or OnPremise mode. The Solution is standard software that has not been specifically developed to meet the Client’s needs.
“On-Premise Solution”: refers to the Solution deployed in object code and installed on the Client’s Information System located at the Site.
“SaaS Solution”: refers to the Solution accessible in the cloud in Software as a Service mode.
“Information System”: refers to the Client’s IT resources (databases, hardware, network infrastructure and servers) at the Site, on which the On-Premise Solution is installed and/or with which the Solution interacts.
“Terminal”: refers to any digital device (computer, smartphone, electronic tablet, etc.) capable of (i) storing, copying, reproducing, recording, transferring computer data, whatever their nature and format, (ii) connecting to the Internet network by any means or process whatsoever (e.g. wired connection, Wi-Fi, Bluetooth, mobile telephone network, etc.) used by the User to access the Solution and use the Application Services.
“Update”: refers to non-substantial modifications made by MOOVENCY to the Solution with regard to technological, legal or functional developments, without these modifications adding new functionalities or Application Services. Updates are included in the Fees paid by the Client.
“Upgrade”: refers to any update or upgrade of the Solution presenting new functionalities or restructuring the Solution and Application Services so significantly compared to the version of the Solution at the date of the Purchase Order, that it is considered to constitute a new solution by MOOVENCY.
“User”: refers to any person authorized or empowered by the Client (employee, service provider, subcontractor, etc.) to use the Solution in compliance with the T&Cs.

MOOVENCY (hereinafter “MOOVENCY”) has developed the KIMEA software solution to measure and prevent the risks of musculoskeletal disorders in a professional environment. The Client, after having become aware of the potential, purpose, functionalities, standard nature and operating mode of the Solution and Application Services presented in the Purchase Order, and after having had the opportunity to request from MOOVENCY a presentation of the characteristics or functionalities of the Solution, has decided to benefit from it. The Client acknowledges having received all information and advice enabling them to take the measure of the Purchase Order and having ensured the conformity of the Solution to their needs.

Article 2 – Purpose

The T&Cs define the terms and conditions under which MOOVENCY grants Users authorized by the Client the right to access the Solution and use the Application Services. The provisions of the T&Cs shall also govern all Updates and/or Upgrades provided by MOOVENCY that replace and/or supplement the version of the Solution at the effective date of the T&Cs, unless such update and/or upgrade is accompanied by a separate license agreement proposed by MOOVENCY.

Article 3 – Acceptance of the T&Cs

Access to the Solution and/or Application Services and their use require prior unreserved acceptance of the T&Cs by the Client and the User. Prior to accepting the T&Cs and using the Solution, the Client and User declare that they have become aware of the characteristics and functionalities of the Solution and Application Services and have ensured their adequacy to their needs.
The Client’s acceptance of the Contract is materialized by the signature of the Purchase Order to which MOOVENCY’s General Terms and Conditions of Sale and Services and these T&Cs are appended.
The creation of each User Account is subject to acceptance of the T&Cs by the User concerned. By checking the dedicated box during the first connection to the SaaS Solution and/or during the installation of the On-Premise Solution and/or during the creation of the User Account, the User expresses their express and unreserved consent regarding the T&Cs.
Acceptance of the T&Cs is complete and forms an indivisible whole, and the Client and/or User cannot (i) choose to apply only part of the T&Cs or (ii) formulate reservations. The Client guarantees compliance with the terms of the T&Cs by each User.

Article 4 – Duration

Unless otherwise agreed in the Purchase Order, the Contract is concluded for a period of twelve (12) months from the date of subscription by the Client and is renewed upon request of the Client.

Article 5 – User Account Creation

The use of the SaaS Solution and Application Services requires the creation of a User Account by each User (hereinafter the “User Account”). Any entry of false, inaccurate, illegitimate, non-updated or incomplete information or the choice of a User name containing injurious, defamatory, violent, obscene terms or more generally terms contrary to public order and good morals, may result in the suspension or closure of the User Account by MOOVENCY.

The User undertakes to keep strictly confidential the identifiers and passwords that will be assigned to them or that they have chosen and not to communicate them to third parties, to avoid as much as possible any risk of intrusion or usurpation of their User Account. MOOVENCY cannot be held responsible for any use of the User Account by a third party who would have had access to the User’s identifiers and password in any way whatsoever. Any use of the User Account identifiers is under the sole responsibility of the Client.

In case of loss or theft of one of their identifiers, the User may request to reset their identifier, the procedure being followed by email. In case of theft, the Client must inform MOOVENCY without delay and by any appropriate means to consider appropriate measures together

Article 6 – Access to the Solution and Services

According to the Client’s choice in the Purchase Order, the Application Services are accessible by Users in the cloud via the SaaS Solution or after installation of the On-Premise Solution on the Client’s Information System.

SaaS Solution :

The hosting of the SaaS Solution is performed on MOOVENCY’s servers or those of the service provider chosen by MOOVENCY, and access to Application Services is carried out by the Client via their Terminal connected to the Internet network. The Client is solely responsible for obtaining sufficient access to the Internet network and adequate equipment, particularly by entering into an Internet access supply contract with a telephone operator at their sole expense.

On-Premise Solution :

The Client will proceed under their sole responsibility with the installation and configuration of the Solution, unless services are agreed upon in the Purchase Order. During its use, the Client connects to MOOVENCY’s servers during installation, for verification of the availability of Updates or verification of the compliance of the use of the Solution with the
provisions of the Purchase Order.

The Client is informed that MOOVENCY may modify the terms and conditions of technical deployment of the Solution during the term of the Contract, particularly by offering only access in SaaS mode, while guaranteeing the same functionalities and service levels. In such case,

MOOVENCY will inform the Client in writing thirty (30) days before the new deployment terms of the Solution come into effect. MOOVENCY wishes to continue to offer a Solution best adapted to the activities and constraints of its Clients and may propose, where applicable and subject to feasibility, access to the On-Premise Solution (e.g. via a browser). In case of disagreement, the Client has the option to terminate the Contract in accordance with the provisions of Article 21 of the T&Cs.

Article 7 – Presentation of Services

The specifications of the Solution and the content of the Application Services are agreed upon in the Purchase Order and/or in the Documentation provided to the Client. MOOVENCY draws the attention of the Client and User to the evolving nature of the technology implemented in the Solution, the typology of available Application Services and applicable
legislation.

Consequently, the User is informed that MOOVENCY may make any modification to the content and functionalities of the Solution and Application Services related to technical and/or legislative evolution or correction of anomalies, without resulting in any alteration of quality or modification of the characteristics of the Application Services for the User. During the term of the Contract, any request for services not included in the scope of the Purchase Order or Application Services will be subject, subject to its legal or technical feasibility, to a prior quote prepared by MOOVENCY.

Article 8 – Intellectual Property

8.1. Parties’ Intellectual Property Rights

MOOVENCY retains all of its Intellectual Property Rights relating to the Solution and Application Services, their interface and the Documentation. The Client acknowledges and expressly accepts that MOOVENCY’s distinctive signs (trademark, logo, corporate name, domain name), the Solution, Application Services, Deliverables and Documentation include elements protected by copyright, confidentiality, trade secrets, and are as such protected by applicable regulations, both national and international.

The Client retains all of its Intellectual Property Rights relating to Client Data and its Information System.
The Contract does not entail any assignment or grant of Intellectual Property Rights between the Parties, other than rights limitatively and expressly granted in Article 9 “Scope of Rights Granted”.

8.2. Third Party Licenses

The Client is informed that the use of all or part of the Equipment or certain Application Services may be governed by general terms and conditions of use, by a license or any contractual document established by the supplier or manufacturer of the Equipment (the “Third Party Licenses”). By using the Equipment, the Client undertakes to comply with the provisions of these Third Party Licenses and acknowledges being solely responsible for breaches of Third Party Licenses and damages resulting from their or the User’s actions caused to MOOVENCY, Users and any third party.

Article 9 – Scope of Rights Granted

9.1. Rights to Use the Solution and Application Services

The Contract relates exclusively to the Solution and Application Services agreed upon in the Purchase Order and T&Cs and does not include any Upgrades.
In consideration for payment of the Fees by the Client agreed upon in the Purchase Order or in MOOVENCY’s General Terms and Conditions of Sale, MOOVENCY grants the User, who accepts, a personal, non-exclusive, non-sublicensable and non-transferable right to use the Solution, Application Services and Deliverables, from their Terminal and to use them for non-commercial purposes, worldwide with regard to the SaaS Solution or at the Site, within the limit of the number of Users authorized in the Purchase Order and for the term of the Contract.
The Intellectual Property Rights granted to the User under the Contract include the following rights, limitatively enumerated:

Right to access the SaaS Solution from the Terminal;
– Right to use the On-Premise Solution installed on the Client’s Information System at the Site;
– Right to use the Solution, Application Services and Deliverables, by the authorized number of Users, for the Client’s internal needs only and in accordance with the intended purpose of the Solution, as well as the Documentation.

The Client expressly acknowledges that the use of the Solution, Application Services or Deliverables for commercial purposes (integration of the Solution into the Client’s service offering, training services by the Client, etc.) is prohibited, unless a specific contract is signed with MOOVENCY in advance.

Consequently, the User is prohibited, directly or indirectly, from:

> Using the Solution and/or Application Services for a use contrary to their intended purpose and/or non-compliant with the Documentation and/or T&Cs ;
> Distributing, making the Solution, Application Services and/or Deliverables available to third parties (particularly by distribution on any computer or telecommunications networks), commercializing them and/or granting loans thereof;
> Granting sub-licenses, free or for consideration, relating to the Solution or all or part of its components (user interface, Application Services, Deliverables );
> Representing, reproducing in whole or in part, permanently or temporarily, the Solution by any means, known or unknown to date, by extracts or in totality and on all existing or future formats and media, particularly paper, analog or digital (such as DVDs, USB keys, hard drives or other digital memory media), interactive or not, digital, multimedia (particularly internet, intranet and extranet) in any form whatsoever and in all languages ;
> Translating, adapting, arranging or modifying the Solution, by any means and on any media ;
> Performing or having performed the correction of any anomaly of the Solution without the prior express written consent of MOOVENCY ;
> Proceeding or having proceeded with the study of the functioning of the Solution, particularly by reverse engineering ;
> Designing and developing applications, software, connectors (particularly regarding the interfacing of the On-Premise Solution with the Client’s Information System) and more generally any secondary works from the source code and/or object code of the Solution ;
> Creating any patentable or non-patentable invention from the Solution ;
> Filing or reserving any intellectual property titles (particularly copyright, trademark, patent, utility certificate, domain names) relating to the Solution, Application Services or Deliverables with any office or authority worldwide ;
> Reconstituting or attempting to reconstitute, from information appearing on the Solution, a website and/or software aimed at offering to third parties, directly or indirectly, free or for consideration, the same service or a service comparable to the Application Services, and/or distributing or selling, in any way whatsoever, information for the purpose of helping a third party to reconstitute, in whole or in part, such a website or an equivalent site, such software or equivalent software or a service competing with the services offered by MOOVENCY.

Any reproduction, disclosure, distribution, representation, adaptation, translation, modification, decompilation, commercialization, granting of sub-licenses relating to all or part of MOOVENCY’s Intellectual Property Rights by the Client or User, whatever the purpose, medium considered, duration, territory and means used, is prohibited without the prior express written authorization of MOOVENCY.
Any modification of the number of Users is subject to the express agreement of MOOVENCY and, where applicable, payment of an additional Fee at the rate in force.

The Client declares and acknowledges that the provisions of this Article 9.1 are determinative of MOOVENCY’s consent. Consequently, any breach by the Client of its obligations constitutes a serious fault allowing MOOVENCY to immediately and automatically terminate the Contract, by simple notification by registered letter with acknowledgment of receipt, without prejudice to any damages or remedies that MOOVENCY could claim or exercise.

The use of Equipment outside the framework of the Contract and/or for any purpose other than that agreed upon in the T&Cs is the exclusive responsibility of the Client. To this end, the Client will deal personally with any claim or procedure initiated by third parties to stop any infringement of their rights and compensate any damage of any nature whatsoever that would result from the use of Equipment by the Client or Users.

9.2. Right to Use Client Data

The Client declares and guarantees to MOOVENCY that it holds or is vested with Intellectual Property Rights and/or authorizations relating to the Information System and Client Data to allow the installation of the On-Premise Solution, connection with the SaaS Solution, transfer and hosting of Client Data and provision of Application Services.
During the term of the Contract and worldwide, the Client grants MOOVENCY non-exclusive, free and non-transferable rights to use, copy, store and transmit Client Data, to the extent reasonably necessary for the implementation of the Solution and provision of Application Services, in compliance with the confidentiality obligation of Article 12 of the T&Cs.

With regard to Client Data hosted within the framework of use of the SaaS Solution and/or processed within the framework of the On-Premise Solution, MOOVENCY:

> Undertakes to use Client Data only within the framework of implementing the Solution; and
> Is prohibited from reusing for any purpose whatsoever and particularly renting, selling, sub-renting, distributing, assigning, transferring, licensing, sub-licensing Client Data.

However, the Client expressly accepts that MOOVENCY may use anonymized data and technical data (related to the use of the Solution) during the term of the Contract and after its end, for the purpose of improving the content or quality of the Solution, conducting statistical and technical studies, compiling data to understand and anticipate Users’ needs, or ensuring responsiveness in assistance that it may offer to the User, particularly through the implementation of patches and updates for the Solution.

Article 10 – User’s Obligations

The Client acknowledges that the use of the Solution is reserved for internal use only within the framework of the scope agreed upon in the Purchase Order, without direct or indirect profit motive for the Client, under penalty of termination by MOOVENCY by operation of law.
It is the Client’s responsibility to ensure the adequacy of the Solution and Application Services to their own needs and constraints.
The Solution, Application Services and Deliverables will be used by the Client under their control, direction and sole responsibility.

The Client undertakes to:

> Comply with legal provisions and formalities in labor law, particularly regarding consultation of employee representation bodies regarding the use of new technologies and/or prevention in health matters;
> Cooperate actively with MOOVENCY by notifying them without delay of any event affecting the compliant use of the Solution and Application Services;
> Access the Solution and use the Application Services and Deliverables in accordance with the provisions of the T&Cs, in compliance with applicable legal and regulatory provisions;
> Not access the Solution or Application Services by any means whatsoever other than that provided by MOOVENCY, unless express prior authorization from MOOVENCY by specific contract;
> Not deactivate or bypass the control mechanism for compliant use of the Solution that would be installed in the Solution where applicable;
> Ensure that no unauthorized person can access the Solution or use the Application Services;
> Use a Terminal compatible with the Application Services benefiting from the latest updates;
> Designate, among their staff, a privileged contact person for monitoring the deployment of the Solution and dialogue with MOOVENCY, where applicable;
> Inform and obtain consent from subjects within the framework of use of the Solution in accordance with the provisions of the “Personal Data Processing” Appendix;
> Make regular backups of their Client Data and Deliverables stored in their Information System.

Article 11 – Protection of Client Data

11.1. Client’s Obligations

The Client is solely responsible for the security of their Information System, Terminal and backup of Client Data that they process or store and acknowledges that it is their responsibility to
perform backups of their Client Data at a regular pace adapted to their activity and to regularly verify the content of backups performed.
Prior to installation of the On-Premise Solution or use of the SaaS Solution, the Client undertakes to perform a backup of all their Client Data.
The Client must take all necessary measures to (i) protect their Information System and particularly regarding protection against viruses, worms, malware and other hostile intrusion processes and (ii) minimize harmful consequences linked particularly to a possible interruption of operation or possible loss of data generated by the Solution or Application Services due to their use.

Operations for restoration or reconstitution of Client Data, programs or files lost or deteriorated within the framework of use of the Solution are not covered by this Contract.

11.2. MOOVENCY’s Obligations

Within the framework of deployment of the SaaS Solution, MOOVENCY undertakes to:

> Implement reasonable technical means in accordance with the state of the art to ensure the physical and logical security of servers and networks that are under its responsibility and control;
> Take all useful precautions in accordance with the state of the art to preserve the security of Client Data so that they are not, through its doing, distorted, damaged or communicated to unauthorized third parties.

Article 12 – Confidentiality

The Parties undertake to maintain confidential all confidential information of any nature exchanged, collected or arising from the use of the Solution and provision of Application Services, during the entire term of the Contract and for a period of five (5) years from the end of the Contract, for whatever cause. To this end, the Parties are prohibited from communicating in any capacity whatsoever, in any form whatsoever and for any purpose whatsoever all of this information and undertake to have this obligation respected by all their directors, employees, agents and any subcontractors.
MOOVENCY undertakes to use the same level of precaution as for the protection of its own confidential information of similar nature, to avoid disclosure, publication or distribution of this Client Data.
This confidentiality obligation does not apply to information that: (i) is already in MOOVENCY’s possession without any confidentiality obligation at the time the information is received from the Client; (ii) is developed independently by MOOVENCY without reference to Client Data; (iii) is or becomes publicly accessible without breach of this Contract; (iv) is duly transmitted to MOOVENCY by a third party without confidentiality obligation; (v) is communicated by the Client with their written authorization to disclose; or (vi) must be disclosed pursuant to a judicial or administrative decision, but only in compliance with that judicial or administrative entity, provided that MOOVENCY informs the Client promptly and cooperates reasonably with them to limit the disclosure and use of the information concerned, in accordance with the decision.

The Client is informed that:

> MOOVENCY encrypts usage data and Personal Data transiting via the Solution, cannot access it in clear text and cannot reconstitute the profile of subjects;
> The Solution has functionalities guaranteeing the anonymity of subjects.

Article 13 – Personal Data and Usage Data

13.1. Personal Data

The Parties’ obligations regarding processing of Personal Data relating to the use of the Solution are agreed upon in Appendix 1.

13.2. Usage Data

MOOVENCY collects and processes usage data within the framework of use of the Solution by the Client and provision of Application Services.
Usage data is not Personal Data because it does not relate to the Client and does not allow direct or indirect identification of Users, which the Client expressly acknowledges.
The Client is informed that the processing of usage data is essential for the use of Application Services in accordance with the T&Cs and allows MOOVENCY to:

> Provide Application Services;
> Improve the content and quality of the Solution and Services;
> Conduct statistical and technical studies or trends, compile data to understand and anticipate Clients’ needs;
> Ensure responsiveness in assistance that it may offer to the Client, particularly through the implementation of patches and updates for the Solution;
> Create new standards, products or scientific or commercial projects.
MOOVENCY guarantees to the Client the perfect anonymity of usage data processed via the Solution.

Article 14 – Warranty & Corrective Maintenance

14.1. Scope of Warranty

Subject to payment of Fees and perfect compliance with its obligations under the Contract by the Client and User, MOOVENCY warrants that at the Effective Date, the Solution and Application Services comply with the provisions of the Purchase Order and Documentation.
Due to the very nature of the Internet network and mobile telephone networks, MOOVENCY cannot guarantee to the User the continuous and permanent availability of access to the Application Services of the SaaS Solution. MOOVENCY undertakes to make its best efforts to provide the User with the following service level: 24/7 availability (98%).

14.2. Corrective Maintenance

Subject to the existence of specific support and maintenance conditions expressly agreed upon by the Parties or the preparation of a specific contract (e.g. Service Level Agreement), MOOVENCY provides the Client with the following corrective maintenance services.
During the term of the Contract and subject to payment of Fees, MOOVENCY provides the Client with a corrective maintenance service in case of occurrence of anomalies, difficulties accessing the SaaS Solution or using Application Services.
In case of malfunction of the SaaS Solution or Application Services, MOOVENCY will make its best efforts to correct anomalies affecting the normal functioning of the Solution and/or Application Services within the framework of maintenance.
MOOVENCY will discretionarily choose the most appropriate means to perform correction of anomalies, such as particularly: telephone assistance, remote maintenance, transmission of computer programs via the Internet to be installed by the Client, communication of a USB key containing patches to be installed by the Client, installation of Updates, etc.
In case of particular constraints relating to its Information System or in case of internal administrative or organizational procedures not allowing installation of patch files sent by MOOVENCY, the Client undertakes to cooperate actively and in a timely manner with MOOVENCY, where applicable by facilitating discussions with the Client’s IT department.
The User undertakes to install without delay any Update or patch made available by MOOVENCY when these are not automatically installed by MOOVENCY.
This corrective maintenance does not include any Upgrades and does not include the performance of specific developments on behalf of the Client, nor the provision of services not provided for in the Purchase Order.
The Client may inform MOOVENCY of the occurrence of such anomalies, according to the following terms and depending on the specific support conditions subscribed in the Contract, subject to dating and precisely describing the anomaly in question and the conditions of its occurrence:

> By telephone (from 9am to 5pm Monday to Friday excluding French public holidays): +33 7 48 66 42 48
> By email at helpdesk@moovency.com

Via the User Account on the Moovency website.
MOOVENCY will make its best efforts to process the Client’s request in accordance with the rules of the art and industry practices, without other warranty, within seventy-two (72) hours following notification of the anomaly by the Client.
MOOVENCY reserves the right to temporarily suspend access to the Solution and/or Application Services within the framework of performing maintenance operations of the SaaS Solution, without reduction in the amount of Fees.
Temporary interruptions of Application Services will be, as far as possible, notified to the Client via the User Account at least twenty-four (24) hours before their performance, except when these interruptions have an urgent nature.

14.3. Warranty and Maintenance Exclusions

MOOVENCY does not warrant that the Solution and/or Application Services are free from anomalies, errors or bugs and that their availability and functioning are uninterrupted.
To the extent permitted by applicable law and given MOOVENCY’s general obligation of means, the Solution, Application Services, and Deliverables are provided “as is”, without express or implied warranty of accuracy and/or reliability of the content of Deliverables, which the Client acknowledges and expressly accepts.
The Client declares and acknowledges that the Solution and Application Services are standard software products that have not been developed and deployed specifically for the Client. Consequently, MOOVENCY does not warrant the adequacy of Application Services, and/or Deliverables for a particular use not previously and expressly agreed upon in the Purchase Order or the absence of infringement thereof.

MOOVENCY rejects all warranties and liabilities if defects or non-conformities of the Solution or Application Services are caused by:

> The Equipment;
> Non-compliance by the User with the terms and provisions of the T&Cs; or
> Non-compliance by the User with instructions for use, installation, maintenance contained in the Documentation or T&Cs; or
> Inappropriate use of the Solution by the User, misuse, mishandling or inappropriate maintenance of the Solution; or
> Use of the Solution in combination or integrated into software, hardware, system or equipment not expressly approved in advance in writing by MOOVENCY; or
> Use of the Solution for a purpose other than that for which it is intended; or
> A weakness, defect or failure attributable to the Information System or Terminal and not directly and exclusively caused by the Solution; or
> Modifications made to the Solution by the User or any third party authorized by the Client, including mandatory modifications;
> Maintenance of the Solution or a support intervention performed by the Client, User and/or a third party not previously authorized in writing by MOOVENCY;
> Delay or absence of installation by the Client or User of any Solution patch made available by MOOVENCY; or
> A third-party product, and/or Open Source software.

Article 15 – Liability

15.1. Parties’ Liability

The Parties cannot be held liable for indirect or intangible damages allegedly caused to the other Party, which are expressly excluded, such as, particularly, loss of profits, loss of data, loss of opportunity, loss of clientele or damage to image.
MOOVENCY provides access to Application Services via the Solution within the framework of an obligation of means and is only responsible for the proper execution of its contractual obligations within the framework of the Contract and applicable laws and standards.
The Client acknowledges and expressly accepts that they are solely responsible for their use of the Solution and/or Application Services, and for any damage that any person, including themselves or the User, MOOVENCY and any other third party to the Contract, could suffer due to this use.
In particular, the Client is solely responsible for decisions and strategic orientations taken following the use of the Solution and Deliverables (particularly Deliverables generated by the Client) and their consequences with regard to the Client, Users and third parties.
In this sense, the Client acknowledges and expressly accepts that MOOVENCY’s liability cannot in any case be sought in case of damage claimed by an employee of the Client in connection with a Musculoskeletal Disorder (MSD) that could have its origin in the inadequacy of their workstation and that the use of the Solution or recommendations made by MOOVENCY in the Deliverables or based on Solution data would not have allowed to identify and/or resolve.
The Client is solely responsible for the accuracy, quality, integrity, legality, reliability and relevance of all Client Data, as well as obtaining authorizations relating to associated copyrights.

MOOVENCY exercises no control over the content of Client Data or third-party content present on the Information System, and assumes no liability relating to said content.

15.2. Limitations and Exclusion of Liability

IT IS EXPRESSLY AGREED BETWEEN THE PARTIES THAT THE TOTAL, ALL CAUSES COMBINED, OF INDEMNITIES, DAMAGES AND INTEREST, COSTS OF ANY NATURE THAT WOULD BE BORNE OR PAID BY MOOVENCY IN FAVOR OF THE CLIENT WITHIN THE FRAMEWORK OF EXECUTION OF THE CONTRACT, FOLLOWING A FINAL DECISION RENDERED BY A COMPETENT COURT, CANNOT EXCEED A GLOBAL CAP ALL DISPUTES COMBINED OF AN AMOUNT EQUAL TO FEES EXCLUDING TAXES PAID BY THE CLIENT AND COLLECTED BY MOOVENCY UNDER THE CONTRACT DURING THE TWELVE (12) MONTHS PRECEDING THE OCCURRENCE OF THE DAMAGE.

Furthermore, MOOVENCY cannot see its liability engaged particularly for:

> Damages caused to the Client and/or User and/or third parties resulting from any breach by the User of the provisions of the Contract and/or any legal or regulatory provision in force;
> Any difficulty accessing the Solution and/or Application Services due to non-compliance with an obligation of the User under the Contract and/or use of an incompatible Terminal;
> Any difficulty accessing the Solution resulting from a technical maintenance operation necessary for the proper functioning of Application Services and/or in case of data updating, Solution update or upgrade;
> All malfunctions, slowdowns, interruptions, impossibilities and/or poor access conditions to the SaaS Solution (i) due to the very nature of the Internet network, mobile
telephone networks and wireless networks and/or (ii) a failure and/or saturation of data communication networks (Internet, intranet, or wireless network);
> Contamination by viruses of Client Data and/or the Client’s Information System or erasure of Client Data, the protection and backup of which is incumbent upon the latter;
> Malicious intrusions by third parties on Client Data, despite security measures implemented by MOOVENCY;
> Misuse of the Solution and/or Services by the User or any use contrary to the intended purpose of the Solution (e.g. illegal surveillance of employees, etc.);
> Possible misappropriation of passwords, confidential codes, and more generally any sensitive information for the Client for which the latter assumes full responsibility;
> Any damage and degradation of access and/or use of the SaaS Solution resulting from the User’s refusal or delay in installing or deleting cookies necessary for its functioning;
> Any damage resulting from delay or absence of installation by the Client or User of any patch or Updates of the Solution made available by MOOVENCY;
> Modification of Deliverables by the Client after their export;
> Any breach of a Third Party License.

Article 16 – Verification – Audit Right

16.1. Verification

To enable MOOVENCY to improve the Solution, understand Users’ needs, prevent or correct the occurrence of anomalies, the Client authorizes MOOVENCY to access and analyze usage data of the Solution (duration and frequency of use, etc.).

In order to verify the compliance of the Client’s use of the Solution with the scope of the Purchase Order, the Client is informed that MOOVENCY reserves the right to integrate into the Solution, a control mechanism (particularly connection logs) or to implement a system for blocking access to the Solution in case of detection by MOOVENCY of non-compliant use of the Solution.

16.2. Audit

The Parties expressly agree that MOOVENCY may, at most once (1) per contractual year and with seven (7) days’ notice, appoint a member of its staff or an independent auditor subject to a confidentiality obligation to verify that the installation of the On-Premise Solution, access to the SaaS Solution and/or use of Application Services comply with the T&Cs. Audits will be conducted during normal working hours at the Client’s relevant premises and in compliance with security rules and/or internal regulations in force at said premises.

Article 17 – Force majeure

In case of force majeure within the meaning of Article 1218 of the Civil Code, MOOVENCY’s obligations under the T&Cs will be suspended for the entire duration of the force majeure event and will resume from the cessation of the latter.
Absence of access to the Solution and/or non-performance of Application Services attributable to a case of force majeure cannot be subject to any recourse. In case of occurrence of such an event preventing MOOVENCY from meeting its commitments, the latter undertakes to inform the Client as soon as possible.

Article 18 – Termination for Fault

Each of the Parties may terminate the Contract early in case of serious breach by the other Party of an essential obligation or repeated breaches of an obligation incumbent upon them under the Contract.
To this end, the Contract may be terminated ten (10) days after a formal notice by registered letter with acknowledgment of receipt addressed to the defaulting Party indicating the intention to apply this clause and remaining unsuccessful, without prejudice to any damages that the Party victim of the default may be entitled to claim.
The Contract may also be immediately terminated at MOOVENCY’s initiative, by simple written notification, by operation of law, without formal notice and without prejudice to any action by the latter for damages, in case of violation by the Client or User of the provisions of Article 8 “Intellectual Property”, Article 9 “Scope of Rights Granted”, Article 10 “User’s Obligations” and the non-transferability of the Contract agreed upon in Article 22.
Without prejudice to the exercise of any legal remedy or recourse, MOOVENCY may suspend or delete a User Account in case of detection of use of the Solution that would be non-compliant with the Contract or applicable law.

Upon expiration of the Contract or in case of early termination for whatever reason:

> Access to the Solution in SaaS mode and to Application Services is permanently deactivated;
> User Accounts are deleted;
> Client Data is retained or returned to the Client in accordance with the provisions of Article 20 “Reversibility”;
> The Client proceeds with the uninstallation of the On-Premise Solution.

In case of termination of the Contract for fault of the Client, the latter will owe MOOVENCY unpaid invoices at the date of termination and compensation corresponding to the totality of Fees remaining to be invoiced under the Contract until the expiration date of the current contractual period.

Article 19 – Consequences of Termination

Upon expiration of the Contract or in case of early termination for whatever reason:

Article 20 – Reversibility of Client Data

For the proper execution of Application Services, certain Client Data is hosted on MOOVENCY’s servers or those of the service provider of its choice within the framework of use of the SaaS Solution.
Upon expiration or in case of termination of the Contract, access to the Solution is closed on the last day of the Contract. The Client must therefore have, before this deadline, (i) retrieved Client Data accessible through the Solution’s functionalities or (ii) requested MOOVENCY to return it.
Unless a request for return of Client Data reaches MOOVENCY by registered letter with acknowledgment of receipt within thirty (30) days following the end date of the Contract, MOOVENCY will proceed with the destruction of Client Data.
Return will be carried out by transfer of encrypted computer files or on digital media, at MOOVENCY’s choice, in a standard “flat” file.

MOOVENCY may establish a quote in case of additional costs generated by the Client’s specific requests in relation to the transferability of Client Data (conversion to a complex format, etc.).
In any case, the reversibility procedure implemented by MOOVENCY under the Contract does not include assistance services for the Client in the recovery of their data by a third-party service provider or in migration to the services of another service provider.

Article 21 – Modification of the T&Cs

At any time during the term of the Contract, MOOVENCY reserves the right to modify the T&Cs to adapt them to any modifications made to the Solution and/or Application Services and/or to any legal or regulatory modification occurring during the term of the Contract.

Thirty (30) days before its effective date, any modification of the T&Cs relating to the characteristics of the Solution and/or Application Services will be communicated to the Client and User, (i) by email containing a hyperlink redirecting to the modified T&Cs or containing the T&Cs in PDF or compatible format, or (ii) in the form of a display in the User Account at the launch of the Solution making their use subject to acceptance by the User of the modified T&Cs.
In the event that the Client does not accept the modifications that have been notified to them, they have the option to terminate the Contract by registered letter with acknowledgment of receipt addressed to MOOVENCY before the effective date of the modified T&Cs. In this case and subject to payment of Fees, the Contract will produce its effects until the expiration of the current contractual period.

Any use of the Solution and/or Application Services after the effective date of the modified T&Cs will constitute unreserved acceptance of said modifications.

Article 22 – Miscellaneous Provisions

The Client accepts that MOOVENCY may, freely and without prior formality, subcontract all or part of its obligations under the Contract, under its responsibility. In case of subcontracting, MOOVENCY will remain solely bound by proper compliance with obligations subscribed under the terms of the Contract.

The fact that a Party does not avail itself at any given time of any of the clauses hereof cannot constitute a waiver to avail itself subsequently of these same clauses.
The nullity or inapplicability of any of the stipulations of the Contract will not result in nullity of other stipulations which will retain all their force and scope.
The Contract constitutes the entire agreement between MOOVENCY and the Client regarding the subject matter hereof. It cancels and replaces any other negotiation document, written or oral (particularly any confidentiality agreement), exchanged between the Parties prior to its conclusion, relating to the Contract. The Contract can only be modified in writing with the signature of both Parties.

In case of contradictions or differences between MOOVENCY’s General Terms and Conditions of Sale and Services and these T&Cs, MOOVENCY’s General Terms and Conditions of Sale and Services will prevail.
The T&Cs prevail over the Client’s general purchasing conditions, any additional, contradictory, or incompatible conditions that may appear on the Client’s purchase orders or other documents provided by one of the Parties to the other.
The Contract may not be assigned or transferred by the Client, in whole or in part, for consideration or free of charge, without the prior express written consent of MOOVENCY. MOOVENCY may freely assign or transfer the Contract without formalities to any company controlling MOOVENCY, controlled by MOOVENCY or under common control in accordance with the provisions of Article L.233-3 of the Commercial Code.

Article 23 – Applicable Law – Competent Jurisdiction

The conclusion, validity, interpretation, execution of the Contract and provision of Application Services are subject exclusively to French law.
MOOVENCY and the Client will endeavor to resolve amicably any disputes that may arise in relation to the validity, interpretation or execution hereof.
Any dispute relating to the conclusion, validity, interpretation, execution of the Contract and provision of Application Services, not previously resolved amicably, will be brought before the Commercial Court of Rennes (France).