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Terms & conditions

ARTICLE 1 - PREAMBLE

KEEPEEK is a company with expertise in solutions for collaborative management of asset files (images, videos, graphic documents...) or Digital Asset Management (DAM). As the first publisher in France to offer a DAM solution in SaaS mode, KEEPEEK enables the employees of a company to manage, share and distribute all the visuals necessary for graphic design via its software "KEEPEEK-DAM " or "Software ". 


The CLIENT wanted to opt for the use of an asset management software and approached KEEPEEK, which distributes this type of product. Following presentations of KEEPEEK-DAM, Q&A sessions and the submission of a commercial proposal, the CLIENT chose the solution proposed by KEEPEEK.

 

On the day of signing this Contract, the CLIENT received from KEEPEEK all the information attached hereto in order to make their decision with full knowledge of the facts.


ARTICLE 2 - DEFINITIONS

2.1   KEEPEEK-DAM  

Refers to the digital asset management system distributed by KEEPEEK in the form of an object code, and for which a license is granted to the CLIENT under this Contract, as well as its accompanying IT support, Documentation and Updates. Because KEEPEEK-DAM is a software available in SaaS mode, the license includes the hosting of the tool and its maintenance. 


2.2   Backoffice & Extensions

Back Office refers to the main software that is the core of the KEEPEEK-DAM platform. The Back Office is the minimum tool necessary to use the service. 

The KEEPEEK-DAM platform also offers API, Extensions and modules with different pricing models and maintenance conditions.


2.3   Documentation

Refers to the user manuals as well as those for the installation and use of KEEPEEK-DAM. The Documentation is provided in either electronic or paper format, depending on the resources available.

2.4   Updates

Refers to updates of KEEPEEK-DAM provided to the CLIENT by KEEPEEK. Updates do not include future versions, options or products that KEEPEEK may provide under the terms of separate licenses.


2.5   Designated website

Refers to the URL defined by the CLIENT allowing them to access the KEEPEEK-DAM service.


2.6   Technical Support

Refers to KEEPEEK-DAM's support services provided by KEEPEEK in accordance with the Technical Support policies in effect at the time the aforementioned services were requested.


2.7   CLIENT representative

Refers to the person or persons who are empowered to contact KEEPEEK to make requests for assistance or support.

2.8   Data

Refers to the CLIENT's digital data, whether the data be of a personal or non-personal nature, used by KEEPEEK-DAM and stored on the server made available to the CLIENT by KEEPEEK.

2.9   The Internet

The Internet is an open and informal network formed by the international interconnection of computer networks using the TCP/IP standard. Internet management is not submitted to any centralised entity. Each portion of this network belongs to an independent public or private body. Operating thereof relies on the cooperation between operators of the various networks; no provision or provision quality obligation exists between such operators. The networks may have unequal transmission capacities and specific use policies. None can guarantee the proper functioning of the Internet as a whole.

2.10  Media databases

Refers to the Data hosted on the server made available to the CLIENT by KEEPEEK.


2.11  Effective date

The date on which this Contract is signed.


2.12  Portal or front office

Refers to an extension of the KEEPEEK-DAM software allowing simplified distribution of content. The acquisition of this extension and its maintenance is the subject of a specific commercial offer.

2.13  Specific development

Refers to the software code created to meet specific customer needs. The acquisition of these specific developments and their maintenance is the subject of a specific commercial offer.

ARTICLE 3 - SUBJECT

The purpose of this Contract is to define the conditions under which KEEPEEK undertakes to make KEEPEEK-DAM available to the CLIENT, as well as the rules for its use and the respective responsibilities of the parties.


This Contract constitutes the entire agreement reached between the parties concerning the provision of KEEPEEK-DAM to the CLIENT by KEEPEEK. It supersedes all previously exchanged documents. The commercial proposal accepted by the Client is attached in APPENDIX II. 


Any other service not covered under this Contract and carried out by KEEPEEK for and upon the written request of the CLIENT will be the subject of either an amendment to this Contract, or of a purchase order, as well as a separate invoice with the understanding that the terms and conditions of this Contract will apply.

ARTICLE 4 - RIGHT OF USE OF THE KEEPEEK-DAM LICENSE 

KEEPEEK grants the CLIENT a non-exclusive, global, nominative right to use KEEPEEK-DAM on the server provided by KEEPEEK. This right of use is subject to the payment of a rental fee, included in the rent.. The right of use is granted for the duration of the Contract. It includes the following rights and obligations:

  • to use KEEPEEK-DAM only for the activities of the CLIENT, in accordance with the limitations specified herein, 
  • to use the Documentation provided with KEEPEEK-DAM for the purposes indicated hereinabove.
  • to allow third parties to use KEEPEEK-DAM for the exclusive needs of the CLIENT, the CLIENT being responsible for said use in accordance with this Contract.


The CLIENT is not authorised to sublicense or lease KEEPEEK-DAM, or to use it to train third parties. 


KEEPEEK shall maintain ownership of KEEPEEK-DAM and all rights not specifically granted to the CLIENT. The CLIENT does not acquire any other rights, explicit or implicit, than those provided for in this Contract.


The conditions and possible limitations of the right of use are specified in the commercial proposal.



ARTICLE 5 - HOSTING

5.1   Principles

KEEPEEK ensures a mutualized accommodation facility for KEEPEEK-DAM.

5.2   Infrastructure and security

The Media Database is hosted in a Data Centre located in France chosen at the discretion of KEEPEEK. KEEPEEK is solely responsible for the choice of the technical architecture, hardware and software used to host the Media Database.


KEEPEEK declares and will ensure that for the duration of the Contract this Data Centre has the highest level of protection and security available for this type of activity. Some of the security measures are described in Appendix V. Access to the site is carefully monitored. The CLIENT is not authorised to enter the Data Centre.


5.3   Continuity of service

KEEPEEK undertakes to make every effort to ensure the permanence, continuity and quality of the services offered, meaning: 

  • A 99.7% rate of availability, 24/7 (excluding scheduled maintenance interruptions)
  • In the event of downtime: an immediate resumption of services during working hours and under 8 hours outside working hours

The rate of availability is measured by an independent external probe. 

The availability rate excludes voluntary service interruptions designed to maintain and improve the platform as described below.


5.4   Updates and voluntary service interruptions

5.4.1  Update principles

In order to implement fixes and new releases, short interruptions to service regularly occur.


5.4.2  Interruptions for minor updates

Interruptions to service for updating software and database structures may be carried out daily after 8 p.m. This type of update will lead to interruptions of service for a maximum of fifteen minutes.


5.4.3  Interruptions pour major updates

Service interruptions for major updates (for example: installation of new software, implementation of a new version with major changes to the database, etc.,) occur at most twice a month. These interruptions take place on Friday evenings and can last for up to 3 hours.

An email will be sent to the CLIENT Representatives informing them of major updates at least 5 days before the update will take place.


5.4.4  Interruptions for infrastructure changes

Service interruptions to modify equipment and infrastructure take place at most once a month and can last up to 3 hours. An email will be sent to the CLIENT Representatives informing them of these updates at least 5 days before the update will take place.


5.4.5  Emergency interruptions

If absolutely necessary, KEEPEEK reserves the right to interrupt service to conduct a technical intervention for maintenance or improvement, to ensure the proper functioning of its Services, regardless of the time and duration of the intervention.


5.5     Backups

5.5.1  Principles

In order to maintain an optimal data security threshold, KEEPEEK commits to backing up data hosted on the servers.

The CLIENT's data will be backed up exclusively in order to deal with any incidents which might lead to a loss of data. Backups are not intended to archive data. 


KEEPEEK does a daily back up of all CLIENT data. Backups are stored in two separate locations. Files deleted by the CLIENT continue to be stored for 14 days after deletion. At the end of this period they are permanently deleted.


5.5.2  Restauration requests

A request for restoration of the database must be sent to KEEPEEK within a maximum of two (2) working days of the data loss being observed. In the event of a request by the CLIENT to restore data, once the request has been validated and confirmed by the CLIENT, the restoration time is 8 hours per TB of data. 


In the event that the loss of data is due to the actions of the CLIENT or one of its representatives, the restoration service will be invoiced based on the time spent according to the average daily rate specified in commercial proposal described in APPENDIX III. This clause applies in particular to the deletion of Data by the CLIENT which results from their use of KEEPEEK-DAM. In the event of the aforementioned case, KEEPEEK cannot be held liable except in the event of a breach of its obligations.


5.5.3  Annual data retrieval

As part of the hosting service, KEEPEEK retrieves Data from the Media Database on an annual basis. The purpose of this retrieval process is to enable the CLIENT to perform their own backups and thus ensure the durability of the Data beyond the backups performed by KEEPEEK. The CLIENT is responsible for making a request to KEEPEEK who agrees to provide the retrieval within 10 days of the request.

The cost of this retrieval is included in the leasing fees for up to one retrieval per year. This service does not include the purchase of any additional material, including physical media for transporting the Data, nor does it include any eventual costs related to the transport of this Data. Any additional request will be invoiced based on an agreed quotation.


5.6   Reversibility and data recovery

Should the contractual relationship be terminated, for whatever reason including at the request of the CLIENT, KEEPEEK undertakes to provide the CLIENT with all data (files and data) in a reusable format:

  • Record system for files
  • SQL or CSV files for data.

Except in case of termination for a cause attributable to KEEPEEK, this service is invoiced according to the volume of data: 1,5 working day for 1 TO, at the average daily rate mentioned in APPENDIX III.


5.7   Destruction of data

Upon return of this Data, KEEPEEK undertakes to destroy (at its own expense) all copies and backups that may have been made under application of this Contract.


ARTICLE 6 - TECHNICAL SUPPORT SERVICES

6.1   Technical support services

KEEPEEK provides a level 3 technical support service to answer any problems encountered during the use of the solution. Should the CLIENT encounter any difficulties in the use of KEEPEEK-DAM which requires KEEPEEK assistance, they may contact the KEEPEEK Technical Support Centre as follows. 


6.2   Functioning of the support team

KEEPEEK provides the CLIENT with two means of obtaining assistance:

  • By email: 24/7.
  • By telephone during office hours (9 a.m. to 7 p.m., 5 days per week) excluding public holidays.

The contact information for the support centre are provided in Appendix I.

The CLIENT agrees to appoint a maximum of three CLIENT Representatives empowered to contact KEEPEEK.

6.3   Levels of support

Support is split into three levels. KEEPEEK undertakes intervention for issues requiring level 3 support. The CLIENT will be responsible for responding to requests for level 1 and 2 support.


6.3.1  Level 1: End user assistance

Level 1 support is provided to end-users (visitors, occasional contributors). It also includes training on how to use the program. The CLIENT is responsible for ensuring this level of support. 


6.3.2  Level 2: Daily assistance

Level 2 support consists of the daily assistance provided to end users, such as, password renewal or the activation of access rights for a user who is having difficulty logging in to their account. The CLIENT is responsible for ensuring this level of support. 


6.3.3  Level 3: Technical assistance

In the event of an anomaly that is not covered by these first two levels of support, a CLIENT Representative is entitled to contact the technical support centre. Emails are the preferred means of communication for initiating the support process. If necessary, the support team will contact you in order to do a diagnostic. They will handle the request and track its progress until the correction of the anomaly. The use of the telephone is limited to emergencies or to the initiative of the KEEPEEK technician.


6.4   Severity levels

When a request is made for level 3 support, the CLIENT Representative and the KEEPEEK technician will together determine the severity level of the incident. The severity levels are as follows:

6.4.1  Level 1: minor issue

Level 1 on the severity scale implies a minor or wording anomaly, requests for clarification of the documentation, requests regarding long-term improvements, and requests for telephone assistance or recommendations.


6.4.2  Level 2: nuisance

An issue that is qualified as a nuisance is one that causes some of the program's features to be unavailable, but for which a workaround exists.


6.4.3  Level 3: serious issue

An issue that is characterized as serious significantly impacts the CLIENT's activity or renders important features unavailable, while no acceptable workaround for the CLIENT has been found. 


6.4.4  Level 4: Emergency and/or restrictive issue

An emergency and/or restrictive issue causes the complete shutdown of a CLIENT's system or renders the service unavailable. An emergency is considered to be an anomaly which prevents the use of KEEPEEK-DAM in its entirety, or which prevents the use of an important business process, or which has an immediate impact on the CLIENT's business.

Priority is given to issues deemed to be level 4 in severity.


6.5   Response times and SLA

6.5.1  Definitions

There are 3 time commitments expressed in hours or working days:

  • GRT: Guaranteed response time
  • GFRT: Guaranteed fault repair time (this may involve the implementation of a workaround)
  • GCT: Guaranteed correction time

6.5.2  Délais garantis

6.6   Services not covered under technical support

KEEPEEK is not responsible for providing support for third-party applications used by the CLIENT. KEEPEEK is not responsible for managing the CLIENT's hardware, supervisors, systems, or their network infrastructure. Under no circumstances will KEEPEEK be held liable for incidents resulting from anomalies related to these systems. 

Interventions by KEEPEEK technicians for issues arising from the use of these systems will be invoiced according to the time spent resolving them.

The intervention rates for a system engineer are given in the commercial proposal in APPENDIX III.


ARTICLE 7 - MAINTENANCE SERVICES

7.1   Principle of progressive maintenance

The CLIENT benefits, under this Contract, from Updates and new versions of KEEPEEK-DAM upon their availability. These versions include fixes and new features.

These updates do not include new modules or future software that are subject to a separate license agreement.


7.2   Progressive maintenance procedure for the Back Office

When a new version of the Back Office is available, KEEPEEK notifies the CLIENT Representative by email. KEEPEEK also notifies them of the expected date for the update and the time it will require. KEEPEEK supports the update of all new versions on its infrastructure. 

These regular updates of the platform concern exclusively the Back Office application. The frequency of these updates is linked to the mutualized nature of the Back Office.


7.3   Maintenance procedure for Extensions

Extensions are subject to progressive maintenance. However, since their deployment is not based on mutualization, they require the intervention of a system engineer. They are updated on a case-by-case basis, which may require adaptations due to the CLIENT's specific context. Adaptation and deployment services will be invoiced separately on the basis of quotations. 

This rule applies in particular to:

  • Portals and Front Offices
  • Plugins
  • Scripts
  • Specific developments

7.4   Request for changes

Any requests for changes specific to the CLIENT, not included in the updates and which would not be considered a correction, will be subject to a quotation.


7.5   Services excluded from progressive maintenance

These regular updates of the platform concern exclusively the KEEPEEK-DAM application. The frequency of these updates is linked to the mutualized nature of KEEPEEK-DAM. The other modules which are not based on a mutualized deployment are excluded from the automatic updates and are subject to case-by-case updates which will be invoiced separately on the basis of quotations. 

This rule applies in particular to:

  • Portals and Front Offices
  • Plugins
  • Scripts
  • Specific developments


KEEPEEK will only be responsible for providing the technical support and maintenance services as indicated in this Contract to the extent that KEEPEEK-DAM is used appropriately and in accordance with its purpose. In particular, KEEPEEK will not be responsible for providing the aforementioned services:

  • if KEEPEEK-DAM has been modified or if such an attempt has been made by a party other than KEEPEEK or,
  • if the inability to use KEEPEEK-DAM is due to the use of a program not covered by this Contract or,
  • If KEEPEEK-DAM is not used in accordance with its Documentation (as described in the KEEPEEK-DAM Licensing Contract).


ARTICLE 8 - RESPONSIBILITY OF KEEPEEK

KEEPEEK agrees to act diligently and to dedicate all the resources (specifically personal and technical), care and time necessary for executing the commitments made in the present contract and will ensure that there is an adequate insurance policy (see insurance document in appendix) in place to ensure that the CLIENT is covered for the risks associated with their activity. 


The parties expressly agree that:

KEEPEEK is only responsible for the commitments made in the present contract in a best-efforts obligation concerning access to the services that depend on the Internet.

KEEPEEK may in no event be held responsible for interruptions in service and damages connected to:

A case of force majeure;

Abnormal or fraudulent use by the CLIENT which requires the suspension or stopping of the service for security reasons;

KEEPEEK-DAM  malfunctions that result from improper use by the CLIENT;

Intrusion or fraudulent maintenance from a third party on the servers where the Media databases are stored, or the illicit extraction of Data, despite the implementation of security measures that conform to current data on these measures,

The nature and content of the Data created and/or sent by the CLIENT.


KEEPEEK may not be held responsible if the servers it uses to store Data are unavailable due to reasons such as failing of the public electricity distribution network (beyond the independent duration of the alternating current failsafe system and the KEEPEEK generator), or of the public telecommunications network, or to loss of internet connectivity due to the public and private operators that KEEPEEK reasonably relies on.


KEEPEEK may only be held responsible upon the declaration of real, direct, damages by the CLIENT, on the condition that the CLIENT can provide evidence that the cause of these damages is due to a fault or lack of provision on the part of KEEPEEK. KEEPEEK may in no event be held responsible for indirect damages, ie. any damage that is not caused directly by the partial or total failing of the service provided by KEEPEEK. Indirect damages are considered to be: loss of orders or turnover, infringement of the brand image, loss of profits or clients, operating losses.


ARTICLE 9 - RESPONSIBILITY OF THE CLIENT

9.1   Updating the Media Database

The CLIENT assumes responsibility for their use of KEEPEEK-DAM. The CLIENT will bear the consequences of any use of KEEPEEK-DAM that does not comply with KEEPEEK recommendations.

9.2   Protection of access

The CLIENT guarantees, on their own behalf as well as that of their staff or any third party chosen by them, the proper use of the access provided to them and the non-disclosure of passwords and other details which ensure that the user has secure access to servers. 


9.3   Content

The CLIENT absolves KEEPEEK from all liability other than those resulting from this Contract regarding the content of the Media Database. As such, the CLIENT undertakes to use the services of KEEPEEK solely for lawful purposes and to comply with all applicable regulations regarding the dissemination of information and services on the Internet.


The CLIENT is in particular prohibited from using KEEPEEK-DAM to process, disseminate, download, or transmit Data whose use would violate any intellectual property right or any proprietary right of others or which, in general, would infringe the rights of third parties. 


More specifically, the CLIENT undertakes to not host on KEEPEEK-DAM any content that:

  • is contrary to public order and morality
  • is abusive, defamatory, racist, xenophobic, revisionist or that attacks the honour or reputation of another person
  • incites hate or discrimination against a person or group of people on the basis of their gender, origin, ethnicity, nationality, race or religion deemed threatening to a person or group of people
  • is pornographic or paedophilic or zoophilic in nature
  • constitutes an incitement to the committing of a crime, violent acts, a crime or an act of terrorism or promotes war crimes or crimes against humanity
  • enables a third party to directly or indirectly procure pirated software, software serial numbers, software enabling acts of piracy and intrusion into computer or telecommunications systems, viruses and logic bombs and generally speaking any software or other means making it possible to infringe the rights of any person and the security of persons and property
  • is in violation of the private nature of correspondence


In case of breach of one of these provisions, and after a formal notice has been issued by KEEPEEK via registered mail with confirmation receipt unanswered after a period of fifteen (15) days, KEEPEEK will be entitled to terminate the Contract according to the Termination Conditions.


The termination of the Contract for the reasons stated in the above-mentioned paragraph of this article will not give right to the payment of any compensation. The CLIENT shall remain liable to KEEPEEK for the sums due for the remaining period of the duration of the hosting service. 


The CLIENT agrees to comply with the rules governing the use of the Internet, particularly in regard to email marketing. In case of non-compliance with these uses which results in complaints from Internet users or administrators, KEEPEEK will be entitled to terminate the Contract according to the Termination Conditions without prejudice to the sums due for hosting the Websites.


ARTICLE 10 - FINANCIAL TERMS AND PAYMENT METHODS

10.1   Leasing, hosting, maintenance and support fees

The lease payments due from the client correspond to the following services:

  • the right to use KEEPEEK-DAM;
  • hosting of the Media Database.
  • support 
  • progressive and corrective maintenance for KEEPEEK-DAM’s Back Office;


The lease is fixed according to the use of resources. The leasing fee and the limitation and adjustment rules are specified in the commercial proposal in APPENDIX III.


10.2   Paiement terms

Unless otherwise stipulated in the Order Form, leases are invoiced annually on the date of signing of this Contract. Invoices are payable at thirty (30) days end of month.


10.3   Exceeding thresholds and limitations

In the event that the limitations set out are repeatedly exceeded, KEEPEEK will inform the CLIENT by email. This clause applies in particular to the use of disk space and bandwidth. The CLIENT will have 30 days to rectify the situation. After this time period, KEEPEEK will be entitled to ask the CLIENT to pay a sum corresponding to the excess usage based of the amounts indicated in the commercial proposal in APPENDIX III.

 

10.4   Price validity

All prices are exclusive of French and foreign taxes, the invoices issued by KEEPEEK reflect the tax and social security provisions in force and should they be modified, the resulting price changes would be applied to the first invoice issued as of the date that the new legislation entered into force.


10.5   Price adjustment

The price for the monthly leasing and any eventual excesses observed on  the CLIENT's sites is linked to the SYNTEC index and may be revised annually on the anniversary of the date of signing of this Contract using the following formula: 

P = P0 x L1/L0

P = new revised price

P0 = price when the order form for hosting services was signed

L1 = last known SYNTEC Index at the time that the new price was established

L0 =SYNTEC base index of the month in which the order form for hosting services was signed


In any event, the application of this formula cannot lead to a yearly price increase of more than 2%.


10.6   Late penalties

Any amount not paid at the end of the term will result in the payment by the CLIENT of penalties equivalent to three times the legal interest rate per day of delay. These penalties are automatically due. 


A lump sum compensation for recovery costs, in the amount of forty (40) euros will be rightfully and without prior notice due by the debtor in the event of late payment. An additional compensation can be claimed on evidence when the recovery costs exceed the amount of the lump sum.


ARTICLE 11 - EFFECTIVE DATE AND DURATION

This Contract shall enter into force on the execution hereof and is concluded for a period of two (2) years.

At the end of this initial period, this Contract will automatically be renewed for successive one-year (1-year) periods, barring termination of the Contract by one of the parties via registered letter with confirmation of receipt at least two (2) months prior to the expiry of the term. In the event of non-termination under these terms, the Contract is renewed for a year, during which each of the parties commits to honour its commitments and in particular the payment.


ARTICLE 12 - TERMINATION

In the event of failure by either party to comply with any of its obligations of this Contract, this Contract will be automatically terminated - without the intervention of a judicial authority – one (1) month after the non-defaulting party sends a request to remedy the breaches found by registered mail with confirmation of receipt unanswered.


This termination does not release the CLIENT from its contractual obligations and all sums due, plus default interest calculated on the basis of three times the legal interest rate. 


In the event of termination for cause attributable to KEEPEEK, the latter undertakes to reimburse the CLIENT the cost of leasing on a pro rata basis from the effective date of termination.


ARTICLE 13 - OWNERSHIP AND DATA PROCESSING

13.1   Ownership

The parties agree that the Data processed, hosted, backed up or stored by KEEPEEK on behalf of or by the CLIENT is and remains the exclusive property of the CLIENT.

13.2   Processing of personal data

If the Data is considered to be personal data with regard to the provisions of French Law No. 78 17 of 6 January 1978 as amended by Law No. 2004 801 of August 6, 2004, the CLIENT undertakes to respect all of their obligations in their capacity as controller in accordance with the aforementioned legislation. The CLIENT undertakes, as such, to comply with the obligations for disclosure and/or authorisation required for personal data by the National Commission for Information Technology and Civil Liberties.

KEEPEEK undertakes to process personal data in accordance with APPENDIX II (GDPR).


ARTICLE 14 - OWNERSHIP, GUARANTEES, LIMITATIONS, RECOURSE, INSURANCE

14.1   Ownership

The CLIENT acknowledges that KEEPEEK holds all rights to KEEPEEK-DAM, as well as to its Documentation, on any medium whatsoever. KEEPEEK undertakes to respect the rights of third-party publishers for which it is licensed to operate software solutions integrated into KEEPEEK-DAM.


This Contract does not grant any property rights or any other intellectual property rights, in particular copyrights, trademark rights or rights of expertise relating to KEEPEEK-DAM and to its Documentation.


Consequently, the CLIENT is prohibited, directly, indirectly or through any intermediary of a subsidiary, affiliated company, parent company or any agent or third party, from:

  • creating any transcript of KEEPEEK-DAM in other languages, any adaptation for use on a site other than the Designated Website authorised under this Contract;
  • transferring, providing or leasing KEEPEEK-DAM and its documentation to a third party, for any reason whatsoever, even if this is done free of charge;
  • decompiling, disassembling or reverse engineering KEEPEEK-DAM;
  • transferring use rights granted under this Contract, even free of charge. To provide this protection, the CLIENT undertakes in particular to keep the proprietary notices that appear on KEEPEEK-DAM visible.

14.2   Intellectual property guarantee

KEEPEEK guarantees the CLIENT that its services and, in particular, KEEPEEK-DAM, do not infringe any industrial or intellectual property rights of third parties. KEEPEEK will defend and indemnify the CLIENT for any infringement claim brought against the CLIENT as a result of any infringement by KEEPEEK-DAM of an intellectual property right, provided that the CLIENT notified KEEPEEK of said infringement as soon as possible following its discovery, and provided assistance and the means necessary to fulfil its obligations under this clause. KEEPEEK will reimburse reasonable expenses incurred by the CLIENT for providing such assistance. KEEPEEK will not be held liable for the use of versions of KEEPEEK-DAM that are no longer in KEEPEEK's catalogue or that have been modified, if the sanction could have been avoided by using the current and unmodified version of KEEPEEK-DAM, made available to the CLIENT by KEEPEEK free of charge.


If KEEPEEK-DAM was deemed to be infringing, by a court judgment which has the force of res judicata or by KEEPEEK, KEEPEEK may either modify KEEPEEK-DAM so that it ceases to infringe the rights of third parties, or obtain a license that allows the CLIENT to continue using KEEPEEK-DAM. If neither of these actions is commercially reasonable, KEEPEEK will terminate the license to KEEPEEK-DAM and reimburse the CLIENT for the license fees paid for KEEPEEK-DAM. 


14.3   Warranty and Limitation of Warranty

KEEPEEK guarantees that its services and KEEPEEK-DAM comply with the existing legislation and that KEEPEEK-DAM will fulfil, unless it is modified, the functions described in this Contract and in the Documentation attached. This warranty is valid for the duration of the Contract.


The above warranties are limited, and - except as indicated in its Documentation - KEEPEEK does not guarantee KEEPEEK-DAM's ability to meet the CLIENT's individual objectives, nor its operation in any combination other than those indicated in the Contract or in the Documentation. KEEPEEK does not guarantee uninterrupted or error-free operation.


14.4   Recourse

Should the CLIENT invoke the warranty, KEEPEEK's liability will be limited as follows:

  • to the correction of the responsible errors, in case of non-compliance. If KEEPEEK is unable to operate KEEPEEK-DAM according to the terms of the warranty, the CLIENT may terminate the license and the fee paid will be refunded.
  • as it relates to the replacement of faulty computer equipment.
  • to providing the guaranteed service, in the event of faults in the service previously provided. If KEEPEEK is unable to provide services according to the terms of the warranty, the price paid for unsatisfactory services will be refunded to the CLIENT.

14.5   Insurance

KEEPEEK certifies having taken out professional liability insurance for all services related to this Contract and necessary for coverage of the responsibilities described in the Contract. KEEPEEK will provide proof of insurance coverage upon first request by the CLIENT.


14.6   Limited liability

None of the parties may be held responsible for indirect damages, including the loss of profits, revenue, incurred by the other party of a third party, even if the possibility of paying such damages has been discussed by the two parties.


Unless contrary legal provisions exist, KEEPEEK's responsibility for direct damages under the present contract may not exceed the amount of the annual fee paid by the CLIENT as part of the present contract  and to the extent that such damage results from the use of KEEPEEK-DAM or services, the amount of the price paid by the CLIENT for KEEPEEK-DAM or the services that caused the damage. The provisions of this contract allocate the risk between KEEPEEK and the CLIENT. The agreed prices reflect this risk allocation and the resulting limitation of liability.


ARTICLE 15 - GENERAL PROVISIONS

15.1   Heading  

In the event of any contradictions arising between a clause heading and a clause, the heading will be declared non-existent.


15.2    Confidentiality

The parties, in application of this Contract, might have access to the confidential information of the other party. Confidential information is any information that is unavailable to the general public, or more generally, accessible to the latter and which concerns the activity or business affairs of one of the Parties herein, including but not limited to, the terms and prices of this Contract, KEEPEEK-DAM and more particularly all Data and information contained in the Media Database.


The following shall not be considered as Confidential Information: 

  • information that is already known to the receiving Party or independently established by each party,
  • information disclosed in publications,
  • information generally available to the public,
  • information that has been legally obtained from a third party, or
  • information disclosed under a provision or recommendation of the law.


The CLIENT will not disclose the results of the KEEPEEK-DAM trial to any third party without the prior written consent of KEEPEEK.


The party to whom confidential information is provided will ensure its confidentiality with at least the same level of care taken in maintaining the confidentiality of their own confidential information, and will not be able to communicate or disclose it, without the prior written consent of the other party. The parties agree not to communicate confidential information in any way whatsoever to third parties, except as may be required by law. The parties agree to adopt all reasonable measures to ensure that confidential information is not communicated to their employees or subcontractors that would be in breach of this Contract. The terms of this obligation are valid for the duration of this Contract and for the five (5) years following its end.


15.3   Waiver clause

No waiver by either Party of any of its rights under the Agreement shall constitute a waiver in the future of such right.

15.4   Notices

All notices required by this Contract will be made in writing and shall be deemed duly given to the addresses specified at the beginning of this Contract, unless a change of address notice has been communicated.

To facilitate their processing, KEEPEEK will consider orders received by email as original copies, with each of the parties nonetheless having the right to request the original signed copies from the other.


15.5   Partial nullity

If any of the provisions of this Contract should be invalid or declared as such by a competent authority, the validity of the other provisions and of the entire Agreement shall remain in full force and effect.


15.6   Tolerance

Tolerance of one of the parties as to noncompliance with any obligation by the other party shall not mean future tolerance of the same or other breaches and may not be interpreted as an abandonment of their right to oppose the other party for the breach.


15.7   Full agreement

This Contract contains the entire agreement between the parties with respect to its subject matter, and supersedes all agreements relating to the same subject matter. No amendment to this Contract shall be made except in writing and signed by the representatives authorised by each party; no other document, action or use will be effective for modifying the content. This Contract supersedes all other documents unilaterally prepared by any of the parties. It may only be amended by an amendment signed by the authorized representatives of the Parties.


15.8   Contractual documents

The contractual relationship between the Service Provider and the Client is governed by the following documents, presented in hierarchical order of decreasing legal value:

  • This document and any amendments thereto
  • The appendices 

In the event of a conflict between documents of different rank, it is expressly agreed between the Parties that the provisions contained in the higher rank document shall prevail over those of the lower rank document for any conflict of interpretation.


15.9   Non-Assignability

Neither KEEPEEK nor the CLIENT has the right to transfer or assign all or part of their rights or obligations under this agreement or substitute a third party in the fulfilment of their obligations without the prior and express consent of both parties, which shall result in the creation of an additional clause to this Contract. This clause shall not be applicable in the event that the relevant third party is a member of the same business group as KEEPEEK or the CLIENT. In this case, the transfer of the rights and obligations of either party will be indicated in an amendment to this Contract.

Neither party may object to the transfer of the rights and obligations of the Contract between companies of the same group.


15.10   Social regulation

KEEPEEK undertakes to respect and ensure compliance with the social and tax regulations in force by its staff and potential subcontractors, particularly in the fight against illegal work, and to make all its legal declarations to the respective social and tax administrations.


15.11   Regulation and Sustainable development

KEEPEEK makes the following commitments (and will transmit them to any intermediaries, subcontractors or suppliers which they use/in the performance of the Contract):

  • to ensure the absence, in the company, of demeaning practices such as psychological and sexual harassment;
  • to ensure the absence of child labour (defined as anyone under the age of fourteen or above the age of fourteen who has not completed compulsory education); 
  • to ensure the absence of discrimination, notably with respect to origin, gender, sexual orientation, age, religious affiliation, physical appearance, health or disability status or trade union membership;
  • to ensure the absence of forced or compulsory labour, defined by the ILO as being any work or service which is exacted from any person under the threat of a penalty and for which the person has not offered himself or herself voluntarily; 
  • in the absence of a legal minimum wage, to ensure that its employees have a salary level that allows them to have decent living conditions, and which takes into account the cost of living in the place of establishment; 
  • to comply with the principles of the Universal Declaration of Human Rights, including freedom to form and join trade unions, in accordance with the applicable legal provisions; 
  • to comply with regulations applicable to environmental protection, namely in refraining from the use of certain products and processes, and by using or offering to use if possible eco-labelled products;
  •  to manage and limit environmental impacts related to its activity, namely by reducing its energy and water consumption and its greenhouse gas emissions, by reducing and re-using its waste, by preserving biodiversity, and by using environmentally-friendly technologies; 
  • to prevent and detect, through effective measures, the practice of active or passive corruption (including extortion and bribery), the illicit use of connections in public office, both with respect to suppliers and with respect to the instructing party and to notify the CLIENT as soon as it is informed, or has reasonable grounds to believe that an activity carried out in connection with this Contract is in breach of or could violate any anti-corruption regulation of the territories in which KEEPEEK operates;
  • to comply with the guiding principles of the OECD, the UN and the fundamental ILO Conventions.


ARTICLE 16 - APPLICABLE LAW AND COMPETENT COURTS

This Contract is subject to French law. In case of failure by one of the parties to fulfil the agreement, any dispute will be subject to the exclusive jurisdiction of the Commercial Court of Paris, including emergency proceedings and in the event of multiple defendants.

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