ATL SOFTWARE has developed a software solution to manage the students of an educational institution, including: registration, course management, professors, registration of examination notes, generation of accounting and statistical reports on registrations (hereinafter “the Application”).
The Application is offered, in particular to educational and training institutions, and is accessible to users via the Internet, in “SaaS” mode.
The purpose of these General Terms and Conditions is to define the conditions under which ATL SOFTWARE will provide to the Client Application Services.
Defined terms shall have the meanings set forth below:
- “Center” : educational institution managed by the Client with which the Students are registered
- “Client” the legal entity having issued an Order or accepted a Offer issued by ATL SOFTWARE;
- “Contract” : the Contract is formed by (i) the Order and (ii) these General Terms and Conditions. In case of discrepancy, the provisions of the Order shall prevail over the General Terms and Conditions.
- “Order”: a purchase order issued by the Client on the basis of the Offer; or the Offer signed and accepted by the Client;
- “Offer”: the commercial proposal made by ATL SOFTWARE including the description of the Application Services, including the financial conditions.;
- “Students” : natural persons registered with an institution of the Client completing a training provided in this institution
- « Error » : a dysfunction in the Service, that makes impossible (alone, or combined with others) any normal use of any or all functionalities of the Service.
- « Application Services », or « Services » : all services including license to use the Application and Support services, through web access, and without any physical set up of the Application at the Client’s premises (“SaaS mode”).
- « Application » : the “Rainbow” software for the management of educational institutions, including an administrative management module and an optional online registration module for courses and training sessions (“Kiosk”) hosted by ATL SOFTWARE and made available to the Client, its Users and Students;
- « Assistance » : on-going assistance services of Users, in their use of the Application, provided by ATL SOFTWARE by telephone, email or any other appropriate form;
- « Corrective Maintenance » : correction of Errors affecting the Application;
- « Data » : Data of the Client, or inserted by the Client into the Application, processed by ATL SOFTWARE, while performing the Service, including personal data of the Users, as well as, in general, any Data generated and hosted by the Application;
- « Evolution » : Updates and New Releases of the Application;
- « New Releases » : major version of the Application including new functionalities compared to the functionalities of the current version, without scale back of existing features.;
- « On Going Maintenance » : delivery of Evolutions of the Application.;
- « Server » : remote web server, hosted by ATL SOFTWARE, or its subcontractor, on which the Application is installed and runs, and that may be accessed from User’s devices.;
- « Support » : includes Corrective Maintenance, On-Going Maintenance and User Assistance services
- « Updates » : minor versions of the Application including Error corrections and improvement of current functionalities decided by ATL SOFTWARE;
- « Users » : persons, under the authority of the Client (teachers, administrative staff) authorized to use the Services and owning to this effect a User Account, excepted the Students;
Unless otherwise agreed to in writing, any Order issued by the Client or any acceptance by the Client of an Offer issued by ATL SOFTWARE implies and results in the full acceptance of the hereby General Terms and Conditions to the exclusion of all other document issued by the Client.
These General Terms and Conditions shall prevail over any other document or particular condition specified by the Client and shall not be enforceable against ATL SOFTWARE unless formally accepted by the latter.
The supply of Application Services shall start from the date and for the term specified in the Contract.
After expiration of the initial term the Contract will renew automatically for additional twelve (12) months period (s) unless written notice is given by registered letter with return receipt by one Party to the other as to its attention not to renew this Contract at least thirty (30) months prior to the end of the initial or any subsequent term.
5. Access to the Services
5.1. Scope of use of the Services
The Services are provided for a limited number of Centers and Students as specified in the Offer.
For each new Center or increase of the number of Students, the Client shall pay an additional fee, as set forth in the Offer based on the reached thresholds.. The new fee shall be effective from the anniversary date of the Contract; being understood that the increase for the current year will be immediately invoiced prorata temporis.
5.2. User Accounts
The Services are provided for an indefinite number of Users.
ATL SOFTWARE will proceed to the settings and configuration of the Users Account.
Upon the Client’s request, administration rights may be granted to an User that may then open, close and manage the User Accounts.
Access to the Service for Users shall be effective within 48 working hours from entry into force of the Contract or from a request for opening a new User Account.
Each User is assigned a user Id and a password to access the Application Services. The Client shall be liable for the use and confidentiality of the User Ids and passwords by the Users, and shall ensure that access to the Services is granted only to authorized persons.
The Client shall inform ATL SOFTWARE without delay in case of a security breach, in particular in case of willful communication or misappropriation of User Ids or passwords, so that ATL SOFTWARE can take any necessary and appropriate steps in order to remedy such breach. More generally, the Client shall be liable for the security of the individual access points to the Service.
5.3. Students Accounts
The Students may access to some limited functionalities, as described in the Offer. The Students Accounts are opened by the Students under the Client’s liability.
The user Id are assigned and managed by the Client under the conditions set forth in Section 5.2.
5.4. Technical Pre-requisite
Using the Application Services requires access by the Client to a telecommunications network. This service is not included in the Application Services and will be provided by a telecom operator chosen by the Client, under its sole responsibility. 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.
Users shall access to the Application through a recent web browser, in compliance with ATL SOFTWARE technical perquisites, such as indicated to the Client by email or in the Application on line assistance, which may be updated at any time.
The Users may use the Service via desktop or laptop computer, provided a compatible web browser is used.
6. Installation and Configuration of the Application
Unless otherwise agreed by the Parties, ATL SOFTWARE shall carry out settings and configuration of the Application, including the Users Accounts in order to fit User’s specific needs.
Following this configuration, ATL SOFTWARE shall provide a training session for Users of the Service, upon previous quotation.
7. Service Availability
7.1. Guaranteed availability and grounds for interruption of the Service
ATL SOFTWARE shall take all necessary steps to obtain a 99.9% availability rate of the Service. This availability rate is measured per year, from Monday to Friday on working hours (8am to 8 pm UTC-04). This rate represents an unavailability of 8h45 for an annual period, excluding the following events, which shall not be taken into account when assessing the availability rate:
- – network disruptions, or on ATL SOFTWARE’s servers or those of its subcontractors,
- – preventive maintenance operations on the server infrastructure,
- – interruption of the Service by a court or judicial or governmental authority of competent jurisdiction.
The Client is informed that the connection to the Services is made via the Internet. He is warned of the technical risks that may affect this network and lead to slowdowns or unavailability making the connection impossible. ATL SOFTWARE may not be held responsible for the difficulty of accessing the Services due to disturbances of the internet network.
Moreover, ATL SOFTWARE may suspend access to the Application Services for maintenance operations in order to ensure the efficient operation of the Services. Such operations shall be planned, and ATL SOFTWARE will inform the Client by email with a 48 hours notice and indicate the nature and duration of such intervention. Those interventions shall occur either on week ends, or between 9 pm and 6 am during the week.
Moreover, in case of a security breach were likely to seriously jeopardize security of the Service and of the Client’s Data, ATL SOFTWARE may proceed, without notice, to such maintenance operations and interrupt operation of the Service, in order to remedy such breach as soon as possible. In such a case, the Client may not claim any compensation nor hold ATL SOFTWARE liable for such interruption, on any ground whatsoever.
ATL SOFTWARE ensures the supervision of the Service and is alerted in case of Error identified by the supervision.
In case the unavailability period set forth above were exceeded, ATL SOFTWARE shall be liable to the Client of a penalty based on the annual fee, as a prorata of the exceeding unavailability on the said period, such penalty being set as followed: P = N x R/365, where
- P= penalty
- N= number of days where the Service was unavailable (any period less than 24 hours being counted as a day)
- R= annual fee
This penalty will be deducted from the Client’s next invoice.
Such penalty shall be in any case capped to 1/12th of Service annual fee and shall be deemed as a full discharge of ATL SOFTWARE’s liability. Consequently, the Client waives any rights or remedies relating to the unavailability of the Service.
8. User Training
Upon request from the Client, ATL SOFTWARE may organize training sessions for Users, on the use of the Application. These sessions shall be made on site or remotely by teleconference or by any other mean.
Such training will be invoiced in addition to the fees for access and use of the Services, and upon acceptance of quotation. Transportation, housing and catering costs shall be, if applicable, invoiced in addition to the training session itself.
9. On Going Maintenance
In consideration for payment of the annual Service fee, ATL SOFTWARE will regularly deliver Updates and New Releases of the Service (“Evolutions”) as soon as they are released. These Evolutions shall be delivered, without exclusivity, to all Clients of the Service.
ATL SOFTWARE shall give prior notice to the Client of any Evolution that may imply a modification of its technical environment. ATL SOFTWARE warrants that delivery of Evolutions will not affect performances of the Application, provided that the Client complies with ATL SOFTWARE technical pre-requisites regarding hardware and software configuration on User’s work stations.
The Evolutions will be installed by ALT SOTWARE on the remote Server hosting the Application. ATL SOFTWARE shall implement Evolutions, to the extent of its possibilities, on non working hours or days; either on Saturdays, Sundays, or public holidays; or before 9 am, or after 9 pm (Client’s local time). By default, the Parties shall agree on a date and hour for such installation, in order to disturb as short as possible access to the Services by the Client.
Some features may have modified operating procedures following an Update or a New Release, as long as those modifications do not reduce the solution features, and as the scope of Application remains unchanged. ATL SOFTWARE reserves the right to make any amendments on the name, implementation, look and feel, settings, access conditions, or location of a function in the Service. Any evolution, update, or patch, shall be made in view of an enhancement or optimization of the Service, and in particular of the security and reliability of results obtained.
At Client’s request, ATL SOFTWARE may set up, on quotation, a training on Evolutions of the Application.
10. Specific Developments
Any request for evolution or a specific development made by the Client may be, at ATL SOFTWARE’s discretion, included in the Application’s Roadmap (i.e. the schedule of Updates and New Releases of the Application, as defined by ATL SOFTWARE), without any guarantee on delivery times. Such new features shall then be integrated in Evolutions delivered by ATL SOFTWARE in accordance with this Contract, without any additional cost.
If, however, the Client wishes to have an evolution developed in a specific time, ATL SOFTWARE shall establish a Offer for such evolution, specifying a delivery time and general description of the features needed, with an impact assessment on the Application, provided that this development will be compatible with the development strategy for the Application. Upon acceptance of the Offer by the Client, the development shall be made and delivered within the time, and in consideration for the price specified on the Offer.
ATL SOFTWARE shall retain ownership of all intellectual property rights on any specific developments, made in performance with the Contract, that may be available to all clients of the Application.
11. Corrective Maintenance
ATL SOFTWARE undertakes to provide corrective maintenance of the Service, in order to correct Errors that may affect the Application, as soon as possible.
11.1. Support Process
The Client shall send its request for support:
- Either by email at the following address: firstname.lastname@example.org
- Or by telephone at:
- -(+1) 786 272 0233 (USA)
- – (+33) 5 33 52 20 61 (France)
- – (+1) 829 956 0031 (Dominican Republic)
Opening Hours : ATL SOFTWARE warrants that any technical incident shall be supported by corrective maintenance services during opening hours, from 8 am to 5 pm, (UTC-04) from Monday to Friday. Any support request sent outside these hours shall deemed made the next working day at 8 am (UTC-04)
Technical referent : the Client shall designate a single technical referent within his staff, who will be charged to ensure the follow-up of all assistance and support requests made by Users, and to facilitate their treatment by ATL SOFTWARE. This technical referent shall be ATL SOFTWARE’ s main contact for all assistance or support request for the Application.
11.2. Corrective Maintenance Operations
11.2.1. Error Classification
Errors are qualified depending on their critical level:
Level 1 (Critical): The Service is not available (down).
Level 2 (Serious): The Service still works but in a downgraded mode ; or significant features of the Service ( such as : registration of the Students, invoicing, payments,) are not available.
Level 3 (Medium): Errors are affecting the Service ; or non essential features (such as invoices and receipts printing) are not available.
Level 4 (Minor): Request for improvement or « cosmetic » error.
ATL SOFTWARE reserves the right to amend the critical level declared by the Client when notifying the Error, on the basis of the above criteria.
11.2.2. Analysis times
Error analysis shall be carried out within a maximum of 4 worked hours from its notification by the Client , under the conditions set forth in the section 11.1.
11.2.3. Resolution times
ATL SOFTWARE undertakes to correct the Error and restore the Service within the following times:
For the module “Kiosk”:
Error level 1: 24 hours delay
Error level 2: 2 days delay
Error level 3: 1 week delay
Error level 4: No commitment
For the other modules:
Error level 1: 24 hours delay
Error level 2: 2 days delay
Error level 3: 1 week delay
Error level 4: No commitment
All intervention times indicated above are in hours or working days, and run from the written notification by ATL SOFTWARE to the Client.
ATL SOFTWARE shall have no obligations in terms of intervention times under Corrective Maintenance in connection with any Errors caused by:
- – Environment and third parties software configuration on the User’s work stations
- – Inadequate specifications of User’s work stations, in particular as regards memory capacity, disk space, or any other device necessary for running the Service, as specified in the Offer, or any other contractual document,
- – Errors due to third party software products installed on User’s work stations;
- – A failure or a problem resulting from any intervention or manipulation carried out by the Client and / or a third party on work stations that would prevent the Service from running correctly,
- – Inadequate Internet connection, not complying with ATL SOFTWARE’s prerequisites, as mentioned in the Offer.
Moreover, maintenance may not imply maintenance operations or assistance to the use of third party software, not supplied by ATL SOFTWARE.
More generally, any intervention by ATL SOFTWARE for a non-supported Error or for a service not included in this Contract shall be made on quotation.
- – Installation, re-installation or configuration of the Service, of modules or specific components,
- – Updates of third party systems non installed by ATL SOFTWARE
- – Installation of third party systems non developed by ATL SOFTWARE
- – Back-up restoration not resulting from an Error related to the Application,
- – Users’ training,
- – Specific developments and their installation, and/or settings,
- – Customization of the layout of printing documents (invoice, receipt, certificates,…)
- – Customization of evaluation forms
- – Data import
- – Data export
- – Connection of the Application to third party systems (API)
- – Connection of the Application to PMB, Moodle software…..
- – Reconfiguration of the Application (database cleaning, duplicates management, change of currency, data collection, etc…)
Errors due to non supported incidents may not entitle the Client to suspend payment of Service fees, and their correction shall be invoiced according to hourly fees set forth in the Offer.
12. User Assistance
ATL SOFTWARE will provide to Client all necessary assistance with the settings and use of the Application and its Evolutions, under the conditions set forth hereafter. This Assistance is intended to answer User’s technical questions related to the use of the Service.
The Client will make its request by email or by phone to Customer Support Center under the conditions set forth in the “Support Procedure” Section.
ATL SOFTWARE shall process such request within 24 hours from its notification.
Assistance is included in the Service Fee set forth in Section 13, up to the threshold of Assistance per month specified in the Offer. If this threshold is exceeded, ATL SOFTWARE shall charge for the time spent in this Assistance, based on the hourly rate set in the Offer.
Under no circumstances may the telephone support provided for in this article be a substitute for the training offered by ATL SOFTWARE for the use of the Application.
13. Service Fees
13.1. In consideration for the Application Services provided by ATL SOFTWARE the Client shall pay to ATL SOFTWARE a Service Fee, including :
- – annual Service fee, based on the number of Centers and number of Students in all Client’s Centers, as indicated in the Offer;
- – annual Processing fee for each registration of a Student for a course available in the Application (used and set up by the Client), paid online.
13.2. For any addition of a Center during the course of the Contract, the Client shall pay an additional fee to be agreed upon.
13.3. In the event that more Students that the number declared in the Offer register for the Service, exceeding the applicable threshold, the annual fee will be automatically adjusted to the higher threshold. The annual fee will be renewed for the following year period based on the fee invoiced at the end of the previous year period but could be adjusted, upon the Client’s request, to the effective number of Students registered at the renewal date of the Contract.
13.4. The Service Fee shall be revised at the beginning of each civil year according to the following formula:
P1 = P0 X S1 / S0
- – P0 is the initial Service Fee ,
- – P1is the Service Fee after revision,
- – S0 is the SYNTEC index known at the date of the Contract, available on the website “syntec.fr”
- – S1 is the newest SYNTEC index published at the date of revision.
13.5. Moreover, ATL SOFTWARE may at the end of the term or upon renewal of this Contract, decide of a greater increase of fees that was is allowed under Section 13.4 up to 5% , by giving the Client a minimum three(3) months prior notice. In such a case the Client may refuse such increase and terminate the Contract without penalty) by sending a registered letter of termination to ATL SOFTWARE within the thirty (30) days from the communication of the new fees by ATL SOFTWARE, such termination being effective upon expiration of this period. Should the Client not terminate the Contract within such period, revised fees shall apply automatically to the current Contract..
14. Payment Conditions
14.1. Service Fee and Processing Fees for Students registration as set forth in section 13, are payable in advance, by wire transfer, within 30 days from the issuance date of the invoice unless otherwise agreed.
14.2. Any service being outside the scope of this Contract (training, installation, specific development, or any out-of-scope service), shall be invoiced at the end of the month, and paid within 30 days from the issuance date of invoice. unless otherwise agreed
14.3. Payment is made by bank transfer, direct debit, it being specified that all bank charges (including rejections) retained by a financial intermediary or paid by ATL SOFTWARE will be invoiced to the Client.
14.4. Unless otherwise specified in the Offer, the fees are expressed in USD and exclusive of taxes.
Any taxes of any kind such as, VAT, import or export, retention or any other similar taxes and duties shall be bore by the Client. The fees defined in the Offer are the sums to be effectively paid to ATL SOFTWARE after deduction of all taxes, duties, retention, bank charges or any other charges applicable to such transaction.
14.5. Any amount not timely paid or partially paid for any reason whatsoever shall bear, without notice to the Client, an interest of 5% per month from the due date, without any formal notice being necessary in accordance with Article L441-6 of the French Commercial Code. In addition, the Client shall pay a flat fee of 40 USD as compensation for recovery costs. However ATL SOFTWARE reserves the right to claim additional compensation, if the recovery costs are higher than 40 USD.
14.6. Should the Client be delinquent in payment of any invoice, access to the Services may be suspended by ATL SOFTWARE. Such suspension may not be considered as a termination of the Contract by ATL SOFTWARE, or a waiver by ATL SOFTWARE to its rights to terminate nor entitle the Client to any compensation whatsoever.
15. Intellectual Property Rights
15.1. ATL SOFTWARE grants to the Client a personal, non assignable, and non exclusive right to use the Application Services, for the number of Centers and Students as declared in the Offer, or as updated during the Contract. Any use of the Services out of the scope granted to the Client may authorize ATL SOFTWARE to suspend without delay the Service and/or terminate the Contract for cause.
15.2. It is agreed that rights to use Application Services are granted exclusively for the Client’s internal needs, and shall not include any reproduction, adaptation, modification rights, or any right of diffusion, for free or with compensation, and more generally any right of commercial use or exploitation of the Services.
15.3. This Contract may not in any case be considered as an assignment by ATL SOFTWARE of its intellectual property rights on the Application, including the Evolutions and specific developments made in accordance with this Contract; which ATL SOFTWARE shall retain full ownership thereof, as well as on all components and modules included in the Application, with the exception of open source components.
15.4. In particular, ATL SOFTWARE retains all copyright on the Application database The access to the SQL database is strictly prohibited and the Client commits itself to not access to sch SQL database, in particular for the development or interfacing of third party applications.
15.5. The Client may under no circumstances assign all or part of its rights of use the Application Services to any third party.
16.1. Data Ownership
All data and information related to the use of the Application by the Client shall be the exclusive ownership of Client.
The Client grants, as needed, to ATL SOFTWARE and its subcontractors a non exclusive, free, assignable and worldwide license to host, put in cache memory, copy and display all Data, for the purposes of performing the Service, and exclusively in association with or while performing such Services.
This license shall end as of right upon termination of this Contract, unless hosting and processing the Data is needed, in particular for reversibility operations.
The Client declares and warranties that he owns all necessary licenses to process the Data within the Services, and that he may freely grant a license in the above terms to ATL SOFTWARE and its subcontractors. ATL SOFTWARE shall not disclose or communicate the Data to any third party except if decided by a court or judicial or governmental authority of competent jurisdiction. ATL SOFTWARE will use its best efforts to inform the Client at soon as possible except if the injunction prohibits such information.
16.2. Data retention
Subject to the provisions hereunder on retention of personal data, Data shall be stored for the duration of the Contract. Upon termination of the Contract, the provisions of section “Consequences of Termination” shall apply.
16.3 Personal data
If the Data collected for the purposes of, or treated by the Service contains personal contents, or may be qualified as personal data, under applicable law, in accordance with its legal obligations under the Data Protection Act of 6 January 1978 and the Regulation (Eu) 2016/679 of The European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, (General Data Protection Regulation), the following provisions shall apply to such data (“Personal data”)
16.3.1 Responsibilities of the Parties
ATL SOFTWARE shall remain the sole data controller for Personal Data contains in the Application, ATL SOFTWARE acting only as “processor” (in the meaning of applicable regulations) of such Personal as publisher and hosting company of the Application. ATL SOFTWARE, as processor shall be liable for compliance with its specific obligations defined in the Contract and under applicable regulation for protection of personal data or if ATL SOFTWARE is acting outside the Client’s instructions.
ATL SOFTWARE will not be responsible for any Client’s breach of its obligations that would not be attributable to him under this Contract in accordance with section 82.3 of GDPR.
Furthermore, ATL SOFTWARE’s liability towards the Client, in case of a third party claim as stipulated in section 82.4 of GDPR, shall be limited to the amount defined in section “ Liability” of these General Terms and Conditions.
16.3.2. Warranty – Hold Harmless
The Client warrants that for all Personal Data processed by the Application (such as Data related to Students and Users) it complies with its obligations under the Data Protection Act of 6 January 1978 the Regulation (Eu) 2016/679 of The European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and any other French and European applicable legislation and regulations.
Consequently, the Client warrants ATL SOFTWARE that it has informed the individuals concerned by the use of the aforesaid Data and of the rights they hold under such regulation (rights of access, erase, rectification, opposition, portability, right to limit the processing).
Particularly, the Client warrants to ATL SOFTWARE that it has obtained the consent of the representatives of minors under 16 years of age in accordance with the applicable regulations for the processing of their Personal Data by the Application.
The Client also warrants that it has obtained, if necessary, the express consent of the concerned persons for the collection and processing of sensitive date (such as healthy data, disability, allergies or other pathologies to be declared with the schooling framework)
The Client agrees to hold harmless ATL SOFTWARE against any claim, demand or cause of action from a person whose personal data might be hosted by ATL SOFTWARE or its subcontractors, and related to the use and processing of such Data by the Service. Therefore, the Client shall indemnify and hold ATL SOFTWARE harmless against any damages or decision against ATL SOFTWARE, resulting from a claim of a present or past User of the Service, or from a data subject whose Data have been processed by the Service, and acknowledges that he is sole liable for collection and processing of the Data.
16.3.3. Personal data processing
The Client authorizes ATL SOFTWARE, as personal data processor, to process personal data, on its behalf, for the sole purposes of the Service, namely: hosting and publishing of an application for management of educational activities.
The Client authorizes ATL SOFTWARE expressly and specifically to communicate with the Students to inform them of the evolutions of Application or to invite them to download the mobile version of the Application. The Students may unsubscribe at any time from the newsletter.
ATL SOFTWARE undertakes to:
- process the data solely for the purpose(s) subject to the sub-processing
- process the data in accordance with the documented instructions from the Client.
- guarantee the confidentiality of personal data processed hereunder
- ensure that the persons authorized to process the personal data hereunder:
- – have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality
- – receive the appropriate personal data protection training
ATL SOFTWARE may engage the following companies to conduct specific processing activities, namely: hosting and processing of Data in the Application.
For the European Clients only:
ATL SOFTWARE undertakes that the Data will be hosted in servers located in the European Union and more precisely : OVH Data Center in Hauts de France, France.
For the rest of the world:
ATL SOFTWARE undertakes that the Data will be hosted in servers located in OVH Datacenter OVH in Singapore, OVH Datacenter in Canada, Amazon Datacenter in Ireland and Amazon Datacenter in the US.
Where ATL SOFTWARE hires other sub-processors, it must first inform the Client in writing of the processing activities subcontracted, the identity and the details of the sub-processor. The Client will send its objections as the case may be within 15 days from the receipt of this information. In the absence of such objection, the sub-processor shall be deemed accepted by the Client.
It is ATL SOFTWARE’s responsibility to ensure that the sub-processor provides the same sufficient guarantees to implement appropriate technical and organizational measures in such a manner that processing meets the requirements of the General Data Protection Regulation.
Where the sub-processor fails to fulfil its data protection obligations, ATL SOFTWARE remains fully liable for the sub-processor’s performance of its obligations.
16.3.5. Rights of Data subjects
The Client shall respond to requests for exercising the data subject’s rights: right of access, to rectification, erasure and to object, right to restriction of processing, right to data portability, right to limit the processing).
Such requests for exercising the data subject’s rights shall be treated solely by the Client, on its behalf.
All requests for exercising the data subject’s rights sent directly to ATL SOFTWARE shall be systematically transmitted to the Client to be treated within the legal schedule.
16.3.6. Data security
ALTWARE will make a daily back up of the Data to allow their recovery. The back up are retained during 12 months.
Furthermore, depending on the nature of the personal data, their sensitivity, and the risks incurred for the persons in case of breach, ATL SOFTWARE may, upon the Client’s request, implement supplementary measures in order to ensure the security of the data. These measures may include data encryption, pseudonymization or regular audits of the availability and security of the data.
16.3.7. Personal Data Breach
ATL SOFTWARE shall notify by phone the Client of any personal data breach not later than 72 hours after having become aware of it, and confirm immediately by email. Said notification shall be sent along with any necessary documentation to enable the Client, where necessary, to notify this breach to the competent supervisory authority and the concerned person.
16.3.8. Storage of Personal Data
By default, Personal Data related to Students and Users will be erase upon closing of Student account or User account.
In any case, it is the Client’s responsibility to carry out all necessary applications with Data Protection Authorities, as required by national or European laws, in order to determine the storage time of these data; and to inform ATL SOFTWARE so that it may make the necessary settings on the Application.
16.3.9. Status of Personal Data upon termination of the Contract
In case of termination of the Contract for any reason whatsoever ATL SOFTWARE shall return to the Client, upon its request, all hosted Personal Data, in an open format, as mentioned in Section 21.
In the absence of such request within 30 days from the date of termination of the Contract. ATL SOFTWARE will erase the hosted Personal Data.
This section shall apply without prejudice of the provisions of section “Consequences of termination”.
16.3.10 Record of categories of processing of activities
ATL SOFTWARE shall maintain a written record of all categories of processing activities carried out as sub-processor, as required by the current regulations, including the name and contact details of the Client, acting as processor, and the categories of processing carried out.
16.3.11. Assistance duties
ALT SOTWARE shall use its best endeavours to assist the Client in the measures to be taken in order to be compliant with the current regulation regarding the processing of personal data. For that purpose, ATL SOFTWARE will make available to the Client all needed information in case of performance of a security audit or impact analysis.
However, the services covered by this Contract are not including, the performance of steps specific to the Client, such as drafting of impact analysis or declarations to the CNIL of a personal data breach. As the case may be such specific services will be invoiced.
Neither Party may assign or transfer this Contract, in all or in part, for free or against payment, to a third party, without the other Party’s prior written approval, except in the case of transfer of ATL SOFTWARE’s business to a third party, subject to resumption of contractual commitments by the Assignee, and subject to prior information of the Client by ATL SOFTWARE. Change in control shall not be considered as a cause of assignment.
18. Infringement – Indemnification
18.1. Except for open source software and components, which shall be used according to their respective licenses, ATL SOFTWARE warrants that it owns all necessary intellectual property rights on the Application and its Evolutions, to sell the Services to the Client and carry out all its obligations, especially as regards On Going Maintenance.
18.2. ATL SOFTWARE will defend and hold harmless the Client against any action, suit, claim of any third party alleging that, in particular, intellectual property rights are infringed, or restrict or prohibit the use of the Service or any items produced or supplied by ATL SOFTWARE under this Contract.
18.3. This warranty is subject to the following conditions :
- – the Client has notified in writing the action, suit, claim, declaration or formal notice preceding the dispute, within a maximum period of one month, except in case of emergency procedure (in particular, seizure, bailiff’s report or summary proceedings) which shall be notified within a maximum of eight (8) working days;
- – ATL SOFTWARE has been enabled by the Client to defend its own interests and those of the Client, subject to the Client’s Contract, particularly as regards the choice of lawyers in charge of its own defense, and, the Client has cooperated faithfully in such defense, providing all such information, assistance as is reasonably necessary to carry out such defense.
18.4. Under this warranty, including in the event that the Client decides to conduct its own defense, ATL SOFTWARE undertakes to pay :
- – all damages and other fees (in particular attorney, expert and legal fees) to which the Client may be ordered to pay by virtue of a final judicial decision, enforceable against ATL SOFTWARE relating to its use of the Service, and not subject to appeal, whether or not suspensive; or
- – the amount of the transactional indemnities provided for in the settlement agreement concluded with the plaintiff, and endorsed by ATL SOFTWARE.
It is expressly agreed that the warranty given by ATL SOFTWARE under this section is limited to the amount indicated in the section “ Liability” of these General Terms and Conditions.
18.5. In the event that the use of the Services becomes prohibited as a result of an infringement action or as a result of a settlement agreement between ATL SOFTWARE and the plaintiff, ATL SOFTWARE will make reasonable efforts to, at its option and expenses:
- – obtain the right for the Client and its customers to continue to use the Services, and/or the elements provided or achieved by ATL SOFTWARE under this Contract,
- – replace the concerned Services by other non infringing application services, in order to avoid such infringement, or unlawful competition acts; while assuring the Client with the same functionalities and level of performance;
18.6. If ATL SOFTWARE cannot implement one of these options, it will inform the Client by registered letter with return receipt. Each Party may then terminate the Contract without notice and without any other compensation to be paid to the Client.
18.7. In no event shall the existence of any action, suit or claim as defined hereabove entitle the Client to terminate this Contract or to suspend the payment of the fees for the Application Service, processing of registration or for the specific services supplied outside the Contract, except for the specific grounds of termination provided for in sections “Term” and “Termination” of these General Terms and Conditions. It is agreed that the existence of any action, claim or suit as defined hereabove cannot be considered as a breach by ATL SOFTWARE of its contractual obligations within the meaning of the article “Termination” of this Contract.
18.8. The foregoing indemnity obligation shall not extend to any claims of infringement arising out of or related to an unauthorized or unforeseen modification or use of the Service by the Client
19.1. Scope of liability
Given the high level of technology implemented in the Application, it is expressly agreed by the parties that ATL SOFTWARE is subject to a best-endeavours obligation. Consequently ATL SOFTWARE shall only be liable for a default when clearly evidenced by the Client.
ATL SOFTWARE 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.
ATL SOFTWARE undertakes to take all technical measures in order to ensure safety of the Data and to protect them against accidental or illicit destruction, accidental loss, alteration, disclosure or unauthorized access, against any other unlawful forms of processing or communication to unauthorized persons.
The Client shall take all necessary steps to prevent any damages to the files, data, documents or any other elements disclosed to ATL SOFTWARE when using the Service or more generally, within the performance of the Contract.
ATL SOFTWARE commits to take all reasonable safety measures to protect its servers against Client’s Data contamination and malicious intrusions of third parties.
ATL SOFTWARE is not liable for the content of information posted or collected through the Services, for their use and updating. ATL SOFTWARE shall never be liable for claim or action instituted by any third party, in particular arising from the posting of information, pictures, sound, text, videos collected and hosted within the use of Services ant that may violate laws and regulations and more particularly privacy law. In such case the Client shall indemnify and hold harmless ATL SOFTWARE from any damages resulting from a third party claim.
In the event that unlawful content or content violating applicable laws likely to incur criminal or civil law and/or that may infringe third parties‘ rights, ATL SOFTWARE reserves its rights to suspend the supply of the Services immediately and without notice and to terminate the Contract without prejudice of compensation that ATL SOFTWARE may claim.
The Client undertakes that his use of the Service shall not affect or compromise the stability, security and quality of ATL SOFTWARE Service, networks, bandwidth or infrastructure, or of ATL SOFTWARE’ other Clients or third parties. If ATL SOFTWARE observed that the Client’s use of the Service endangers or alters the stability, security of quality of ATL SOFTWARE Service, networks, bandwidth or infrastructure, or of ATL SOFTWARE’ other Clients or third parties, ATL SOFTWARE reserves the right to suspend or interrupt the Client’s access to the Service, even without notice.
19.2. Limitation of liability
To the maximum extent permitted by applicable law, in no event shall ATL SOFTWARE 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. It is expressly understood by the parties that all actions or claims instituted or filed against Client by a third party constitute indirect damages and, therefore, shall not entitle Client to any compensation.
ATL SOFTWARE’s liability may not, in any case, be claimed in case of:
- – Use of the Services in a way not provided for in the user documentation or in case of unauthorized use according to the Contract;
- – Unauthorized modification of all or part of the Application, or of information accessible via the Services, and not carried out by ATL SOFTWARE or an authorized provider;
- – Use of all or part of the Services, whereas ATL SOFTWARE had recommended, following a technical incident or for whatever reason, to suspend their use;
- – Any damage resulting from a breach or a negligence from the Client, which he may have avoided by asking advice from ATL SOFTWARE;
- – Use of third party software with the Service, not provided or endorsed by ATL SOFTWARE, and likely to affect the operation of Services or the Client’s Data;
Notwithstanding the foregoing, it is expressly agreed between the parties that, in case of judicial decision rendered against ATL SOFTWARE, or a settlement Contract endorsed by him, ATL SOFTWARE’s liability shall be limited to no more than the amount paid by the Client under the Contract for the current twelve (12) months period during which the claim of the third party is instituted, or, by default, the event giving rise to the damage occurs.
Each Party may terminate the Contract , under the conditions set forth in the section « Term » of these General Terms and Conditions.
Furthermore, each Party may terminate the Contract in case the other Party breaches any following obligations:
- – Service Fees and Payment Conditions
- – serious and repeated breach by ATL SOFTWARE of its Support obligations
- – serious and repeated failure of ATL SOFTWARE regarding the availability of the Service.
- – breach by any Party of its obligations regarding the protection and processing of Personal Data having a significant commercial or financial impact for the other Party
In the event of a breach by either party of any obligation under the Contract, which would remain uncured for a period of thirty (30) calendar days, starting from the date of a registered letter with return receipt notifying the breach to the breaching party, the non-breaching party may terminate the Contract, by registered letter.
In addition, in the event of early termination for default of payment by the Client, ATL SOFTWARE may claim to the Client the payment of liquidated damages up to 10% of the amount remaining due, without prejudice to any other damages that ATL SOFTWARE could claim.
21. Consequences of Termination
Upon termination of the Contract the Client shall :
- – cease immediately to use the Service,
- – pay to ATL SOFTWARE the balance of all outstanding invoices within thirty (30) days
At the end of the Contract, whatever its reason, ATL SOFTWARE shall be entitled to keep any fees paid for the current contractual period, without reimbursement to the Client.
In the event of termination of the Contract, for any reason whatsoever, the Client may, upon written request, recover all Data hosted by the Application, within a maximum period of sixty (60) days from the date of termination. Data may be transferred directly from the Application in an open and commonly used format (such as .csv or any equivalent format). Furthermore, upon request of the Client, ATL SOFTWARE undertakes to destroy all the data hosted by the Application. In the absence of such request.
It is reminded that ATL SOFTWARE remains the sole owner of the rights on the database of the Application (SQL database or any other language used by ATL SOFTWARE), which constitutes an original work protected by copyright. Therefore, the Client may not request an export of the database itself, but only of its raw Data in open format as indicated above.
In order to enable the Client to continue to operate the Data without interruption, either directly or with the assistance of another service provider, ATL SOFTWARE will provide, at the Client’s request, assistance services for reversibility, in order to provide the Client with the Data in the format of its choice. These services will be performed on specific quotation and will be invoiced separately.
Each Party undertakes, on its behalf and on behalf of its employees, to treat as confidential, both during the term of the Contract and after its termination, all documents, data, systems, software, or know-how belonging to the other Party, and which he would get knowledge of during the performance of this Contract; and shall refrain from disclosing to any third party all or portion of this confidential information or make any other use of such information for any other purpose than the performance of this Contract.
Nevertheless, the confidentiality obligations shall not apply to any information that :
- – is in the public domain at the date of disclosure or
- – becomes later publicly known through no wrongful act of a party or
- – is rightfully obtained from any third party without breach of an obligation of confidentiality regarding such information.
These obligations remain valid for a period of five (5) years from the end of the Contract for whatever reason
ATL SOFTWARE may subcontract totally or partially the performance of the Contract to any subcontractor of its choice. However ATL SOFTWARE shall remain fully liable to the Client of its obligations under the Contract.
24. Business Reference
ATL SOFTWARE is authorized to use the Client’s name as commercial reference.
25. Force Majeure
25.1. The Parties shall not be liable to each other for a delayed or lack of performance of their obligations to the extent that their obligations are in whole or in part subject to force majeure., such as but not limited to : terrorism, fires, explosions, or floods of computer systems, and in particular affecting the Servers, malfunctioning or interruption of the electrical or telecommunications networks, Internet networks, and in particular breakdowns or interruption of services by ATL SOFTWARE service providers or subcontractors, law or regulations that would render unlawful performance of this Contract, decease of one of ATL SOFTWARE’s key-person, such as its General Manager (CEO), its technical manager (CTO), that could not be replaced immediately.
25.2. If any Party were prevented to fulfill its obligations for more than three (3) months for reason of a force majeure event, each party shall be entitled to terminate the Contract without indemnification by registered letter with return of receipt. In case of definite impediment, the Contract shall be terminated as of right, without delay.
26. Entire Contract – Amendments
26.1. It is understood and agreed that this Contract contain the entire and only understanding between the parties relating to the subject matter hereof. It replaces all verbal and written agreement prior to its signature and may relate to it.
26.2. Any provision of these General Terms and Conditions shall only be modified by common written agreement of the parties.
27.1. If any provision of these General Terms and Conditions shall be held to be invalid, illegal, or unenforceable by competent court, 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.
28. No Waiver
28.1. Any one or more failure by either party to enforce any provision of these General Terms and Conditions or to exercise any right shall in no way constitute a waiver of such right or remedy on any future occasion.
29. Applicable Law and Dispute Resolution
29.1. These General Terms and Conditions shall be governed and interpreted in accordance with the laws of France.
29.2. The Parties shall make their best efforts to settle amicably all disputes relating to the conclusion, construction, performance or termination of the Contract. Upon the occurrence of a dispute, the Parties shall meet within one month from notification of such dispute by one Party to the other, by registered letter with AR. This conciliation meeting shall be held with at least one legal representative (or duly authorized member of staff) of each Party. Should the Parties not reach an amicable agreement within one month from this conciliation meeting, each Party shall be free to engage in any legal action.
29.3. IF THE PARTIES FAIL TO REACH AN AMICABLE SETTLEMENT UNDER THE CONDITIONS SET FORTH ABOVE, ALL DISPUTES OR CLAIMS ARISING OUT OF OR RELATING TO THIS CONTRACT, OR THE VALIDITY, CONSTRUCTION, BREACH, OR TERMINATION THEREOF, SHALL BE SETTLED BY THE COMMERCIAL COURTS OF SAINT DOMINGUE DOMINICAN REPUBLIC WHICH SHALL HAVE EXCLUSIVE JURISDICTION, NOTWITHSTANDING THE CASE OF PLURALITY OF DEFENDANTS, OR EMERGENCY PROCEDURE.