Terms and Conditions
1 – INTRODUCTION
The present general conditions (“GC”) apply in their entirety to any order submitted by Client to FAMOCO or any authorized partner, in connection with:
- hardware sold by FAMOCO (“Device(s)”);
- the right to access and use the mobile device management software-as-a-service solution hosted by FAMOCO (“FAMOCO Management Suite” or “MDM”);
- the device as a service subscription including a right of access and use of the Device(s) and the MDM solution (“DAAS Subscription”); or
- the right to use the FAMOCO’s Android OS embedded in the Device, in particular for running third party software in connection with the MDM (the “FAMOCO OS”).
;The Devices, FAMOCO OS, MDM and DAAS Subscription may be used by Client’s employees, consultants or subcontractors under Client’s control. They may also be used Client’s own customers but only as part of Client’s service provider offer to such customers, excluding any resale. Client expressly warrants that use by such entities shall be subject to all the terms and conditions of these GC.
The supply of the Devices and the right to access and use the MDM do not include the Devices, MDM or FAMOCO OS installation, configuration, adaptation or any customization services. However, FAMOCO may, upon Client’s request, provide such services in accordance with a separate contract under its current commercial, technical and financial conditions.
The order implies acceptance of the GC without exception. The GC prevail over any other document exchanged between the parties, in particular the Client’s general purchasing conditions, whenever such document may have been brought to the attention of FAMOCO or any authorized partner. Any condition departing from or adding to the GC shall require prior written approval from FAMOCO. All information in the brochures, leaflets, price lists, or any advertisement of FAMOCO are communicated for information purposes only and cannot bind FAMOCO in any way.
FAMOCO reserves the right to modify the GC at any time.
2 – ORDER
Any order issued by Client, including by means of the FAMOCO’s E-shop platform at shop.famoco.com, shall be accepted in writing by FAMOCO or any authorized partner in the form of an order or shall be passed by reference to FAMOCO’s commercial offer. Once acknowledged, orders may not be cancelled by Client without FAMOCO’s or any authorized partner’s prior written approval, which shall be provided under conditions allowing FAMOCO to be fully compensated for all loss or damage caused by such cancellation, including any loss of margin. Moreover, any down payment already made shall be kept by FAMOCO.
3 – DELIVERY
All deliveries shall be EXW location indicated in the order (Incoterms 2010), except where agreed otherwise in writing by FAMOCO or any authorized partner, or under the delivery conditions provided for under the E-shop purchase process. All transport, insurance, duty and handling operations are borne by and at the expense and risk of the Client. Risks are transferred upon dispatch of the Devices, without prejudice to FAMOCO’s right to benefit from section 4 of the present GC. Delivery timeframes are indicated for information purposes only. In no event shall any failure to deliver Devices in such timeframes justify cancellation of the order or grant the Client any right to penalties or damages whatsoever.
In case of export, the Client undertakes that:
– the customs broker coordinates with FAMOCO and reports to it full completion of the export formalities, in particular by providing it with the Devices’ declared prices, and
– evidence of export and/or exit of the European Union territory as well as evidence of import in the territory of use or operations is systematically communicated to FAMOCO as soon as possible after export or import.
4- OWNERSHIP – TRANSFER OF RISKS – CUSTODY
Title to the Devices under sales orders shall not pass to the Client until FAMOCO has received payment in full of the price including any applicable interest. FAMOCO may terminate the sale ipso jure and any down payment already made shall be kept by FAMOCO.
Under a DAAS Subscription, Devices remain under the sole ownership of FAMOCO and are only made available to Client for the term of the Subscription upon payment of a deposit.
Client shall take all measures to ensure that Devices are identifiable as FAMOCO’s ownership.
In the event of payment breach, Client acknowledges that FAMOCO shall have the right to deactivate the Devices’ operative system remotely. Furthermore, Client shall allow and assist FAMOCO is repossessing, by any and all means, the Devices delivered, whether or not they are situated in the Client’s premises or premises of any other party, and with the assistance of a third party if necessary.
Notwithstanding the above, Client shall be in charge of the Devices from delivery. Client shall subscribe from such time onwards an insurance policy to cover risks of loss, theft, degradation or destruction of the Devices and any damages resulting from their use. Client shall identify FAMOCO as a beneficiary under such insurance coverage.
Under a DAAS Subscription, Client is solely liable for all risks of damage, loss, theft or destruction of Devices made available by FAMOCO under Client’s custody. Client shall immediately notify FAMOCO of any loss, incident or damage on any Device made available under a DAAS Subscription. Client expressly acknowledges that DAAS Subscription fees shall remain payable in connection with any Devices lost or damaged until the end of the subscription period under the order or FAMOCO’s commercial offer.
Devices made available under a DAAS Subscription shall be operated, used and maintained under normal professional usage conditions and in compliance with its destination and usage notice. In no events shall Devices be tampered with.
5- THIRD PARTY SOFTWARE
The Devices contain or Client may download third party proprietary software, including their documentation, which are licensed to Client under the conditions provided for by such software editor in connection with Devices. Client agrees that the use and/or access of third-party software are subject to such terms entered into directly with such third-party editor. Thus, FAMOCO disclaims all warranties, indemnities, obligations, and other liabilities in connection with any third-party software downloaded on the Devices. In particular, Client is solely responsible for checking and testing the compatibility of such third-party software with MDM or FAMOCO OS.
6- RIGHT TO ACCESS AND USE MDM AND ASSOCIATED FAMOCO OS
Together with the Devices’ sale or under a DAAS Subscription, FAMOCO makes available to Client, for its internal business purposes, (i) the mobile device management software-as-a-service solution hosted by FAMOCO, called “MDM”, and (ii) support assistance under the conditions set forth in section 12 below.
The right to access and use the FAMOCO OS is a personal, limited, non-exclusive and non-transferable license to use one copy, in object code form only, of the FAMOCO OS as embedded in Devices purchased or made available to Client under the DAAS Subscription, solely for Client’s internal business purposes and solely in accordance with the applicable documentation and these GC.
Client is solely responsible for maintaining the secrecy and security of any authentication key or credentials given for access to the MDM, and for their use by any and all employees that it allows to access the MDM.
Authenticator tools may be installed on the Client’s employees or consultants’ smartphone in order to obtain an additional secure authentication to access the MDM. Such tools are accessible through the MDM via Google Play and the App Store. Client is prohibited from using the MDM for any illegal purpose, such as, without limitation, sending spam/unsolicited mail, forgery, violation of system or network security, storage or transfer of obscene, defamatory, pornographic or indecent material, and infringement of third-party rights.
Client acknowledges that there are risks inherent in Internet connectivity that could result in the loss of confidentiality or property. Client acknowledges that FAMOCO may update MDM functionalities, user interface, usability, other user documentation and compile data integrated in MDM from time to time in its sole discretion and as part of its on-going mission to improve MDM and FAMOCO services.
Any use not expressly agreed by FAMOCO is prohibited and Client shall not, nor cause nor permit third parties to:
- copy, duplicate, alter, adapt, translate in any manner, integrate into another software, disassemble, all or part of the MDM or the FAMOCO OS or the accompanying documentation, nor engage in any reverse engineering except to the extent authorized by mandatory applicable law, nor attempt to discover the source code,
- modify in any manner the MDM or the FAMOCO OS, except to correct possible errors only if the modification is required to insure use in accordance with the MDM or FAMOCO OS’s specifications and with FAMOCO’s prior written approval. In such event, FAMOCO reserves the right to make the changes to correct any such error.
- distribute, sub-license, disclose, assign, rent, loan, lease, sell, give, or otherwise transfer, even freely, the MDM or the FAMOCO OS in whole or in part, by any means, to any third party without FAMOCO’s prior written approval.
- remove, obscure or alter any proprietary notices or labels from the MDM or the FAMOCO OS, nor any legal notices, such as trademark or copyright notices, affixed to or contained within the MDM or the FAMOCO OS or any accompanying documentation, or
- use the MDM or the FAMOCO OS to create any derivative works based on all or part of the MDM or the FAMOCO OS or any related know-how or copy any of the features, functions or graphics of the MDM or the FAMOCO OS in order to develop any competing or similar product for the duration of the MDM or FAMOCO OS legal protection.
8- INTELLECTUAL PROPERTY RIGHTS
8.1. Ownership / Copyright and Patent Protection. The MDM, FAMOCO OS and Devices, and any authorized copy are the intellectual property, the valuable trade secrets and confidential information of FAMOCO or its licensors who own the relevant rights. The MDM and FAMOCO OS, are protected by law, including without limitation the copyright laws of France, the United States and other countries, and by international treaty provisions. The Devices are protected by patents. FAMOCO does not assign any property right when licensing MDM and FAMOCO OS or when selling Devices and reserves all rights not herein granted. Except as expressly stated herein, these GC do not grant Client any intellectual property rights in the MDM, the FAMOCO OS and Devices or any enhancements and all titles, rights, including intellectual property rights and copyrights, interest in and to the MDM, FAMOCO OS and Devices or any enhancements, the accompanying documentation, whatever the form, and any copy, are owned by FAMOCO or its licensors.
8.2. Intellectual Property Rights Indemnity.
8.2.1. Defense and Covered Claims.
If a third party action is brought against Client claiming that Client’s use of the DAAS Subscription, MDM or FAMOCO OS infringes a valid patent, copyright or the sale or use of Devices infringes a valid patent, FAMOCO will defend Client at FAMOCO’s expense and, subject to this section and section 14 below, pay any damages and costs finally awarded against Client in the infringement action, but only if (a) Client notifies FAMOCO promptly upon learning that the claim might be asserted, (b) grants FAMOCO the sole control over the defense of the claim and any negotiation for its settlement or compromise and (c) Client fully cooperates with FAMOCO in its defense or settlement of the claim.
8.2.2. Opportunity to Cure.
If a claim described in 8.2.1 above may be or has been asserted, Client will permit FAMOCO, at FAMOCO’s option and expense, to (a) procure the right for Client to continue using the MDM, FAMOCO OS, DAAS Subscription or the Devices, (b) replace, as applicable, or modify the MDM, FAMOCO OS, DAAS Subscription or Devices to eliminate the infringement or, if (a) or (b) is not economically reasonable, (c) terminate the agreement and refund to Client the license fees actually paid by Client to FAMOCO for the infringing MDM, FAMOCO OS, DAAS Subscription or Devices, less depreciation based on a 5-year straight-line depreciation schedule.
The foregoing states the entire obligation and liability and exclusive remedy of FAMOCO with respect to infringement of any copyright or patent caused by or arising from the use of the MDM, FAMOCO OS, DAAS Subscription or Devices or any part thereof. The indemnity obligation set forth above shall not apply with respect to a claim, demand, action, cost, expense, loss or damage (hereinafter in this section “the Infringement Claim”) which arises (i) from use of the MDM, FAMOCO OS, DAAS Subscription or Devices outside of the scope or in violation of these GC or from a misuse, modification, customization or enhancement of the MDM, FAMOCO OS, DAAS Subscription or Devices by Client where such is a material cause of the Infringement Claim (ii) from the use of a superseded or modified release of the MDM, FAMOCO OS, DAAS Subscription or Devices by Client, if the Infringement Claim would have been avoided by the use of the current or unmodified release; (iii) from the use, operation, or combination of the MDM, FAMOCO OS, DAAS Subscription or Devices with programs such as customizations or development of interfaces, data, equipment, or materials not provided by FAMOCO, if the Infringement Claim would have been avoided by the use of the MDM, FAMOCO OS, DAAS Subscription or Devices without such programs, data, equipment, or materials, or (iv) to the extent that Client continues the allegedly infringing activity after being informed of and provided with modifications that would avoid the alleged infringement.
9- TERM, SUSPENSION AND TERMINATION OF MDM AND RIGHT TO USE FAMOCO OS
9.1. MDM or DAAS subscriptions
MDM or DAAS subscriptions terms are described in the order or FAMOCO’s commercial offer and start when activated to correspond to the number of Devices in the field, except where otherwise agreed in writing between the parties. MDM or DAAS subscriptions and associated maintenance services are automatically renewed for successive monthly, annual or any other period as agreed in writing according to Devices identified as in the field. Client shall identify, under the MDM system, Devices in the field, and Client acknowledges and guarantees that the number entered is, at all times, strictly in accordance with Devices in use. To this effect, Client agrees to promptly answer any queries from FAMOCO in this respect and allows FAMOCO to audit MDM and Devices use at any time.
Each party may notify its decision not to renew its subscription by providing the other:
– a minimum of two (2) months prior written notice in case of an annual subscription or more, and
– a minimum of ten (10) days prior written notice in case of a monthly subscription.
9.2. FAMOCO OS
The license to use FAMOCO OS is granted from Device delivery for the duration of the FAMOCO OS’ legal protection and only for the version as delivered. Client expressly acknowledges that any update or maintenance services of FAMOCO OS shall only be granted for an additional fee, except as included under the order or FAMOCO’s commercial offer.
FAMOCO may suspend or restrict the access to MDM or DAAS Subscription without liability if (i) FAMOCO reasonably believes that the MDM or DAAS Subscription has been used in violation of these GC, (ii) any payment by Client is overdue, (iii) where FAMOCO reasonably believes that MDM or DAAS Subscription is being accessed or manipulated by a third party without Client’s consent, or (iv) FAMOCO reasonably believes that suspension of MDM or DAAS Subscription is necessary to protect the network used for the MDM, or DAAS Subscription or FAMOCO’s other clients.
9.4. Termination of MDM or DAAS Subscription and right to use FAMOCO OS
Without prejudice to any right to compensation for any damage suffered, FAMOCO may immediately terminate the agreement and the relevant order ipso jure, without further obligation or liability, (i) if Client fails to pay any applicable fees due within fifteen (15) days after receipt of written notice from FAMOCO of non-payment ; (ii) if Client or any of the users breaches any term or condition hereof and fails to correct such breach to the reasonable satisfaction of FAMOCO within thirty (30) days after FAMOCO notifies Client in writing; or (iii) to the extent authorized under applicable law, if Client ceases to carry on business as a going concern, becomes the object of the institution of proceedings in bankruptcy or liquidation, or a receiver or similar officer is appointed with respect to a substantial part of its assets.
Upon termination for any reason then all rights granted to Client hereunder will cease, except for use of FAMOCO OS under the present conditions, and except that the MDM may be accessed by Client for a maximum period of one (1) month from termination but solely in a “read only mode” (i.e. Devices can no longer be administered remotely).
Upon termination of a DAAS Subscription, Client shall return, under conditions to be agreed and in all events within thirty (30) days from termination, all Devices (with any and all accessories) to FAMOCO in good condition and working order. Any repair needed shall be at Client’s costs. Any missing or irreparable Device shall be charged to Client at the purchase price less depreciation based on a 5-year straight-line depreciation schedule. Client acknowledges that such costs may be compensated by FAMOCO with the deposit.
Any obligation that by its nature shall persist will survive the termination of the agreement between the parties but shall in no event imply or create any continued right to use the MDM or DAAS Subscription after termination.
10 – PRICE – PAYMENT CONDITIONS
10.1. Devices’ price and payment conditions
Prices are those applicable upon order. Prices are EXW without taxes except where provided for otherwise in writing. FAMOCO reserves the right to pass on to the Client any increase of more than 15 % of the price of raw materials or parts used in the manufacture of the Devices occurring between the order and dispatch of the Devices.
10.2. MDM, FAMOCO OS or DAAS Subscriptions price and payment conditions
The Client agrees to pay the applicable fees in the amounts as set forth in the order or FAMOCO’s commercial offer. Fees are effective and non-cancellable upon order submission to FAMOCO.
Upon notification, the MDM or DAAS subscriptions fees may be revised by FAMOCO on the 1st of January of each year, except in case of non-renewal as described in Section 9 above.
10.3. Common provisions
Prices are payable (i) in advance per term of Subscription or (ii) 30 days from date of invoice, as provided for under the order or FAMOCO’s commercial offer.
In accordance with article L.441-6 of the French Code de Commerce, FAMOCO may claim, in the event of late payment and without prior notice, (i) late penalties, and (ii) recovery costs corresponding to a lump sum of 40 euros, or any other amount in excess upon evidence. Late penalties shall amount to the interest rate applied by the European Central Bank to its most recent main refinancing operations plus 10 percentage points.
All amounts payable by Client are made without setoff or counterclaim and without deduction or withholding. Payment terms may not be postponed and no deduction shall be made by Client under any circumstances, even in case of dispute. In the event Client fails to pay any invoice at due date, all other invoices shall be due, regardless of any previously agreed to conditions. Breach of payment terms shall also allow FAMOCO to require full payment before dispatch, and to cancel, without compensation or notice, any orders, without prejudice to any other form of action.
11.1. Device warranty. Client shall inspect all batches upon delivery and exercise any claims against carrier, as the case may be, including where Devices are made available under a DAAS Subscription. In addition, Client shall proceed with checks of Devices upon delivery in particular in connection with quality, quantities, references and compliance of Devices to the order. In no event shall any claim be taken into account after a period of 10 days from dispatch of Devices.
FAMOCO warrants for a period of twelve (12) months, or any other period as provided for under the order or FAMOCO’s commercial offer or under a DAAS Subscription, from the twentieth (20th) calendar day from dispatch of the Devices that any Device shall be free from manufacturing and material defects in accordance with Device specifications so long as Devices have been used and maintained in compliance with good professional practices and with instructions as stated in the notice provided by FAMOCO. All claims related to Devices’ defects, non-conformity or performance, must be submitted in writing within five (5) days of discovery of the defect. Client may obtain, at FAMOCO’s sole option, to the exclusion of any other compensation or action: (i) repair; (ii) replacement; or (iii) refund of defective Devices, reduced by the annual straight-line depreciation amount, with an expected lifetime of three (3) years.
A device can only be returned with the prior approval of Famoco and according to the procedure described at https://help.famoco.com/support/RMA_process/
Costs, including transport and customs formalities and duties, incurred by replacement or repair are excluded from the warranties set forth hereunder. In the event of a Device replacement under the warranty or under a DAAS Subscription, FAMOCO reserves the right to provide Client a different Device, with equivalent functionalities, than the one purchased or made available. Any repair or replacement of a Device shall not increase the applicable warranty period. Client shall provide the description and proof of any detected defect. FAMOCO shall not accept the return of any Device without prior written return authorization.
The warranties set forth above do not apply to defects or damages due to: (i) improper handling, use or storage of Devices, including during their transport, or any other circumstances that are outside FAMOCO’s control ; (ii) use non-compliant with regulations, good professional practices and with FAMOCO’s instructions and the Devices’ specifications; (iii) submission of Devices to abnormal conditions (mechanic, electric, thermal, radiation); (iv) interaction with a third party product, or installation or maintenance services; (v) in the event where serial numbers and/or nameplates of Devices have been handled, removed, or when Devices are not clearly identifiable for any other reason; or (vi) any adaptation of the Device necessary to make the Device compliant with technical or security rules applicable under CE or FCC certification rules.
11.2. MDM warranty. FAMOCO warrants for the period of the MDM subscription that MDM will perform substantially in accordance with the functions described in the documentation. Client’s sole and exclusive remedy and the entire liability of FAMOCO under this warranty will be for FAMOCO to make its best efforts within a reasonable period of time to correct the MDM failure as notified by Client. This warranty will not apply to any problems caused by software or hardware not supplied by FAMOCO. Furthermore, Client acknowledges that (i) MDM may not be suitable to any and all combinations that Client may choose, and that (ii) MDM may not perform in every operating environment. FAMOCO shall not be held liable under this warranty (i) for any inadequate intervention on MDM by Client or any third party; (ii) for the use of MDM with a component or a third party system that is not compatible; and/or (iii) where the Device or MDM has been subjected to abnormal physical or electrical stress, misuse, misapplication, negligence or accident.
11.2. FAMOCO OS warranty. FAMOCO warrants, for a twelve (12) months period from the twentieth (20th) calendar day from dispatch of the Device, that the FAMOCO OS will perform substantially in accordance with the functions described in the documentation. Client’s sole and exclusive remedy and the entire liability of FAMOCO under this warranty will be for FAMOCO to make its best efforts within a reasonable period of time to correct or replace the FAMOCO OS. Any replacement FAMOCO OS will be warranted for the remainder of the original warranty period. This warranty will not apply to any problems caused by software or hardware not supplied by FAMOCO. Furthermore, Client acknowledges that (i) the FAMOCO OS may not be suitable to any and all combinations that Client may choose, and that (ii) the FAMOCO OS may not perform in every operating environment. FAMOCO shall not be held liable under this warranty (i) for any inadequate intervention on the FAMOCO OS by Client or any third party; (ii) for the use of the FAMOCO OS with a component or a third party system that is not compatible; and/or (iii) where the Device or FAMOCO OS has been subjected to abnormal physical or electrical stress, misuse, misapplication, negligence or accident.
Where support services are provided to Client by FAMOCO in connection with the Devices, the FAMOCO OS, or under a MDM or DAAS Subscription, the terms of such provision shall be defined in the order confirmation or FAMOCO’s commercial offer.
13.NO OTHER WARRANTIES.
EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THESE GC, THE DEVICES, THE DAAS SUBSCRIPTION, THE MDM AND THE FAMOCO OS ARE PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FAMOCO AND ITS AUTHORIZED PARTNERS DISCLAIM ANY OTHER WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. FAMOCO MAKES NO WARRANTIES OR REPRESENTATIONS THAT THE DEVICES, THE DAAS SUBSCRIPTION, THE MDM AND THE FAMOCO OS WILL MEET CLIENT’S REQUIREMENTS OR THAT OPERATION OR USE OF THE DEVICES, THE DAAS SUBSCRIPTION, THE MDM AND THE FAMOCO OS WILL BE UNINTERRUPTED OR ERROR-FREE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (a) IN NO EVENT SHALL FAMOCO OR FAMOCO’S SUPPLIERS BE LIABLE TO THE CLIENT FOR ANY LOST REVENUE, PROFIT, LOST OR DAMAGED DATA, OR BUSINESS INTERRUPTION, OR FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE MDM, THE FAMOCO OS, RELATED SERVICES, THE DAAS SUBSCRIPTION, FAMOCO’S DEVICES OR OTHERWISE IN CONNECTION WITH THESE GC (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE), EVEN IF FAMOCO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (b) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF FAMOCO ARISING OUT OF OR RELATED TO THESE GC, INCLUDING WITHOUT LIMITATION, THE USE OF OR INABILITY TO USE THE MDM, FAMOCO OS, RELATED SERVICES, THE DAAS SUBSCRIPTION, FAMOCO’S DEVICES CONCERNED OR OTHERWISE (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE) EXCEED THE FEES RECEIVED BY FAMOCO FROM CLIENT FOR THE APPLICABLE MDM, FAMOCO OS, RELATED SERVICE, THE DAAS SUBSCRIPTION, OR FAMOCO’S DEVICES IN THE PRECEDING SIX (6) MONTHS PRIOR TO THE DATE OF THE FIRST CLAIM, WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SET FORTH IN THIS SECTION.
15-CONFIDENTIALITY – DATA PROTECTION
All FAMOCO’s business and technical information including, but not limited to, financial information, software code, know-how, designs, methods, techniques, specifications, specific developments, marketing plans, strategies and forecasts are confidential (the “Confidential Information”). Client may only use the Confidential Information for the furtherance of these GC and shall not disclose the Confidential Information to any third party, other than employees who have a need to have access and knowledge of the Confidential Information solely for the purpose identified above. Client agrees to take all appropriate measures by instruction and agreement prior to disclosure to such employees to assure against unauthorized use or disclosure of the Confidential Information.
This non-disclosure commitment is not applicable to information already known in the public domain as of its disclosure or which subsequently becomes available to the public through no breach of this section by the Client.
15.2. Data protection.
Where FAMOCO collects and processes personal data of individuals within Client’s organization, it shall be authorized to do so under the terms of the data protection policy available at https://www.famoco.com/fr/privacy-policy/
Client shall comply with any and all applicable legislation in connection with personal data protection and, in particular, shall be solely responsible for making any request or fill in any form in order to obtain the necessary authorizations in connection with the process of data with the MDM or DAAS Subscription, as the case may be. Client shall also inform any individual concerned by the process of personal data and obtain its consent as provided for by applicable legislation. Client undertakes to process and keep personal data in compliance and only for the furtherance of the purposes as declared to competent authorities, as the case may be, and for which it is authorized to have access and process, and shall indemnify and hold FAMOCO harmless thereof.
Client acknowledges that no critical or personal data should be uploaded into or otherwise integrated into the MDM or DAAS Subscription except with prior notice to FAMOCO. Should Client wish to inject or integrate personal data in the MDM or DAAS Subscription under the optional functionality provided under MDM, only its personnel or own clients’ name, device number and e-mail address may collected in the MDM tool (“Data”).
In such event, Client shall act as controller and should provide FAMOCO with documented instructions for FAMOCO to act as subcontractor processor in accordance with European data protection legislation.
The Client (i) shall be fully responsible for the quality of all data integrated into the MDM or DAAS Subscription, in particular with respect to the competent authorities, i.e. their accuracy, integrity, lawfulness, and relevance, and the Client guarantees, as data controller, that all instructions it gives to FAMOCO concerning such data comply with applicable regulation ; (ii) shall prevent any unauthorized use of the MDM or DAAS Subscription and shall inform FAMOCO immediately in case of any attempt at unauthorized use; and (iii) undertakes to comply with all applicable laws when using the MDM or DAAS Subscription, including in particular the applicable regulation on personal data. In particular, the Client shall inform the data subjects of the processing operations, at the time of the collection of their data, of their rights under the applicable regulations protecting personal data.
The operations carried out on the Data are their recording, storage and processing in the MDM or under the DAAS Subscription.
The purpose of the processing of the DATA is the use of the Device, by the Client or its own clients, as the case may be. Under this subcontracting process, FAMOCO undertakes to :
– process the data only for the sole purpose of the operation and maintenance of MDM or DAAS Subscription ;
– process the data in accordance with any documented instructions notified by Client, the Client being the controller. If FAMOCO considers that an instruction constitutes a violation of the applicable regulations on data protection, it will immediately inform the Client. In addition, if FAMOCO is required to transfer data to a third country or to an international organization under European Union legislation or French law that may apply, it shall inform the Client of this legal obligation before processing, unless the law concerned prohibits such information on public policy grounds.
– guarantee the confidentiality of the personal data processed under the present agreement ;
– ensure that the persons authorised to process the personal data under the present agreement (i) undertake to maintain the confidentiality or are subject to an appropriate legal obligation of confidentiality and (ii) receive the necessary training on data protection.
– take into account data protection principles from the design stage and default data protection, under the MDM or DAAS Subscription.
FAMOCO is authorized to use Amazon Web Services to host the MDM or DAAS Subscription and the data collected, processed and stored in the MDM or DAAS Subscription (hereinafter the “ Sub-processor “).
Should FAMOCO hire other Sub-processors , it will inform the Client previously and in writing of any planned change. This information must clearly indicate the subcontracted process activities, the identity and contact details of the Sub-processor and the dates of the subcontracting process agreement. The Client has fifteen (15) days from the date of receipt of this information to present objections. Such subcontracting process may only be carried out if the Client has not objected within the said period.
In any event, the Sub-processor shall be bound to comply with the obligations of these GC on behalf of and in accordance with the Client’s instructions. FAMOCO shall ensure that the Sub-processor presents the same sufficient guarantees as regards the implementation of appropriate technical and organizational measures so that the processing meets the requirements of the applicable data protection regulations. If the Sub-processor does not comply with the data protection obligations, FAMOCO will remain fully responsible to the Client for the performance by the Sub-processor of its obligations.
As far as possible, FAMOCO shall assist the Client in fulfilling its obligation to comply with requests to exercise the rights of data subjects: right of access, rectification, deletion and opposition, right to limit processing, the portability of data, right not to be subject to an automated individual decision (including profiling).
When data subjects make requests to FAMOCO to exercise their rights, FAMOCO must send these requests upon receipt to the Client by any written means agreed between the parties.
FAMOCO will notify the Client of any violation of personal data within a maximum period of forty-eight (48) hours after becoming aware of it. This notification is accompanied by any useful documentation in order to allow the Client, if necessary, to notify this violation to the competent control authority.
FAMOCO undertakes to implement technical and organizational measures to ensure a level of security appropriate to the risk, in accordance with applicable regulations.
FAMOCO makes available to the Client the documentation necessary to demonstrate compliance with all of its obligations and to allow the performance of audits, including inspections, by the Client or another auditor it has mandated, and to assist in these audits.
Upon termination of the agreement, FAMOCO undertakes to return all personal data to the Client or to return the personal data to the subcontractor designated by the Client.
In addition to their return, FAMOCO shall carry out the destruction of all existing copies in FAMOCO’s information systems. Once destroyed, FAMOCO will justify of the destruction in writing.
FAMOCO shall be automatically discharged from any and all commitment relating to orders in the event of the occurrence of a case of force majeure, including but not limited to strikes, fire, explosion, floods, serious accidents, earthquakes, or in any event outside FAMOCO’s control, including difficulties in the supply of raw materials or spare parts, changes to applicable regulations or delays or outages caused by an internet service provider or independent hosting facility.
Client acknowledges that the export of the MDM, FAMOCO OS and documentation, including technical data, may be subject to export or import control and Client agrees that they will not be exported (or re exported from a country of installation) directly or indirectly, unless Client obtains all necessary licenses from the U.S. Department of Commerce or other agency as required by law. In furtherance of Client’s export restriction agreements set forth above, Client agrees as follows: (a) Client represents that it is not under the control of the government of a country to which the United States has prohibited export; (b) Client will not download or otherwise export or re-export the MDM, FAMOCO OS and documentation, directly or indirectly, to the countries referenced above or to citizens, nationals or residents of those countries; (c) Client represents that it is not listed on the United States Department of Treasury lists of Specially Designated Nationals, Specially Designated Terrorists, and Specially Designated Narcotic Traffickers, nor is Client listed on the United States Department of Commerce Table of Denial Orders; and (d) Client will not allow the MDM, FAMOCO OS and documentation to be used for any purposes prohibited by United States law, including, without limitation, for the development, design, manufacture or production of nuclear, chemical or biological weapons of mass destruction.
18-APPLICABLE LAW – COMPETENT COURT
Any order issued by Client shall be governed by French law.
Before bringing any legal action, parties shall try to settle, in good faith, any dispute in connection with the validity, performance and termination of the order or their relationship. Parties shall meet in order to share their points of view and to try to find a solution to their dispute.
Parties shall make their best efforts to achieve an amicable settlement within 30 days from the notification made by one of them by registered letter with acknowledgement of receipt in order to find an amicable settlement.
Failing to find an amicable settlement, the parties expressly agree that all disputes in connection with the implementation of an order shall be submitted to the exclusive jurisdiction of the commercial tribunal of Paris, France, including in case of exceptional or provisional proceedings, multiple defendants or introduction of third parties.
Moreover, any judicial action by Client shall have to be brought within a period of one year of receipt of the order. After such period, the Client’s action shall be void.