ELSE CARE GENERAL TERMS AND CONDITIONS
These General Terms and Conditions for Services aim to define the conditions in which ELSE CARE, publisher of the website https://www.carenity.com, https://www.carenity.co.uk, https://www.carenity.es, https://www.carenity.it, https://www.carenity.de and https://www.carenity.us and of the back office space accessible at the address http://www.app.patient-live.com provides its clients (hereafter the “Client(s)”) with the Services (as this term is defined below) defined in the Special Terms and Conditions for Services signed by the Client and made in application of these General Terms and Conditions for Services.
The General Terms and Conditions for Services, the Special Terms and Conditions for Services relating to the Services selected by the Client at http://www.app.patient-live.com and the Data Protection Agreement form the “Agreement” between the CLIENT and ELSE CARE (hereinafter the “Parties”).
The terms defined below will have the meaning given to their definition for the requirements of interpreting and executing this Agreement:
- “Content”: means all text, images, videos, features, modules, interfaces and more generally all elements existing within the Platform and its Services;
- “Agreement”: the contractual whole formed by these General Terms and Conditions for Services and the Special Terms and Conditions for Services made for their application and signed by the Client; if there is a divergence between the provisions in the General Terms and Conditions and the Special Terms and Conditions, the provisions of the Special Terms and Conditions for Services shall prevail over the General Terms and Conditions for Services.
- “Client Content”: means the elements created, developed and/or produced by the Client on the Platform via the Services or outside the Platform for their display on the Platform and especially documents, questionnaires, assessments, forms, tests, compulsory references accompanying these documents, questionnaires, assessments, forms, tests and other elements, including their wording and formulation and their format(s);
- “Studies”: means surveys, assessments and tests, defined exclusively by the Client under its sole liability; in particular, the Client is solely liable for the legal qualification of the studies in the sense of the provisions of the French Public Health Code and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 applicable as of 25 May 2018, the amended Act of 78-17 of 6 January 1978 relating to Data Processing, Data Files and Individual Liberties, and agrees and guarantees that it will not carry out human interventional research via the Services;
- “Platform”: means all the web space published by ELSE CARE accessible (i) at the address https://www.carenity.com, https://www.carenity.co.uk, https://www.carenity.es, https://www.carenity.it, https://www.carenity.de and https://www.carenity.us enabling Users to share their experiences and monitor their health changes and (ii) via a back office space accessible at the address http://www.app.patient-live.com enabling ELSE CARE’s Clients to benefit from paying Services specified in the Special Terms and Conditions for Services.
- “Services”: means the services offered by ELSE CARE via the Platform aimed at Users with a view to inviting them to participate in Studies, and which are defined for each Client in the Special Terms and Conditions for Services;
- “Users”: means the various categories of people affected, directly or indirectly, by a chronic illness and who are users of the Platform.
3 EFFECTIVE DATE-TERM
The Agreement takes effect from the signature by the Parties of the Special Terms and Conditions and remains in force for the whole term referred to in the said Special Terms and Conditions for Services, unless terminated in the conditions defined below.
4 TERMS OF PERFORMANCE OF THE SERVICES
It is up to the Client to define its requirements and to ensure that the characteristics of the Platform and the Service(s) chosen and defined in these Special Terms and Conditions are adapted to them, taking into account the objectives it is pursuing and the Studies that it wishes to undertake.
Access and use of the Services by the Client for the implementation of its Studies are subject to the signature of the Special Terms and Conditions for Services by the Client and their approval by ELSE CARE. The use of the Services ends with effect from the termination and/or cancellation of the Agreement for any reason whatsoever.
ELSE CARE reserves the right to change the Platform and terms of provision as well as the Content of the Services at any time without prior notice or need to previously inform the Client.
The Client acknowledges that the Users of the Platform have both fundamental rights and rights attached to the protection of their personal data and that, in this capacity, they are totally free to participate or not participate in the Client’s Studies offered by ELSE CARE and to refuse, at any time, to participate in any action proposed by the Client via the Services on the Platform, without having to give reasons. The Client acknowledges that ELSE CARE is in no way liable in any capacity whatsoever for the consent or refusal to participate in a Client Study and, where applicable, for the data provided by Users.
The planned schedule for provision and implementation of the Services covered in the Agreement is defined by mutual agreement in the Special Terms and Conditions for Services.
The deadlines specified in them are for information only.
Where applicable, the Parties may agree to adapt and/or change this schedule prior to the provision and/or the effective implementation of the Services.
It is expressly agreed between the Parties that no penalty of any nature whatsoever may be imposed on ELSE CARE for a delay in the provision and/or availability of the Services with regard to the planned, indicative deadlines set in the schedule.
6 THE PARTIES’ OBLIGATIONS
6.1 The Client’s obligations
To enable ELSE CARE to provide the Services in the best conditions, the Client agrees to communicate, prior to the implementation of the Services and to any use of the Platform, any specific feature of its Study which might be incompatible with the use of the Platform and/or the Services.
During the Agreement, it undertakes:
- to inform ELSE CARE of any problem that it might encounter in using the Services;
- where applicable, to provide ELSE CARE with information which might be necessary for the provision of the Services.
Compliance of the Services
The Client agrees, gradually as the Services are accessed, to check the compliance of the Services with the Agreement and to issue any reservations that it considers necessary.
In this case, it is expressly agreed between the Parties that the Client has a period of 15 (fifteen) days with effect from the start of its access to the Services and/or the provision of the Service by ELSE CARE to express reservations, failing which the Services concerned will be considered as compliant and definitively accepted and approved by the Client.
The Client shall refrain from registering on the Platform as a User.
The Client acknowledges that it is exclusively responsible for the compliance of its use of the Services and/or the Platform as well as for the compliance of the Client Content (and especially the questionnaires and/or the wording of the Studies) that it uses on the Platform in compliance with the French Public Health Code, the amended Act 78-17 of 6 January 1978 and with the General Data Protection Regulation and all the regulations applicable to its activity and to the products and services that it markets, as well as to the legal qualification of the Study implemented both with regard to the use of the Services and the Client Content that it displays.
The Client agrees to use the Services in accordance and in compliance with:
- the stipulations of this agreement and with the provisions and instructions for safety, use and proper operation sent by ELSE CARE to the Client through any means;
- all the regulations applicable to its activity and to the products and services that it markets, as well as to the legal qualification of the Study implemented in the context of using the Services and of the Client Content that it displays;
- and especially the applicable regulations on studies involving and not involving human beings in the sense of the French Public Health Code, healthcare products and medicines;
- for the sole specific needs of the Client, to the exclusion of any commercial use or in favour of a third party to the Agreement and in accordance with their intended purpose.
It agrees to use the Services and the Platform and to display Client Content on the Platform and especially questionnaires and legal references regarding the Studies:
- not contravening the rights of third parties and especially their copyrights and their property rights;
- not harming the privacy of others, personality rights and image rights of any person;
- not harming the protection of minors and medical secrecy;
- ensuring the respect of Users;
- guaranteeing the respect of the amended Act 78-17 of 6 January 1978 on Data Processing, Files and Freedoms and of the General Data Protection Regulation of 27 April 2016;
- not constituting press offences.
It shall refrain from using the Services and/or the Platform:
- With a view to inciting the recommendation, prescription, purchase or sale of medicines or to influencing the results of a clinical trial;
- As tools to promote a product, service, a healthcare institution or even a healthcare professional;
- For any purposes of commercial, promotional or advertising prospection.
The Client shall take responsibility for displaying the Client Content in the context of the Services via the Platform and agrees to provide ELSE CARE, upon request, with all Client Content, in order to ensure that the Client has respected the provisions of these General Terms and Conditions for Services, Special Terms and Conditions for Services and the compulsory regulatory and legislative provisions applicable to the Client’s activities and the Client Content that it displays.
In the event of obvious violation of such provisions, ELSE CARE reserves the right to suspend the Client’s access to the Services concerned and to end the Agreement in the conditions of clause 11 “Liabilities” below.
The Client’s obligations with regard to the application of compulsory provisions
The Client shall personally take care of all (declarative) obligations (obtaining all authorisations, giving all notifications and/or carrying out all procedures) which would be its responsibility due to its use of the Services and/or of the Platform and/or of its Client Content and/or its Study displayed in the context of its Services.
In particular, the Client acknowledges that it must undertake all applicable, prior formalities with the CNIL (Commission Nationale de l’Informatique et des Libertés [French National Commission for Information Technology and Civil Liberties]) in its capacity as data controller of the Studies implemented under its responsibility via the Services.
Where applicable, the Client must publish the information required by the legal and regulatory so-called transparency obligations in application of the provisions of article L.1453-1 of the French Public Health Code and the regulatory texts passed for its application, which ELSE CARE accepts. The Client shall take care of the pharmacovigilance and/or materiovigilance obligations which are its responsibility where applicable.
In the event of failure to respect the provisions of this clause 6.1, access to the Services and/or to the Platform may be unilaterally and without prior notice temporarily suspended by ELSE CARE.
6.2 ELSE CARE’s obligations
ELSE CARE agrees to provide the Services in a consistent and coordinated manner.
ELSE CARE agrees to provide the Services in respect of the obligations defined in the Agreement and to allocate the necessary means so that the Services provided comply fully with the applicable regulations in force.
ELSE CARE provides Services complying:
- with the safety measures required by the recommendations of the CNIL and the ASIP Santé (Agence des Systèmes d’Information Partagés de Santé [Shared Information Systems Agency for Health]);
- with the undertaking to conform to the reference methodology “MR003”, or any other reference methodology that would replace it, to which ELSE CARE declares it has subscribed
7 QUALITY AND ACCESS TO THE SERVICES
7.1 Quality of the Services
ELSE CARE agrees to implement all necessary technical means to ensure the proper operation of its Platform enabling the access and use of the Services during working hours (general access to the Platform, programming of a questionnaire and access to the results: 7 days a week, 24 hours a day – approval and placing online of a survey by Carenity within 48 hours: from Monday to Friday, from 9.00 am to 6.00 pm) and to offer the best possible availability rate of the Service, except in the event of force majeure or an event beyond the control of ELSE CARE and subject to any breakdowns and maintenance tasks required for the proper operation of the Platform and the Services.
With regard to the complexity of the Internet, to the unequal capacities of the various sub-networks, of the influx of Users at certain times, of the various bottlenecks over which ELSE CARE has no control, ELSE CARE does not guarantee:
- the continuity of the proper operation of the Platform, access to it or to the Services, the absence of errors or the immediate correction of errors and/or malfunctions;
- the continuity of total computer security of the Platform and the absence of viruses in the Services.
ELSE CARE may not be held liable for these risks and their harmful consequences for the Client, regardless of their extent.
If the Services become unavailable, ELSE CARE agrees, outside of scheduled maintenance tasks, to restore them as soon as possible after unavailability has been detected.
7.2 Access to the Services
ELSE CARE may interrupt the Services, without committing its liability and without fault being attributed to it, for the purposes of maintaining its servers and the Platform, and will previously inform the Client of this wherever possible.
Scheduled maintenance means maintenance tasks carried out as far as possible during periods of reduced use of the Services.
ELSE CARE may also suspend all or some of the Services and their features without prior notice in the event:
- of a breach on the Platform likely to affect the operation of the Services, and/or of the Platform and/or of servers,
- of misuse of the Services by the Client likely to affect the operation of the Services and/or of the Platform,
- of the Client’s failure to respect the obligations referred to in the Agreement,
- of a request or petition by a legal or administrative authority rendering such a suspension necessary.
ELSE CARE agrees to do its utmost to restore the Services in the event of breach.
8 PERSONAL DATA
The purpose of the present provisions is to define the conditions under which ELSE CARE, in its capacity as processor, undertakes to carry out on behalf of the Client, the Personal Data Processing operations carried out within the framework of the Services, within the meaning of:
- the Law n°78-17 of January 6, 1978 relating to Data Processing, Data Files and Individual Liberties, amended (hereafter the “Data Protection and Civil Liberties Act”) and,
- Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC [General Data Protection Regulation] (hereinafter the “GDPR”),
- the Data Protection and Civil Liberties Act and the GDPR being jointly referred to as the “Regulation” within the present provisions.
Within the framework of their contractual relations, the Parties undertake to comply with the Regulation.
With regard to the Regulation, it is specified that:
- The Client is the Data Controller for the processing that it carries out when using the Services for the implementation of one or more Studies;
- ELSE CARE acts, within the meaning of the Regulation, as a Data Processor on behalf of the Client.
The Appendix “Agreement on the protection of personal data” applies to all operations of processing of personal data carried out by ELSE CARE on behalf of the PROMOTOR, Data Controller, in the sense of the Regulations in execution of the Agreement.
The Client is informed that ELSE CARE has carried out the prior reporting formalities with the CNIL to invite Platform Users to participate in certain Services and notably in Studies, and only in this strict purpose of inviting them to participate in a Study.
The Client shall refrain from any use of data outside the strict framework defined in the Agreement.
9 FINANCIAL CONDITIONS
9.1 Price and terms of payment
The Services are paying services and the prices corresponding to the provision of the said Services are fixed in the Special Terms and Conditions for Services attached to these General Terms and Conditions for Services.
They are exclusive of taxes and taxes will be added to them, in particular, VAT, at the rate in force on the invoicing date.
The licence is invoiced as soon as the access to the Platform is set up. Credits are invoiced as soon as they are charged to the Client’s account.
The payments are made by bank transfer in the conditions defined in the Special Terms and Conditions for Services.
Any claim regarding an invoice must be sent to ELSE CARE’s accounts department by registered letter with acknowledgement of receipt within eight (8) working days following the issuing of the invoice.
The Client agrees to pay the invoices in accordance with the provisions of the French law on the modernisation of the economy of 4 August 2008, at the latest within 30 days of the invoice date.
By express agreement and unless an extension is sought in due time and granted by ELSE CARE as a special concession in writing, the Client’s failure to pay on the due date will automatically and without prior formal notice lead to:
- the forfeiture of all terms of the credits due and they will become immediately payable, regardless of the method of payment which had been arranged,
- the invoicing of interest equal to three times the legal rate of interest,
- in addition to these late payment penalties, an obligation for the Client to pay a fixed indemnity of forty euros (€40) for recovery costs, while it is specified that an additional indemnity may be claimed, upon presentation of receipts, when the recovery costs incurred are greater than the amount of the fixed indemnity;
- the suspension of the Service(s) concerned until agreement between the Parties or the immediate and automatic termination of the Agreement.
9.2 Additional services
Any additional service provided and/or made available by ELSE CARE for the requirements or at the request of the Client outside the limits of the Services will be included in an additional quotation based on the prices in force and an additional invoice after the Client has accepted the quotation.
10.1 Termination for default
In the event of failure by either Party in its obligations, not remedied within a period of 30 (thirty) days with effect from the notification of the failure by registered letter with acknowledgement of receipt, sent by the other Party, either Party may enforce the automatic termination of the contractual relations between the Parties, subject to any damages that it may claim under the Agreement.
10.2 Early termination
The Client may terminate the Agreement concluded with ELSE CARE early, by sending a registered letter with acknowledgement of receipt notifying it of its decision giving reasons, respecting a prior notice period of 3 months with effect from this letter.
Taking into account the nature of the Services provided, ELSE CARE reserves the right to terminate the Agreement early, by sending the Client a registered letter with acknowledgement of receipt notifying it of its decision giving reasons, respecting a prior notice period of 3 months with effect from this letter.
10.3 Termination in the event of injunction from the health authorities
In the event of a request to end the Services and/or the Studies implemented by the Client, made by a health authority, in accordance with the prerogatives and procedures defined in this capacity in the French Public Health Code, the Agreement concluded between the parties will be terminated automatically, without prior formality, on the end date of the Services organising the termination of the conducting of the Services and/or the studies required by the health authority.
10.4 Financial consequences
The amount of the sums owed to ELSE CARE by the Client in the event of termination for any reason whatsoever is equal to the aggregate amount of the items described below:
- taking account of the mobilised resources and the commitments initially made, a contractual payment for early termination amounting to 100% excluding taxes of the annual amount of the Services provided by ELSE CARE. Unspent credit will not be reimbursed.
These sums are owed to ELSE CARE notwithstanding all damages that ELSE CARE might claim due to direct or indirect losses suffered by it resulting from the early termination.
It is expressly agreed between the Parties that all the Services provided by ELSE CARE are subject to a best efforts obligation.
The Parties acknowledge that the provision of the Services by ELSE CARE is under no circumstances likely to limit or exclude the liability that each Party assumes with regard to itself concerning its legal and regulatory obligations as they result from the French Public Health Code and other legal texts in force.
The Services provided by ELSE CARE, in accordance with the description appearing in ELSE CARE’s commercial offer, are strictly of a technical nature, and under no circumstances, for any reason whatsoever does ELSE CARE assume the health-related, regulatory, scientific or medical liability of the Client’s Study and/or its use of the Service and/or Client Content.
The Client assumes full and entire liability for the use of the Services and/or the Study and/or the Client Content displayed on the Platform (and especially for the validation and/or the relevance and/or the content of the questionnaires and their wording) as well as the regulatory compliance of the use of the Services for the requirements of the implementation of the Studies.
ELSE CARE declines any liability for:
- the validation of the legal, scientific and medical compliance and/or the relevance and/or the Client Content (and especially for the questionnaires, their wording and their content) prepared by the Client and displayed on the Platform in the context of the Services;
- the Client’s error of choice or judgement or the unsuitability of the Services and/or of the Platform for its requirements;
- the unsuitability of the Client Content (and especially of the questionnaires and their wording) displayed on the Platform by the Client for the project and especially for the envisaged Study.
ELSE CARE declines any responsibility if the data collected through the use of the Services:
- do not satisfy the requirements of quality and content envisaged by the Client;
- were insufficient to enable the Client to satisfy the economic and/or medico-economic and/or scientific and/or health objectives whatever they are which it set itself for its Study;
- and if an insufficient number of Platform Users came forward to use the Services by the Client and especially to participate in the Studies.
ELSE CARE may not be held liable for any direct or indirect damage, regardless of its causes (including damage that might have been caused by any spreading of viruses, by computer fraud or due to the restrictions and limitations of the Internet network) related to the Studies, to the use of the Services by the Client and more generally to its Studies and notably ELSE CARE may not in any way be held liable (including for their consequences):
- for interruption, modification, suspension of the Services and/or of the Platform taking place in the conditions of clause 7 above with the exception of the direct damages resulting from gross negligence or wilful misconduct;
- for poor transmission (and especially for the integrity of the Client Content transferred) due to a failure or malfunctioning of these networks;
- for the presence of a virus within the Services;
- more generally, any cause beyond its reasonable control.
ELSE CARE excludes any liability in the event of:
- misuse of the Platform and Service modules by the Client or by the Users who have accepted to participate in the Study;
- the presence of errors that may come from the Client Content used by the Client;
- failure of the Client;
- more generally, any cause beyond its reasonable control.
In the event of a conviction against ELSE CARE, the damages imposed on it will be, by mutual agreement, expressly limited to 50% of the sums effectively paid by the Client to ELSE CARE for the provision of the Services covered by the Agreement, the cause of ELSE CARE’s liability, during the calendar year during which the loss occurs.
12.1 Intellectual or industrial property
The Client guarantees ELSE CARE against any claim, opposition, dispute and any legal action by any person invoking an intellectual or industrial property right or other right allegedly harmed by the Client Content displayed in the context of the Services.
In this respect, the Client guarantees ELSE CARE against any legal action by any person invoking an intellectual or industrial property right regarding any of these elements allegedly harmed by the implementation of the Services.
The Client agrees to accept liability for all damages that might be charged to ELSE CARE, as well as all legal or expert’s fees and to hold ELSE CARE harmless of any conviction, and/or of any payment of agreed compensation on this subject.
12.2 Actions instituted by the authorities
The Client guarantees ELSE CARE against:
- any conviction, claim, remedy or action for breach due to the Client’s failure to respect the provisions which are entrusted to it by the Act No. 78-17 of 06 January 1978 called the “Data Processing and Freedoms Act” under the implementation of the Studies via the Platform’s Service;
- any action that might be instituted against ELSE CARE for the non-compliance of the Client Content displayed by the Client on the Platform and/or the Studies;
- any conviction, claim, remedy or action for breach of any applicable regulation due to the use by the Client of the Services and/or the Platform and/or applicable to the display of its Client Content and/or its Studies via the Services.
The Client agrees to accept liability for all damages that might be charged to ELSE CARE, as well as all legal or expert’s fees and to hold ELSE CARE harmless of any conviction, and/or of any payment of agreed compensation on this subject.
13.1 Ownership of the Client Content and its results
The Client Content displayed on the Platform by the Client with a view to carrying out the Studies in the conditions of the Agreement, as well as the results of studies and/or surveys and/or assessments carried out on the Platform by the Client are the Client’s property.
13.2 Ownership of the Services and Content
The rights to use and access the Platform and the Content are granted to the Client by ELSE CARE for the exclusive requirements of the provision of the Services and only for the term of the Agreement.
Any other use and/or access not authorised by ELSE CARE under the Agreement is not compliant with the provisions of the Intellectual Property Code and therefore illegal.
Any use, reproduction, copy, dissemination of one or several elements of the Services and/or Content in a context other than the one authorised in the Agreement is prohibited.
Thus, the Client is notably prohibited from:
- any use of the modules and of the Platform, outside the strict framework of the Agreement;
- any representation, dissemination, adaptation, marketing or provision to the public either free of charge or in exchange for payment of the Services, the Content and their structure, as well as all or part of the Platform, whether free of charge or in exchange for payment;
- any form of use of the Services, the Content and of the Platform, in any manner whatsoever, for the purposes of design, production, dissemination or marketing of replacement, equivalent or similar e-health solutions, content or services;
- any link, access, modification, addition, deletion which affects the computerised processing system of the online publishing and which changes the conditions of publication or the editorial policy;
- any direct or indirect provision of the Services, the Content and all or part of the Platform to the benefit of a third party including within its group, especially by lease, assignment, loan as well as any use for the provision of services to a third party or by a third party whether this is free of charge or in exchange for payment;
- any adaptation, modification, transformation, arrangement of Services or Content and of the Platform, especially with a view to creating new or derived features, topics and/or new services;
- any total or partial integration of the Services, the Content and all or part of the Platform in an information system other than the one provided to the Client in the strict framework of executing this Agreement;
- any direct or indirect transcription, or translation into other languages of all or part of the Platform as well as their even partial modification, with a view notably to use on any Client Content other than the one provided to the Client, where applicable.
The Client acknowledges that the Agreement does not lead to the transfer of any intellectual property right to the Client’s profit.
ELSE CARE retains the full title for the Services and Content as well as the elements accompanying them and the information contained in the Content, but also of all elements, possibly with the authorisation of the holders of these rights, which might be integrated in or accompany the Content and especially their presentation, design, graphic charter, any plan, graphic, text, photography, sounds, images but also their functionality, tree structure, navigation plan, design and organisation of topics, their present and future titles.
ELSE CARE is also and remains the holder of all property rights regarding:
- Any information, elements of know-how, specification documents and more generally all elements regarding the Services and its components;
- The names, initials, logos, colours, graphic designs, or other signs used by ELSE CARE for the provision and/or delivery of the Services.
The Client shall consequently refrain from reproducing in any form whatsoever, in a direct or indirect manner, the elements referred to in the previous paragraph, or from changing the names, initials, logos, colours, graphic designs or other signs to which it might have access in the context of the Services, and, more generally, from using or exploiting these elements apart from within the limits of the Contract.
The Client shall refrain from filing any patent for its own account for the account of a third party, in connection with the know-how of ELSE CARE, the Platform, the Content and the Services.
13.3 Ownership of databases
Intellectual property of the structure of databases
Each structure of each database, created for the use of the Services is the exclusive property of ELSE CARE, with regard to the original character of the structures of databases created in this way by it, which the Client acknowledges and accepts.
ELSE CARE hereby grants to the Client, who accepts it, a non-exclusive right to use the structure of the databases created in the context of the Services provided and/or placed at its disposal.
This right to use is granted only for the term of the Agreement and for the French territory.
Also, this right to use is limited in the following manner:
- use of the structure of the databases by consulting the databases created via the Services for the requirements of monitoring and using the content of the said databases in the context of using the Services;
- use of the structure of the databases for the extraction of the data that they contain with a view to analysing and using the results of the study and/or survey and/or assessment.
Consequently, the Client shall refrain from any other use of the structure of the databases and especially shall refrain from any provision through any method whatsoever, either free of charge or in exchange for payment and, notably, through loan, rental, transfer in favour of a third party, either wholly or partially, by reproduction or by representation of the structure of the said databases.
The Client acknowledges that the transfer of the rights to use granted in this clause do not entail any transfer of any right.
Ownership of the content of the databases
It is expressly agreed between the parties that the Client has the capacity of producer in the sense of the Act of 1 July 1998 regarding the legal protection of databases and, in this capacity, has the full producer rights over the content of all the databases created in the context of the Studies implemented via the Services.
13.4 Ownership of the elements of intellectual property and trademarks
The Client acknowledges that CARENITY and the CARENITY logo are registered trademarks of ELSE CARE. Unless the Client has express, prior authorisation, any (total or partial) reproduction and use of these trademarks, whether figurative or not, belonging to ELSE CARE, exposes the Client to legal action.
The Client acknowledges that ELSE CARE has on www.carenity.com, in an exclusive capacity, all the industrial and intellectual property rights which apply to it, in the sense of French law and applicable international legislation. Any use not expressly authorised by ELSE CARE in the sense of these General Terms and Conditions for Services is illegal in accordance with the provisions of the French Intellectual Property Code. Thus, the Client is notably prohibited from:
- any reproduction, through any means whatsoever of carenity.com, carenity.co.uk, carenity.es, carenity.it, carenity.de, www.carenity.us, and/or any representation, dissemination or marketing of carenity.com, carenity.co.uk, carenity.es, carenity.it, carenity.de, www.carenity.us, and its content or its presentation, whether this is free of charge or in exchange for payment;
- any form of use, adaptation, modification, transformation, arrangement of www.carenity.com in any way whatsoever for the purposes of design, production, dissemination or marketing of similar services or for any other reason whatsoever;
- any direct or indirect transcription or translation into other languages of www.carenity.com
Any use of www.carenity.com not complying with these General Terms and Conditions of Services and/or any damage, any representation, reproduction, modification, any provision by a third party, in any capacity whatsoever, free of charge or in exchange for payment, any total or partial commercial use, of the various elements of www.carenity.com is prohibited and exposes its author(s) to civil and/or penal sanctions.
Each Party agrees to only communicate the confidential information received from the other party at the time of performing this agreement to their agents, advisers or affiliated companies who absolutely need to know it in the context of performing these general terms and conditions.
Each Party agrees to respect the strictest confidentiality regarding the confidential information received from the other party at the time of performing the Agreement for the term of the Agreement and for a period of 10 years after its expiry.
The Parties agree to collaborate closely in the context of their relations and the performance of this Agreement.
In the event of difficulties, the Parties will meet to identify the origin of the difficulties and the actions to be implemented in order to resolve them.
In particular, each Party agrees to communicate any difficulties that it encounters with regard to its experience, gradually as it performs its obligations, in order to enable them to be taken into account as soon as possible, thus helping to ensure the successful performance of the Agreement.
The Parties, each with regard to what concerns them, agree to take out an insurance policy to cover the prejudicial consequences of the risks related to the Services provided and/or delivered in performance of the Agreement.
17 SUBCONTRACTING – ASSIGNMENT
ELSE CARE may call on a third party supplier and/or service provider in order to entrust to it the production of all or some of the Services provided which the Client accepts.
If ELSE CARE calls on a third party provider or supplier in any capacity whatsoever only the third party supplier and/or provider concerned is exclusively liable for the Services provided, which the Client acknowledges and accepts.
ELSE CARE may assign these general terms and conditions at any time to a subsidiary or to a successor, regardless of the operation. The Client is not authorised to assign its agreement with ELSE CARE.
18 AGREEMENT ON EVIDENCE
The parties acknowledge that the evidence for tasks, exchanges and notifications which take place between them for the requirements of the conclusion of the Agreement and its performance, come from ELSE CARE’s information system.
For this purpose, the Client acknowledges and accepts that the computerised records stored on the processing servers of ELSE CARE’s electronic files, or within its information system, in reasonable conditions of security and integrity, are considered, in an irrefragable manner, as evidence of the tasks, exchanges and notifications which take place for the requirements of the conclusion of the Agreement and its performance.
The Client acknowledges that it has been informed that the signature of this Agreement could take place electronically and acknowledges that it has accepted these terms of signature as well as their consequences in full knowledge of the facts.
In particular, the Client acknowledges and accepts that any expression of will by electronic means such as e-mails, and in particular the General Terms and Conditions for Services, the Special Terms and Conditions for Services and the Data Protection Agreement by sending an e-mail, constitutes an electronic signature within the meaning of the provisions of Articles 1366 et seq. of the Civil Code, and manifests its consent by characterising its proof.
It acknowledges that in accordance with the provisions of articles 1366 et seq. of the French Civil Code, the implementation of this electronic signature constitutes the manifestation of its express consent to this Agreement and accepts that the said electronic signature is considered as its valid signature and as evidence in the sense of the above-mentioned provisions.
Each party acknowledges and guarantees that it has maintained control with regard to any third party over the whole electronic signature process as well as over the means used at the time of the process, guaranteeing that it alone could have carried it out.
Consequently, notwithstanding an obvious, proven error by ELSE CARE, the Client may not contest the admissibility, validity or probative force of the elements in the above-mentioned electronic medium or format, on the basis of any legal provision whatsoever that might specify that certain documents must be written or signed in order to constitute evidence. Thus, the elements in question constitute evidence and, if they are produced as means of evidence by ELSE CARE in any litigation or other procedure, they will be admissible, valid and enforceable in the same way, in the same conditions and with the same probative value as any written document drawn up, received or stored.
19 GENERAL PROVISIONS
If one or several stipulations of these general terms and conditions are held to be invalid or declared as such in application of a law, regulation or following the definitive decision of a competent jurisdiction, the other stipulations will retain their full force and scope.
20 SETTLEMENT OF DISPUTES
IN THE EVENT OF A DISPUTE OVER THE PERFORMANCE OR THE INTERPRETATION OF THE AGREEMENT, COMPETENCE IS ATTRIBUTED TO THE PARIS COMMERCIAL COURT NOTWITHSTANDING MULTIPLE RESPONDENTS OR THIRD PARTY APPEALS EVEN FOR URGENT OR PREVENTIVE MEASURES, BY APPLICATION FOR SUMMARY PROCEEDINGS OR BY PETITION.
This Agreement is governed by French law.