QODLY PLATFORM LICENSE
You should read carefully all the terms and conditions of this Agreement, as defined below, between 4D SAS, a French "Société par Actions Simplifiée" (hereinafter referred to as "4D") and yourself acting for purposes relating to your professional activity (hereinafter referred to as "CLIENT").
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE AND/OR BY INSTALLING OR OTHERWISE USING THE PLATFORM YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THE PLATFORM AND THE 4D SERVICES.
IF CLIENT IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, IT REPRESENTS THAT IT HAS THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE WORD “CLIENT” SHALL REFER TO SUCH ENTITY. IF CLIENT DOES NOT HAVE SUCH AUTHORITY, OR IF CLIENT DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, CLIENT MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT PROCEED WITH THE DOWNLOADING, COPYING, INSTALLATION OR ANY OTHER USE OF THE PLATFORM OR ANY 4D SERVICES.
This Agreement defines the terms and conditions of the QODLY Platform license and associated services.
This license only extends to the Platform for which CLIENT has regularly purchased a license and for the licence metrics set out in the Subscription form.
0. Beta version (READ CAREFULLY)
As of September 2023, 4D releases a beta version of the QODLY Platform. This version gives access to the Sandbox Plan only and does not allow Client to use the Development, Staging and Production Environments.
The purpose of the beta version is to have our clients try the QODLY Platform, collect feedback, answer Client’s questions and requests and improve our products, features, and services. 4D will therefore track the usage of the Developers in the Sandbox Environment, only for such purposes.
The conditions of service rendered by 4D for this beta version are defined in the “QODLY Beta Service Level Agreement”, available here: https://qodly.com/qodly-beta-service-level-agreement . Ticketing support is available here: https://support.4d.com. Client may also seek support from the community.
As soon as the commercial version of the QODLY Platform is available, Client will be notified of the applicable terms of services and able to Upgrade its Plan to a paid Plan to use all the Platform Features and Environments.
|"Beta version” means the early version of the QODLY Platform made available for free to a first batch of Developers to discover and try QODLY before its commercial release. At this stage Developers have only access to the Sandbox Environment and can try all QODLY features for free, « as is » and without any warranty or representation of any kind from 4D as to the level of service or quality of the Platform.|
|"“Client” is the legal entity incorporated and registered with its relevant national Companies House, signing this Agreement and acting for purposes relating to its professional activity.|
|"Developer”” is the natural person who develops (codes) the QODLY App on the Platform for purposes relating to his professional activity. Developer can be the Client or an employee of Client or an external provider to whom Client gives access to the Platform through Client’s Subscription.|
|"Business User” is a natural person who accesses and uses Client’s QODLY App through an authorization granted by Client. Business User however does not have access to the QODLY Platform.|
|"QODLY App" means the program developed by Developer through the use of the Platform or any third-party software tools integrated in and managed by the Platform.|
|"Platform” or “QODLY Platform” means 4D's SaaS program containing tools, dashboards and hosting infrastructure to create, test and run a QODLY App, including related Documentation, any replacement or change and/or any Update provided under the Agreement.|
|"Service(s)” means the provision of the Platform, the provision of Support and Maintenance Services and the provision of associated services such as hosting and backup.|
“Business Users’ Data” means any data uploaded or transmitted by the Client and Business Users to, or generated by, the QODLY App.
“Confidential Information” means any non-public information that one Party (the “Disclosing Party”) discloses to the other Party (the “Receiving Party”) before or during the term of this Agreement, including without limitation all information relating to the Disclosing Party's business and technologies. Confidential Information includes (i) the Platform, (ii) any information regarding the content, purpose, design or function of the Platform or (iii) any know-how, data or other information, including, that which relates to research, product plans, products, services, customers, markets, developments, inventions, processes, algorithms, source-code, marketing or finances. Confidential Information excludes any information (a) that is generally known and available in the public domain at the time of disclosure without fault of Client, or (b) that was known to Client prior to its discussions with 4D, as shown by Client’s files and records immediately prior to the time of disclosure, or (c) that is hereafter rightfully furnished to Client by a third party without restrictions on disclosure and without breach of confidentiality restriction. The same provisions apply to information disclosed by Client to 4D.
“Documentation” shall mean all materials that describe the development, installation, use, functionality, operation, support, and maintenance associated with the Platform, including without limitation manuals, specifications, training materials and technical documentation, made available here: https://developer.qodly.com/docs.
“Effective date” shall mean the date of acceptance of the Subscription Form.
“Exhibit” shall mean any exhibit, attachment and/or schedule to this Agreement.
"Features” means the characteristics of the Plan, such as: number of authorized Business Users, database size, number of Environments available, backup frequency, and any other specifics which are detailed in the applicable QODLY Documentation and offer at the time of the subscription. Some Features are fixed for a Plan (“Fixed Features”), other can vary upon Client’s request (“Variable Features”)
“Fees” means the fees set out in the Subscription Form for access and use of the Platform.
“Laws” shall mean all applicable foreign, federal, state and local laws, statutes, rules, and regulations, and all judicial, governmental, or administrative orders, judgments, decrees and rulings or other enforceable requirements of courts or other governmental bodies of competent jurisdiction.
“Subscription Form” means (a) any mutually agreed order form or similar transaction document (online or offline) established at the Client’s request for a License, including the chosen Plan and Features, or (b) other order placed by Client with 4D for a License (online or on paper) and any subsequent renewals.
“Plan” shall mean any 4D offer to access and use the Platform, to which Client can subscribe through a Subscription Form.
“Support and Maintenance Services” means the service to support the Client’s use of the Platform and to maintain the Platform as described in Exhibit A.
“Term” shall mean the term of this Agreement, set out in the Subscription Form.
“Update” shall mean any corrections, enhancements, bug fixes or other modifications for the Platform as they are made generally available by 4D to its Clients.
“Upgrade” shall mean any change of Variable Features or change of Plan requested by Client or offered by 4D.
2. Plans, Environments, Features and Services
When subscribing to the Platform, Client is required to choose a Plan:
- 2.1.1.Sandbox Plan is free and allows Client to test and try the Platform, withing only one (1) Environment (the “Sandbox Environment”, which goes with certain limitations. For example, Client shall not remove the 4D copyright notice “QODLY” from the App. The Sandbox Plan is the only Plan available in the Beta Version..
- 2.1.2. Paid Plans give access to three (3) “Environments” (Development, Staging and Production).
- (Paid Plans). Plans have several Features. Certain Features are fixed for all Clients and others may vary upon Client’s request. For example, one Plan is always for one QODLY App only (“Fixed Feature”). However, Client may choose the number of Business Users and the size of the database within a certain range or decide to increase the backup frequency (“Variable Features”). Variable Features impact the fees paid by the Client. 2.3. Variable Features within a Plan may be increased at any time by Client, against payment of the corresponding Fees if applicable.
- 2.3. Variable Features within a Plan may be increased at any time by Client, against payment of the corresponding Fees if applicable.
- 2.4. Plans and Features will be described in the Subscription Form(s). When a Plan is renewed or Upgraded, the list of available Features and Services may be updated by 4D. 4D shall notify Client of any update.
3.1 License Grant.
- 3.1. Subject to the Client’s compliance with this Agreement, 4D grants the Client for the Term a non-exclusive, non-transferable, worldwide right to (a) use the Platform (with the scope set out in the Plan) to create the Client QODLY App; (b) distribute and license the QODLY Apps to Business Users as part of the Client’s product offerings or activities; and (c) use and reproduce the Documentation for the Platform as necessary or useful for the foregoing permitted purposes.
- 3.2. License Scope: one (1) License is granted for: (a) one (1) QODLY App, (b) the Features indicated in the Subscription Form 4D reserves the right (i) to track Client’s usage of the Platform, and (ii) in case of inconsistencies between the license scope and Client’s usage, to take enforceable measures to impose the Client's compliance with the terms of this Agreement.
- 3.3. License Conditions. The grant of rights described above is subject to ongoing due payment of corresponding Fees as set out herein. In the event of delay or non-payment of any such Fees, upon notice to the Client, the Plan may be suspended, and no new QODLY Apps may be distributed by the Client until the Client pays the corresponding fees and statutory interest thereon.
4. Usage tracking
4.1. 4D may collect data relating to the Developer’s activities, for the purposes of improving the Platform and the Services (tracking in QODLY Studio only), and to generate anonymous statistics.
5. Prohibited Uses.
Every use of the Platform that is not expressly authorized in this Agreement is prohibited. Except as expressly authorized herein Client shall not, and shall use reasonable efforts to ensure that Developers, Business Users and other parties under Client’s control do not:
- i. use the Platform for any use other than for the purposes set forth herein;
- ii. transfer the QODLY App to another environment than the Platform
- iii. Reproduce or distribute, in whole or in part, the Platform;
- iv. modify, translate, reverse engineer, decompile, disassemble the Platform, or otherwise attempt (i) to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any Platform protection mechanisms in the Platform or components thereof, including any such mechanism used to restrict or control the functionality of the Platform, or (ii) to derive the source code or the underlying ideas, algorithms, structure or organization from the Platform or any components thereof;
- v. alter, adapt, modify or translate the Platform in any way for any purpose, including error correction;
- vi. distribute, rent, loan, lease, transfer, use in a service bureau or grant any rights in the Platform or modifications thereof in any form to any person except to the extent expressly permitted under this Agreement or with the prior written consent of 4D; nor
- vii. file any patent or other applications for intellectual property protection with respect to the Platform, or any information contained in either of the foregoing
- viii. use the Platform or create a QODLY App in violation of any applicable Laws.
6. Developer and Business Users
- 6.1. Client is solely responsible for Developers and Business Users behaviour and shall incorporate the above prohibitions in the QODLY App end-user license agreement, when applicable. Any misappropriate behaviour from a Developer or a Business User that constitutes a breach of these provisions, including breach of confidentiality, shall constitute a breach of the Agreement by the Client.
- 6.2. If Client believes unauthorized activity has taken place on its Platform account, Client must immediately notify 4D of any such unauthorized activity.
7. QODLY App Hosting – Backup – Business Users’ Data
- 7.1. The Service includes hosting and backup of the QODLY App. 4D servers are hosted on Amazon Web Services (AWS) data centres in the European Union. In the future, 4D may use data centres in other regions. 4D warrants that Client will always be able to choose to host Client’s Data in the European Union. The level of Support and Maintenance services for hosting and backup is the level of service by AWS to 4D, as set out in Exhibit A.
- 7.2. The Client alone is responsible of the accuracy, quality, integrity, reliability, suitability and intellectual property rights of and in all Business Users’ Data. Client represents that Business Users’ Data, the processing of the Business Users’ Data does not violate, infringe or misappropriate any third party’s rights.
- 7.3. 4D never access the Business Users’ Data without Client’s prior consent (for example for support purposes).
8. Term and Termination
- 8.1 Term. The Agreement shall commence on the Effective Date, and shall continue in force for the Term, unless otherwise terminated as provided herein. At the end of any initial period indicated in the Subscription Form, the Agreement will be automatically renewed for successive periods indicated in the Subscription Form. After the initial term, either Party may terminate this Agreement, for any reason at any time, giving the other party a prior written notice of the duration set out in the Subscription Form prior to the termination taking effect.
- 8.2 Termination for Breach with notice. Either Party may terminate this Agreement by written notice to the other party for breach of any material provision of this Agreement, provided that such breach, if reasonably susceptible to cure, is not cured within thirty (30) calendar days following receipt of written notice of such breach stating the nonbreaching party’s intent to terminate.
- 8.3. Immediate termination by 4D. 4D may terminate the Agreement immediately without notice if (i) Client’s behaviour results in high risk for 4D’s other clients, or (ii) such termination is requested by a legal or regulatory authority, or (iii) in case of non-payment by Client of the Fees.
- 8.4. Effect of termination. Upon expiration or any termination of this Agreement, (i) any and all fees owed by Client to 4D shall become immediately due and payable, (ii) Client shall cease any and all use and/or distribution of the Platform and QODLY App, and (iii) each Party shall return to the other any and all Confidential Information in tangible form received from the Disclosing Party hereunder. In case of early termination of the Agreement, Client agrees that the fees paid for the ongoing Subscription Term are not refundable.
- 8.5. Survival. The following provisions shall survive expiration or termination of this Agreement: Sections 8.4 Effect of termination, 10 Intellectual Property Rights, 12 Indemnification, 13 Confidential information, 19 Liability, 20 Miscellaneous.
9. Open Source
- 9.1. Warranty. 4D represents and warrants that the Platform does not incorporate, link, distribute or use any third party Platform or code that would: (a) create or purport to create obligations with respect to the QODLY App, if any, including the distribution or disclosure of any source code, or (b) grants or purports to grant to any third party any rights to or immunities under any Client (or any of its affiliate’s) intellectual property rights or proprietary rights
- 9.2. Non-incorporation by Client. Client shall not incorporate, link, distribute or use the QODLY App with any code or software licensed under any third party or open-source license in any manner that could cause or could be interpreted or asserted to cause the QODLY App to become subject to the terms of the open-source license.
10. Intellectual Property Rights
- 10.1 Feedback. If Client provides 4D with any suggestions, ideas, feedback, improvements, reports, error identifications or other information related to the Platform or the Service, or Client’s use and evaluation thereof (“Feedback”), Client hereby assigns to 4D all right, title and interest in and to all Feedback, including all patent rights, copyrights, trade secrets, and other intellectual property or proprietary rights therein, and agrees to use commercially reasonable efforts to assist 4D in perfecting such rights. Client hereby irrevocably assigns to 4D all such rights, title and interest and agrees to execute all documents necessary to implement and confirm the letter and intent of this section.
- 10.2. Retention of Rights.The Platform is owned by 4D and is protected by intellectual property Laws, including patent and copyright Laws, and international treaty provisions. This license is not a sale. 4D reserves all rights not expressly granted in this Agreement. Except for the rights and licenses expressly granted in this Agreement, 4D retains all of its right, title, and interest, including copyright, patent, trade secret, and all other intellectual property rights, in and to the Platform, and any changes, modifications, corrections, improvements or new Features of any of the Platform.
- 10.3. Templates. The Platform may include templates of applications fully created and developed by 4D. Client may use it as its own - without modifying it – including for selling to its own customers or any other use. Client may also develop a new app based on a Template. In both cases, the App used by Client ultimately shall be considered a QODLY App as per this Agreement.
- 10.4. Samples. The Platform also provides some app samples (the “Samples") which are examples or ready-made application that you can use “as is” or customize. The Sample contains Templates, code, sample data, and is considered a Platform Content made available to you by 4D.
- 10.5. Content. The Platform may include literary or photographic content, for example, we publish Templates which you can use, and which contains texts and images (the “Platform Content”). 4D is the rightful owner or licensee of all rights to the Platform Content. All Platform Content made available can be used for commercial purposes in the QODLY App. However, the Platform Content cannot be sold as content (for example if you are using QODLY to create a photo or video platform, you may not sell the photos available in the QODLY Studio Templates to sell them on your own platform). If you have any doubt about how you may or may not use a Platform Content, please contact us. You remain fully liable to the third-party owners of the Platform Content (4D's licensors) for any misuse of the Platform Content in the QODLY App.
- 10.6. Copyright notice. Client shall not intentionally remove, alter, or obscure any proprietary copyright, trademark, patent or other proprietary notices contained on or within the Platform and shall reproduce such notices on any back-up copy of the Platform. In the Sandbox Environment, Client shall not remove the 4D copyright notice form the QODLY App.
- 11.1 Processor-controller relationship. Regarding Business Users’ personal data, when providing the Service, 4D acts as data processor and Client as data controller within the meaning of the GDPR. Therefore, the Parties shall enter into the clauses attached in Exhibit B.
- 11.2 In the context of their relationship, each Party processes the other Party’s personal data as data controller and comply with the Laws when doing so.
- 12.1 4D agrees to defend and or settle claims, suits, actions or proceedings brought by a third party against Client and its directors, employees, and agents to the extent alleging that the Platform infringes such third party’s intellectual property rights or 4D has violated any applicable Laws, rules or regulations (“Claim(s)”), and shall pay liabilities awarded or settlement amounts entered into to the extent based upon such a Claim, provided that (i) Client shall have promptly provided 4D written notice thereof and reasonable cooperation, information, and assistance in connection therewith, and (ii) 4D shall have sole control and authority with respect to the defence, settlement, or compromise thereof.
- 12.2 Should any Platform become or, in 4D’s opinion, be likely to become the subject of an injunction preventing its use as contemplated herein, 4D will either, (1) procure for the Client the right to continue using such Platform, (2) replace or modify such Platform so that it becomes non-infringing, or, if (1) and (2) are not reasonably available to 4D, then (3) terminate Client’s license to the allegedly infringing Platform. Client may participate with counsel of its own choosing at its own expense and further provided that any portion of any settlement or compromise which constitutes an admission from Client shall be subject to the prior written approval of Client.
- 12.3 4D obligations detailed above shall not apply to an infringement claim resulting directly from modifications or combination of the Platform by the Client or third parties acting on its behalf, that were not expressly authorized.
- 12.4 THE FOREGOING TERMS STATE 4D SOLE AND EXCLUSIVE LIABILITY AND THE CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.
13. Confidential Information
Each Party agrees not to disclose to third parties any Confidential Information of the other Party, other than professional advisers and consultants on a need-to-know basis nor use it for any other purpose than performance of the Agreement. Each Receiving Party agrees to ensure that all employees or advisers who will have access to, use of, or knowledge of the any Confidential Information are under statutory confidentiality obligations or have executed (in advance of and as a condition to such access, use or knowledge) a confidentiality agreement with the Receiving Party that is at least as protective of such information as the provisions of this Section. Client agrees to use at least the same degree of care that it uses to protect its own confidential information of a similar nature, but no less than reasonable care.
- 14.1 In consideration of the rights and licenses set forth herein, Client shall promptly pay to 4D the fees set forth in the Subscription Form.
- 14.2 Payments shall be made within the period and in the manner established in the Subscription Form.
- 14.3 14.3 Taxes. All payments required by this Agreement are exclusive of all federal, state, local and foreign taxes, levies and assessments. Client agrees to bear and be responsible for the payment of all such taxes, levies and assessments imposed upon Client or 4D in connection with this Agreement, excluding any income tax imposed on 4D and shall promptly after payment provide the corresponding tax certificate (when available) to 4D.
15. Support and Maintenance Services
4D shall provide Support and Maintenance Services for the Platform in accordance with the terms set forth in Exhibit A. Upon the Client’s request for any non-corrective maintenance support or development services not included in Exhibit A, the Parties shall enter into a specific statement of work.
4D may use the name and logo of the Client in public communications and on its website and promotional materials for the purpose of advertising the use of the Platform.
CLIENT permits 4D to perform either itself or by any representative any audit or control in order to verify that CLIENT complies with all provisions of this Agreement, it being agreed that CLIENT, shall provide any information requested by 4D regarding the Agreement execution, without any delay and by writing. If the audit reveals a non-compliance with the terms and conditions of the Agreement and/or a discrepancy with the information given by CLIENT, CLIENT shall pay all 4D’s reasonable costs relating to the audit and this, without damage to other rights and 4D’s recourse. This provision shall remain in force two (2) years after the termination of the Agreement for any reason whatsoever.
- 18.1 Authority. Each Party represents and warrants to the other that the execution, delivery and performance of this Agreement does not require the authorization or approval of any third party and does not violate any contract, policy, agreement or other obligation of that Party.
- 18.2 Compliance. Client represents and warrants to 4D that all access and use by or on behalf of Client of the Platform, including the QODLY App, shall comply with all applicable Laws.
- 18.3 4D warranties. 4D represents and warrants to Client that: (i) it has all of the rights or licenses, from each applicable licensor, that are sufficient to provide the licenses, rights or other covenants as stated under this Agreement to the Client, (ii) the Platform will operate and perform in accordance with the Documentation and this Agreement.
- 18.4Warranty conditions. If the Service fails as a result from an accident, an abuse, a modification of the Platform, a misapplication or an act of a third party (including another 4D’s client), 4D shall have no responsibility to correct the Platform or to refund the license fee. Moreover, the warranty as stated in this provision is personal to CLIENT and no third party that uses the results obtained by CLIENT with the Platform may benefit from such warranty. Consequently, 4D shall not be responsible to any third party, for the use of any QODLY App. CLIENT shall indemnify 4D from any claim by a third party related to such QODLY App.
- 18.5Disclaimer of Other Warranties. Except as expressly set forth herein, the Platform and Service are provided “as is.” 4D makes no warranty regarding the Platform nor the Service (or the Documentation), or the use or operation thereof, and specifically disclaims the implied warranties of merchantability, fitness for a particular purpose and non-infringement. 4D does not warrant that the Service is free from bugs and/or errors. In addition, 4D does not warrant that the functions included in the Platform will meet CLIENT’s requirements and needs, nor that the QODLY App developed by Client will function correctly or meet Client’s or Business Users’ objectives and needs. The entire risk as to choose and use of the Platform, as well as the results obtained with the Platform including the development of the QODLY App, remains with CLIENT.
- 19.1 Neither 4D nor anyone else who has been involved in the design, the production, or the distribution of the Platform will be liable for any incidental, consequential, indirect or special damages caused to CLIENT, any user or third party, even in case of negligence, including but not limited, to the interruption of the good order work of the Platform, the loss of profits, loss of data, loss of brand image, increase of overheads or any other financial loss arising from the use of the Platform or inability to use it even if 4D has been notified of the possibility of such damages.
- 19.2 Client acknowledges and agrees that 4D SAS may only be liable for direct damages.
- 19.3 Except for breach of confidentiality and/or intellectual property rights provisions, in any case 4D's liability shall not exceed the fees paid by CLIENT for the Service during the twelve (12) months preceding the even giving rise to 4D’s liability.
- 20.1 Governing Law. This Agreement shall be governed by the laws of France, without reference to conflict of laws principles.
- 20.2 Jurisdiction. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction and venue of the Courts of Versailles, and the Parties consent to the personal and exclusive jurisdiction of these courts.
- 20.3 Assignment. Neither Party may assign this Agreement without the other party’s prior written consent, provided, however, that either party may assign this Agreement without the other Party’s prior written consent to any entity that acquires all or substantially all of the business or assets of 4D, whether by merger, reorganization, acquisition, sale or otherwise. Any assignment made in conflict with this provision shall be void and this Agreement shall benefit and bind the permitted successors and assigns of the parties.
- 20.4 Notices. All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered in person, mailed by first class mail, postage prepaid (registered or certified), or by overnight courier, or sent by email (provided confirmation of receipt) with confirming copy sent by mail or courier as set forth above, to the party to receive the notice at the address set forth at the beginning of this Agreement or such other address as either party may specify in writing in accordance with this Section. All such notices shall be effective upon receipt.
- 20.5 Force Majeure. Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the reasonable control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, pandemics and relating Laws, strikes, lockouts, riots, acts of war or terrorism, failures of the Internet, failure of telecommunications systems, earthquakes, fire, and explosions.
- 20.6 Waiver. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action. Except as expressly stated in this Agreement, no exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
- 20.7 Severability. If any provision of this Agreement, or portion thereof, is found to be invalid, unlawful or unenforceable to any extent, the parties shall negotiate in good faith amendments to this Agreement to reflect the original intent of the parties as closely as possible. Such invalid provision or portion thereof will be severed from the remaining provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
- 20.8 Entire Agreement. This Agreement (including the Exhibits and any addenda hereto signed by both parties) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. This Agreement may not be amended, except by a writing signed by both parties.
- 20.9 Modifications. This Agreement may be unilaterally modified by 4D from time to time. When such modification occurs, 4D will inform Client.
CLIENT ACKNOWLEDGES TO HAVE READ, UNDERSTOOD AND AGREED TO BE BOUND BY THE TERMS AND CONDITIONS OF THE AGREEMENT PRINTED ABOVE.
Should CLIENT have any questions concerning this Agreement or wish to request any information from 4D, please contact 4D: (+33) (0)1 30 53 92 00 (e-mail: firstname.lastname@example.org) or the local 4D subsidiary serving your country.
* U.S. GOVERNMENT RESTRICTED RIGHTS: All 4D products and documentation are commercial in nature. The Platform and Documentation are "Commercial Items", as that term is defined in 48 C.F.R. §2.101, consisting of "Commercial Computer Platform" and "Commercial Computer Platform Documentation", as such terms are defined in 48 C.F.R. §252.227-7014(a)(5) and 48 C.F.R. §252.227-7014(a)(1), and used in 48 C.F.R. §12.212 and 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. §12.212, 48 C.F.R. §252.227-7015, 48 C.F.R. §227.7202 through 227.7202-4, 48 C.F.R. §52.227-14, and other relevant sections of the Code of Federal Regulations, as applicable, 4D's computer Platform and documentation are licensed to United States Government end users with only those rights as granted to all other end users, according to the terms and conditions contained in this License agreement.
Manufacturer is 4D SAS located at 66 route de Sartrouville - 78230 Le Pecq, France. (c) 4D SAS. 2023 - All rights reserved for all media and all countries.
All 4D product names are registered trademarks of 4D SAS. All other trade names and trademarks are trademarks or registered trademarks of their respective holders.v
Exhibit A - QODLY Support and Maintenance Services
WARNING: The level of Support and Maintenance services of the QODLY Platform provided by 4D will be detailed and notified to you when the commercial version will be released.
Exhibit B - QODLY Data Protection Annex
The purpose of these clauses is to define the conditions in which 4D, the “Data processor”, undertakes to carry out, on Client (the “Data controller”)'s behalf, the personal data processing operations defined below.
As part of their contractual relations, the parties shall undertake to comply with the applicable regulations on personal data processing and, in particular, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 which is applicable from 25 May 2018 (hereinafter"the GDPR").
II.Description of the Processing Being Subcontracted Out
The Data processor is authorised to process, on behalf of the Data controller, the necessary personal data for providing the following service(s) :
|Data Subjects||Categories of Personal Data|
|Client’s employees||Identification data, contact details, authentication data, logs, usage of the QODLY Platform|
|End-users of the QODLY App||Identification data, contact details, authentication data, logs, usage of the QODLY App, other data stored in the QODLY App.|
The nature of operations carried out on the data is, as the case may be: collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction.
Access by the Data processor to personal data will be solely and exclusively for the following purposes: to provide the services indicated in a written agreement, statement of work, order form or other document, agreed between the parties.
III.Data Processor's Obligations
The Data processor shall undertake to:
- 1 process the data solely for the purpose(s) of performing its obligations under the agreement signed between the parties.
- 2 process the data in accordance with the documented instructions from the Data controller appended hereto. Where the Data processor considers that an instruction infringes the GDPR or any other applicable legal provision bearing on data protection, it shall immediately inform the Data controller thereof. Moreover, where the Data processor is obliged to transfer personal data to a third country or an international organisation, under Union law or Member State law to which the Data processor is subject, the Data processor shall inform the Data controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
- 3 guarantee the confidentiality of personal data processed hereunder.
- 4 ensure that the persons authorised 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.
- 5 take into consideration, in terms of its tools, products, applications or services, the principles of data protection by design and by default.
- 6. Sub-contracting The Data processor may engage another processor (hereinafter "the sub-processor") to conduct specific processing activities. In this case, the Data processor shall inform the Data controller, in writing beforehand, of any intended changes concerning the addition or replacement of other processors. This information must clearly indicate which processing activities are being subcontracted out, the name and contact details of the sub-processor and the dates of the subcontract. The Data controller has a minimum timeframe of 15 days from the date on which it receives said information to object thereto.
The sub-processor is obliged to comply with the obligations hereunder on behalf of and on instructions from the Data controller. It is the initial processor'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 GDPR. Where the sub-processor fails to fulfil its data protection obligations, the initial processor remains fully liable with regard to the Data controller for the sub- processor's performance of its obligations.
- 7. Exercise of Data Subjects' Rights
The Data processor shall assist the Data controller, insofar as this is possible, for the fulfilment of its obligation to 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 not to be subject to an automated individual decision (including profiling). Where the data subjects submit requests to the Data processor to exercise their rights, the Data processor must forward these requests as soon as they are received by email the Data controller.
8. Notification of Personal Data Breaches
The Data processor shall notify the Data controller of any personal data breach within a reasonable timeframe after having become aware of it. Said notification shall be sent along with any necessary documentation to enable the Data controller, where necessary, to notify this breach to the competent supervisory authority.
The notification shall at least:
- describe the nature of the personal data breach including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;
- communicate the name and contact details of the data protection officer or other contact point where more information can be obtained;
- describe the likely consequences of the personal data breach;
- describe the measures taken or proposed to be taken by the Data controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.
Where, and in so far as, it is not possible to provide the information at the same time, the information may be provided in phases without undue further delay.
- 9. Assistance Regarding Compliance with Its Obligations The Data processor assists the Data controller in carrying out data protection impact assessments.
The Data processor assists the Data controller with regard to prior consultation of the supervisory authority.
- 10. Security measures The Data processor undertakes to implement the following security measures:
- the pseudonymisation and encryption of personal data
- the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
- the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;
- a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing
11. Fate of data At the end of the agreement, the Data processor undertakes to, at the Data controller’s choice:
- destroy all personal data, or
- return all personal data to the Data controller, or
- return the personal data to the Data processor designated by the Data controller.
All existing copies in the Data processor's information systems must be destroyed.
- 12. Data Protection Office 4D DPO contact : email@example.com
- 13. Documentation The Data Processor shall keep records in a reasonable manner evidencing that it complies with its obligations pursuant to this DPA and will allow Data Controller to audit such evidence to verify its compliance, with a sixty (60) days prior written notice.
Such audit may be conducted by either Data Controller’s own staff or by a third-party auditor under contract with Data Controller, provided such third-party auditor is subject to a non-disclosure agreement. All audits must be conducted remotely and shall be limited to five (5) business days.
The scope of any audits shall be mutually agreed in advance between the Parties acting reasonably and in good faith. Such right shall not be exercised more than once a year.
IV. Controller's obligations
The Data controller undertakes to:
- 1 provide the Data processor with the necessary personal data;
- 2 document, in writing, any instruction provided to the Data processor;
- 3 ensure, before and throughout the processing, compliance with the obligations set out in the GDPR;
- 3 inform the data subjects of the processing operations in compliance with the GDPR.