GENERAL TERMS AND CONDITIONS

ITOP APPLICATION SERVICES

COMBODO is the publisher of an IT management software application for corporate IT departments, called "iTop" (“the Application”), mostly released under the Open Source AGPL V3 license.

The Application is hosted by COMBODO, and is accessible via a web interface, as a full-web service.

The Service may be subscribed, either in a free version (“iTop Free”), with limited features and support, or in a premium version (“iTop Team”) (for a charge), with extended features and support, depending on the Options added by the Client.

Packaged offers are available on iTop’s Website (www.itop-saas.com). The Client may also contact COMBODO to obtain a tailored and specific version of the Service, to better fit its needs.

The purpose of these General Terms and Conditions is to define the conditions under which COMBODO will provide iTop Application Services to the Client.

1. DEFINITIONS

Each term mentioned hereinafter shall have the meaning set forth below :

Application: the iTop computer program, developed by COMBODO in executable object code form, in its standard version available on the Website; including (if any), all Extensions that may be subscribed by the Client;
Business Hours: 9:00 AM through 6:00 PM Paris time (France), Monday through Friday, excluding legal observed holidays.
Client: the legal entity having subscribed to a Subscription (whether free of charge or for a fee) on the Website;
CMDB: Configuration Management Database of the Client’s information system; composed of different Configuration Items;
COMBODO: COMBODO SARL, whose head office is located in ECHIROLLES (38130)5, rue de l'Octant, registered with the Grenoble trade and companies register under number 522 588 979., and acting as Application Services Provider
Configuration Items: hardware or software elements, as well as telecommunication networks, composing the Client’s CMDB;
Configuration: hardware and operating system software, as well as Internet and telecom infrastructure prerequisites, necessary to run the Application, and specified on the Website.
Corrective Maintenance: correction of Errors affecting the Application;
Documentation: All user and technical documentation for the Application, made available to the Client on the Website, or on any other website or web server operated by COMBODO. Documentation includes: a complete set of COMBODO’s user operating manuals for the Application,.
Error: a dysfunction or bug in the Application which results from a non-compliance with its specifications as described in the Documentation, and non resulting from a misuse or its use with any other software program.
Evolutionary Maintenance: delivery to the Client of Updates and New Versions;
Instance: Operational installation of the Application with a single set of data ().
License: the Affero General Public License, in its version 3.0;
New Version: Application including new features or improvement of current features of the Application;
Offer: the offer for the provision of Services, available on the Website, and specifying the level of features and Support Services available to the Client.
Options: paying options which the Client may add to its Subscription, and which allow him to get additional rights, such as: additional Users (“seats”), Support (“Success Pack”), larger CDMB, or more data storage.
Order: the Client’s subscription (whether free of charge or not) to an Offer,
Owner: Natural person entitled to approve these Terms and Conditions, , and who has ordered a Subscription on behalf of the Client; or any other User(s) to which the initial Owner has assigned his rights;
Request: a request for Support Services made by a User, as provided in the “Support” Section;
Service(s) (or “Application Services”): application services resulting from the implementation of the Application, accessible via the Internet, and whose characteristics are described in the Documentation and on the Website.
Subscription: the commercial agreement formed by (i) the Order and (ii) these General Terms and Conditions. In case of discrepancy, the provisions of the Order shall prevail over the General Terms and Conditions.
Support Services: assistance services to the Client, including Corrective Maintenance, Evolutionary Maintenance and User Assistance;
Update: version of the Application including Error corrections and improvement of current features decided by COMBODO.
User: natural person acting under the authority of the Client, or under a service agreement with the Client, and duly authorized to use the Services; and owner of the User Account;
User Assistance: on-going assistance services of Users, in their use of the Services, provided by COMBODO as described in these General Terms and Conditions and in the Order;
Website: website operated by COMBODO, on which the Client may subscribe to an Offer for the provision of Services; and accessible at www.itop-saas.com, or any other url operated by COMBODO;

2. PURPOSE - ACCEPTANCE

The purpose of these General Terms and Conditions is to define the conditions under which COMBODO provides the Services to the Client.

Unless otherwise agreed to in writing, any subscription by the Client to an Offer implies and results in the full acceptance of the hereby General Terms and Conditions to the exclusion of all other document issued by the Client.

These General Terms and Conditions shall prevail over any other document or particular condition specified or issued by the Client, which would not be enforceable against COMBODO unless formally accepted by the latter.

3. AMENDMENT

These General Terms and Conditions may be amended at any time by COMBODO, with a 30 days written notice sent to the Client by email, and specifying the main changes to the document. The Client may, during this period, object to this update of the GTCs.. In such a case, the previous GTCs shall continue to apply, up to the term of the Subscription, and updated GTCs shall only apply upon the annual renewal of the Subscription.

Unless the Client has objected in writing to this update of the GTCs within the above30 days period, he will be deemed to accept such amended version of the General Terms and Conditions, which will apply to any further Orders and to all existing Subscriptions.

4. REGISTRATION – CLIENT ACCOUNT

In order to use the Services, the Client must previously be registered on the Website, and provide the following data: name and registered office of the company, first name and last name, professional e-mail address of the Owner, email and VAT number of the Client.

The Client must then choose one of the Offers available on the Website, and add its Options, or request a personalized Offer, if he so wishes. After choosing an Offer, he will then be invited to pay the corresponding Service Fee (in case of a premium Offer), in order to validate the Subscription.

The Owner hereby represents and warrants that (i) he has all legal authority to subscribe to the Offer and approve these Terms and Conditions; (ii) all information submitted is truthful and accurate and that (ii) he will maintain the accuracy of such information and update it the Client account., as the case may be, and if needed.

COMBODO reserves the right to reject any registration by a Client, in particular:

i) In case of previous payment issues or litigation with the Client,

ii) If providing Services to the Client would lead COMBODO to be in breach of its contractual obligations with any third party, including breaches of its commitments with COMBODO’s own partners or distributors,

Upon the Client’s registration, COMBODO shall generate and send to the Client personal Ids, i.e. a username and a password, necessary to use and access the Services. The Client shall be given access to a personal account (“Client Account”) on which all its data and documents may be stored, and which from which he can enable his Subscription (for instance by adding Users or subscribing to more Options).

The Clients’ Ids are personal and confidential and shall not be shared or disclosed to a third party. The Client may modify them in his Client Account.

COMBODO shall not be liable to Client or to a third party for any direct, indirect or consequential damages arising out a fraudulent access to the Client’s account or a disclosure of the Client’s IDs.

5. USER ACCOUNTS – ADMIN RIGHTS

In order to use the Service, a User Account will be created for each User .

COMBODO will proceed to the setting and configuration of Users Accounts.

If provided for in the Order, or upon specific request, the Client may be granted administration rights, under which he will be entitled to open, close and manage all User Accounts for its own personnel.

Unless otherwise provided for in the Order, the Client will be entitled to a minimum of three (3) User Accounts, which should be reserved to qualified staff, in charge of software and information system management and support (hereafter “Support Agents”).

Client’s Owner(s) shall be the only User(s) in charge of the administration rights granted to the Client as set forth above, and of the management of all Users Accounts. As such, Owners will be entitled to generate Ids and passwords in the Application for each new User Account..

The Client may only open accounts to authorized Users.

Ids are intended to restrict access to the Service to Client's authorized Users, to protect the integrity and availability of the Application, and the integrity, availability and confidentiality of Client’s Data as transmitted by Users.,

The Client shall be sole liable for the confidentiality of the Ids generated for the Users, and for any direct, indirect or consequential damages arising out a fraudulent access to the Client’s account or a disclosure of the User’s Ids. Any use of the Ids shall be deemed to constitute a use of the Service by the Client.

The Client shall inform COMBODO without delay in case of a security breach, in particular in case of willful communication or misappropriation of User IDs or passwords, so that COMBODO can take any necessary and appropriate steps in order to remedy such breach. More generally, the Client shall be liable for the security of the individual access points to the Service.

6. DESCRIPTION OF THE SERVICES

Services shall include access to the Application, and enable Users to manage IT and support services for clients, or for internal purposes.

A full description of the Services, and complete features of the Application, is available on the Website and in the Documentation.

The Client declares having fully read and acknowledged this Documentation, and that the Services’ features comply with its needs. The first use of the Services by the Client implies full acceptance and acknowledgement of the Services’ compliance with the specifications set forth in the Documentation.

The Services are subject to evolutions, updates and upgrades by COMBODO, in order to improve their performance or to add functionalities. Such upgrades or updates shall be available to Client under the conditions set forth in the “Support and Maintenance” Section.

7. SUPPLY OF SERVICES

The Services are accessible through an Internet access, and a browser, without any installation on the Client’s system or the User’s computers. The Application is made available to the Client by opening a remote access connection to COMBODO server and providing the Client with his or her Identifiers in order to enable the processing of the Data transmitted by the Client on COMBODO’s server or those of its subcontractors.

The Client may access the Service at any time, 24 hours a day, 7 days a week, including Sundays and holidays, except during scheduled maintenance periods as set forth in the “Maintenance” Section.

This access is made :

from the User’s individual computers, desktop or laptop
by using the IDs provided to each User.

Using the Services requires access to the Internet. This service is not included in the Service and will be provided by a telecom operator chosen by the Client, under its sole responsibility. The Client will deal personally, and at his own costs, with the implementation, maintenance and interconnection of the various components of the configuration and the means of telecommunications necessary to have access to the Services.

8. SUBSCRIPTIONS - TERM

Unless he has chosen an annual Subscription, the Client shall subscribe to the Services for an initial term of one month from the date of the Order. The Subscription shall then renew automatically for additional one (1) month periods (s) unless written notice is given by email, by the Client or through its Client Account, to terminate its Subscription, at least 24 hours prior to the end of the initial or any subsequent term.

For Clients having subscribed to an annual offer, Services are subscribed for an initial term of one year from the date of the Order. The Subscription shall then renew automatically for additional one (1) year periods (s) unless written notice is given by email, by the Client or through its Client Account, to terminate its Subscription, at least 24 hours prior to the end of the initial or any subsequent term.

In any case, termination will only be effective at the end of the contractual term. Any fees paid for the relevant term (whether monthly or annual) shall be retained by COMBODO, regardless of the date of termination, and no refund shall be made to the Client.

9. RIGHTS GRANTED

COMBODO grants to the Client a non-exclusive and personal right to use the Service, within the limits attached to its Subscription, i.e.:

for the number of Users set in the Offer subscribed, as may be updated by the Client by subscribing Options;
for the limited data storage space specified in the Order (as may be updated by further Options);
for the number of Configuration Items set in the Offer (i.e. 100 Cis by default)

Any addition or extension of one of the above rights (such as additional Users, larger data storage space, more Cis) implies subscription of additional Options on the Website.

All rights granted to the Client on the Application (including the right to use and modify the Application) are ruled by the terms of the GNU AFFERO PUBLIC LICENSE (hereinafter "the License"), in its version 3.0 dated November 19, 2007 (available at https://www.gnu.org/licenses/agpl-3.0.fr.html ), or any later version that may replace the said License.

Such rights are granted for the legal duration of the copyright, and for the whole world, without any other compensation than that provided for in the Order.

In accordance with the terms of the License, the Source Code of the Application will be made available to the Client on a source code repository (such as github) a, .

The Client shall have no rights with respect to the Application or Documentation except as expressly set forth herein. All rights relating to the Application and Documentation that are not expressly granted hereunder to the Client are reserved and retained by COMBODO.

The Client shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the services and/or the documentation and, in the event of any such unauthorized access or use, promptly notify COMBODO.

The rights provided under this clause are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client.

10. SUPPORT SERVICES

In addition to giving access to the Application, the following Support Services shall be supplied by COMBODO, depending on the Subscription ordered:

Corrective Maintenance
Evolutions of the Application
User Assistance

However, Users using the free version of the Service may not benefit from Support Services (including Corrective Maintenance services).

10.1 Corrective Maintenance

COMBODO provides Corrective Maintenance of the Application (including its Extensions), aimed at fixing the Errors that may occur in the Application, without committing to any resolution time.

Maintenance does not cover customizations or derivative versions that may be developed by the Client, including with COMBODO's assistance, or by a COMBODO business partner (integrator, distributor, etc.), which are operated and maintained under the sole responsibility of the Client.

For the purposes of this Section, an Error shall be considered corrected when either (i) a software modification or addition that, when made or added to the Application, corrects an Error, or (ii) a procedure or routine, when observed in the operation of the Application, eliminates or reduces the practical adverse effect of an Error on the Client.

10.1.1 Support process

All requests for Support (including for Corrective Maintenance) must be addressed exclusively by the Client’s “ Owner(s)”and through one of the following channels:

by email ;
on the Combodo customer portal, accessible at the following address: https://support.itop-saas.com
by telephone if the Client has subscribed to the corresponding level of Support in its Order. Any oral request must be confirmed in writing without delay by the Client.

The Client shall provide a sufficient description of the Error to be reproducible internally at COMBODO.

Upon request by COMBODO, the Client may be required to provide a copy of the data necessary to reproduce the Error.

Support hours: COMBODO guarantees to support any incident under Corrective Maintenance during the company's Business Hours, as defined under Section 1.

10.1.2 Error Classification

Errors will be qualified according to their degree of criticality, according to the criteria below:

Level	Criticality	Classification criteria
1	Critical	The Service is not available (down)
2	Majo	The Service still works but in a downgraded mode ; or significant features of the Service are not available.
3	Minor	Errors are affecting the Service ; or non essential features are not available, but the Service remains operational.

10.1.3 Corrective Actions

COMBODO undertakes to make all reasonable efforts to fix all Errors that may be notified by the Client to its Support team.

Level of Support Services provided by COMBODO will depend on the Client’s Subscription.

Processing times

Errors notified by the Client shall be processed within the time periods set forth in the Offer; and in any case no later than 48 hours from the written notification of the Error. In the event of notification outside of the processing hours, the request shall be deemed received at 9:00 a.m. on the next business day.

Critical / Major Errors

In case of Critical or Major Errors, COMBODO shall make its best efforts to restore the Service as soon as possible. To this end, COMBODO may propose any Update or temporary workaround, or give access to a downgraded and temporary version of the Service.

Minor errors may be corrected with a future release of the Application, or by providing an Update, which the Client agrees.

COMBODO undertakes to carry out the Corrective Maintenance in accordance with the current state of the art and with all due care and diligence in accordance with the rules of the art in its field.

When COMBODO considers that it has corrected the Error, it shall notify the Client by email. The Client may, within seven days from this notification, whether close the support ticket, or decide to maintain it if it considers that the correction made is not sufficient. If no response is received within this period, the Error will be considered corrected.

10.1.4 Updates

COMBODO will provide Client with Updates if, as and when COMBODO makes any such Updates generally available.

10.1.5 Conditions

COMBODO’ obligations under Corrective Maintenance are conditioned upon the following:

Client makes reasonable efforts to solve the reported Error after consulting with COMBODO;
Client provides COMBODO with sufficient information and resources to correct the reported Error either at COMBODO’s Client support center or via remote access at Client’s site,;
Client has paid all Services fees when due, and is otherwise in compliance with the terms and conditions of the Subscription .

10.1.6 Exclusions

COMBODO shall have no obligations under Corrective Maintenance in connection with any Errors caused by:

interconnection of the Services with other software products not supplied by COMBODO;
use of the Services on an inappropriate Configuration
third party components, whether proprietary or open source.

In addition, the Support Services may not involve maintenance or assistance in the use of third party software not provided by COMBODO.

Any intervention by COMBODO for a non-supported Error or which does not fall within the scope of Corrective Maintenance or Support shall be invoiced to the Client, on COMBODO’s current hourly rate at the date of the intervention.

10.2 Evolutions

COMBODO may update the Application and deliver New Versions, so that the Service integrates new features and enhancements, without any commitments to frequency or recurrence. Each new Version will be accompanied by additional Documentation.

10.3 User Assistance

COMBODO will provide to Client all necessary assistance with the use of the Application, in the following conditions.

To benefit from User Assistance, the Client will need to subscribe to Success Packs, or to an Offer including Success Packs.

Success Packs may be used up to the number of hours subscribed, and are valid for one (1) year,. They may be renewed on an annual basis. Any hour not used at the end of the annual period will be lost and will not be refunded in case of non-renewal by the Client of the Succes Pack or of its Subscription . However, in case of renewal, all hours not used on the previous Success Pack will be carried over, and may be used up to the renewed term.

The User will send his request as set forth in the “Support process” section.

11. USER TRAINING

All Users may access and use user documentation available online, on the Website, to help them use, set up and improve their knowledge or the Application.

Besides, upon request from the Client, COMBODO may organize training sessions for Users, on the use of the Application. These sessions shall be made on site or remotely by teleconference or by any other means.

Such training will be invoiced in addition to Service fees, and upon prior quotation. Transportation, housing and catering costs shall be, if applicable, invoiced in addition to the training session itself.

12. FINANCIAL TERMS

12.1 Service Fees

In consideration for the Services performed by COMBODO, the Client shall pay Service fees as set forth in the Order.

Service fees may be revised at any time by COMBODO, provided that it notifies the Client of such revision, with at least thirty (30) days written notice. Unless the Client decides to terminate the Subscription within such period, under the conditions set forth in the “Amendment” Section, the revised prices shall apply to the Services upon expiry of this period.

The Client waives any right to reduction of the price under article 1223 of the French Civil Code.

12.2 Payment terms

Unless otherwise specified in the Order, Services are invoiced and payable at the beginning of each Subscription term (whether monthly or annual).

Payment is made :

By direct debit
by credit card or bank transfer

All payments are made through a secure webservice, operated by one of our partners (such as Stripe).

Invoices shall be issued by a third party provider (Chargebee), the Client having access to a specific interface in its Client Account hosting all financial and contractual data.

In case of late payment, total or partial, for any reason whatsoever, a late payment penalty will be applied at the conventional rate of 5% per month as of the due date, without notice in accordance with Article L441-6 of the Commercial Code. In addition, the Client will also be charged a fixed indemnity for collection costs, the amount of which is set at 40€. However, in the event that the collection costs incurred are greater than 40€, COMBODO may request additional compensation, upon justification.

Moreover, if late payment exceeds 15 days, COMBODO may suspend all ongoing Services without further notice. In such a case, the Client may however use the Application in reading mode only, and download its Data. Such suspension shall not be considered as a termination of the Subscription by COMBODO, nor shall it entitle the Client to any compensation. If the Client does not remedy the situation by paying all outstanding fees within 1 month of the first defaulted payment term, then COMBODO will terminate the Subscription, and article 18.2 shall apply regarding the Client’s data.

13. INFRINGEMENT

COMBODO warrants that it is the author and owner of the copyright in the Application and that it holds the necessary rights to grant this Agreement.

COMBODO warrants that the Client's use of the Application under and in compliance with the terms of the Subscription shall not in any way infringe the rights of any third party.

Consequently, COMBODO shall hold the Client harmless against any action, claim or demand by any person alleging, in particular on the basis of infringement, any intellectual property rights that may restrict or prohibit the use of the Application or any of its Extensions.

If any third party claims or asserts in any suit, that Client’s permitted use of the Application or the Services infringes or violates any intellectual property right, COMBODO shall, at its own expense, defend such action and indemnify and hold harmless the Client from and against any award of damages in favor of the third party arising there from or caused thereby, within the limits set forth in the “Liability” Section, provided that :

(i) The Client is notified promptly in writing of any claim

(ii) COMBODO is given full authority to control the defense, the costs and settlement of the claim

(iii) The Client provides all available information and assistance regarding such claim

If any portion of the Services becomes, or in COMBODO’s opinion is likely to become, the subject of a claim of infringement, COMBODO may, at its expense, and its sole option, (i) procure for the Client the right to use the Services, or applicable portion thereof; (ii) modify the same so that it is no longer infringing, but still substantially conforms to the Documentation; or (iii) terminate the Contract entirely, and as COMBODO’s sole liability and Client’s sole remedy for such termination, refund to Client the Service fees actually paid by Client for the last twelve months preceding such termination. Such remedy shall not be exercised by the Client, in addition to the any other claim for damages. In any event, COMBODO’s liability in case of violation of the “Infringement” provisions shall be limited as set forth in Section “Liability”.

The foregoing indemnity obligation shall not extend to any claims of infringement arising out of or related to (i) a modification of the Services by anyone other than COMBODO or its duly authorized agents; (ii) the incorporation into the Services of any information provided by or requested by or on behalf of the Client; (iii) a combination of the Services with any other software or equipment where the infringement or misappropriation would not exist without such combination.

14. NO WARRANTY

Except for the warranties set forth in the “Infringement” and “Data” Sections, and any applicable mandatory legal warranties, COMBODO does not give the Client any other warranty on the Application.

In accordance with Article 15 of the License, the Application is provided "as is", without any warranty on its proper operation, or that its fits the Client’s needs.

The Application is used at the sole risk of the Client, and under its full responsibility, any Errors or dysfunctions being treated under the Corrective Maintenance Services provided in the Subscription and for the duration thereof.

15. AVAILABILITY OF THE SERVICE

COMBODO warrants that the Services will be performed in a professional and workmanlike manner consistent with industry standards reasonably applicable to such services.

COMBODO shall implement the means necessary to obtain 99% availability of the Services.

This availability rate is measured per year, from Monday to Friday 24/24 (excluding public holidays in France)

This rate represents an unavailability of 8 hours for an annual period, ie 40 minutes for a monthly period.

It is expressly agreed that COMBODO shall not be liable for unavailability resulting from:

preventive maintenance and Update of the Services;
network disruptions,
computing disaster at COMBODO’s or its subcontractor’s facilities,
interruption of hosting services provided by COMBODO’s own provider,
operation, installation, or default from a third party component,
any Service interruption ordered by a court or judicial or governmental authority of competent jurisdiction
any case of force majeure, as specified under Section “Force Majeure”.

The Client is informed that the connection to the Services is made via the Internet. He is warned of the technical risks that may affect this network and lead to slowdowns or unavailability making the connection impossible. COMBODO may not be held responsible for the difficulty of accessing the Services due to disturbances of the internet network.

COMBODO shall only be liable in case of unavailability due to its own performance of the Services, namely:

a bug or error affecting the Application, or its performance,
its own hosting services, in case the Services unavailable are hosted on COMBODO’s equipment,

Moreover, COMBODO may suspend access to the Services for operations of major security maintenance in order to ensure the efficient operation of the Services. Such operations shall be planned and COMBODO will inform in advance the Client by email with reasonable notice and indicate the nature and duration of such intervention.. When exceptional technical circumstances jeopardize logical servers or hosting infrastructure, such maintenance operations can be made under the same conditions without notice. In such a case, the Client may not claim any compensation nor hold COMBODO liable for such interruption, on any ground whatsoever.

Any unavailability resulting from operations of upgrading or corrective maintenance of the Services shall not be accounted for in the availability rate set forth above.

In case the unavailability period set forth above were exceeded, COMBODO shall be liable to the Client of a penalty based on the annual fee, as a prorata of the exceeding unavailability on the said period, such penalty being set as followed: P = N x R/365, where

P = penalty
N = number of hours where the Service was unavailable (any period less than 24 hours being counted as a day)
R = annual fee

This penalty will be deducted from the Client’s next invoice.

Such penalty shall be in any case capped to 1/12th of Service annual fee (or one monthly fee) and shall be deemed as a full discharge of COMBODO’s liability. Consequently, the Client waives any rights or remedies relating to the unavailability of the Service.

16. LIABILITY

16.1 Scope of liability

16.1.1 Client’s liability

The Client shall not access, store, distribute or transmit or any material during the course of its use of the Services that:

is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
facilitates illegal activity;
depicts sexually explicit contents;
promotes unlawful violence;
is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
causes damage or injury to any person or property;

Moreover, the Client undertakes not to use the Service for illicit or unlawful purposes, such as spamming, unsolicited email, disclosure or copy of confidential information, or illicit processing of personal data.

COMBODO shall not be liable for the content of information posted or collected through the Services, for their use and storage in the Application. COMBODO shall never be liable for claim or action instituted by any third party, in particular arising from the posting of information, pictures, sound, text, videos collected and hosted within the use of Services ant that may violate laws and regulations and more particularly privacy or intellectual property law. In such case the Client shall indemnify and hold harmless COMBODO from any damages resulting from a third party claim.

In the event that unlawful content or content violating applicable laws likely to incur criminal or civil law and/or that may infringe third parties‘ rights, COMBODO reserves its rights to suspend the supply of the Services immediately and without notice and to terminate the Subscription without prejudice of compensation that COMBODO may claim.

The Client commits that his use of the Service shall not affect or compromise the stability, security and quality of COMBODO Service, networks, bandwidth or infrastructure, or of COMBODO’ other Clients or third parties. If COMBODO observed that the Client’s use of the Service endangers or alters the stability, security of quality of COMBODO Service, networks, bandwidth or infrastructure, or of COMBODO’ other Clients or third parties, COMBODO reserves the right to suspend or interrupt the Client’s access to the Service, even without notice.

16.1.2 COMBODO’s liability

Given the high level of technology implemented in the Application, it is expressly agreed by the parties that COMBODO is subject to a best-endeavors obligation. Consequently COMBODO shall only be liable for a default when clearly evidenced by the Client.

COMBODO shall not be liable for any damages arising from the use of Services. Any use of the results obtained by the use of the Services shall be under the sole liability, management and control of the Client.

COMBODO undertakes to take all technical measures in order to ensure safety of the Data and to protect them against accidental or illicit destruction, accidental loss, alteration, disclosure or unauthorized access, against any other unlawful forms of processing or communication to unauthorized persons.

In particular, COMBODO commits to take all reasonable safety measures to protect its servers against Client’s Data contamination and malicious intrusions of third parties.

16.2 Limitation of liability

To the maximum extent permitted by applicable law, in no event shall COMBODO be liable for any special, incidental, indirect, or consequential damages or punitive damages whatsoever including, but not limited to, damages for loss of profits or revenues, business interruption, failure to realize expected savings, loss, disclosure, unavailability of or damage to data, brand damage arising out of or in any way related to the use of or inability to use the Services or the exploitation of the results of the use of the Services. It is expressly understood by the parties that all actions or claims instituted or filed against Client by a third party constitute indirect damages and, therefore, shall not entitle Client to any compensation.

COMBODO’s liability may not, in any case, be claimed in case of:

Use of the Services in a way not provided for in the user documentation or in case of unauthorized use according to the Contract;
Use of all or part of the Services, whereas COMBODO had recommended, following a technical incident or for whatever reason, to suspend their use;
Any damage resulting from a breach or a negligence from the Client, which he may have avoided by asking advice from COMBODO;
Use of third party software with the Service, not provided or endorsed by COMBODO, and likely to affect the operation of Services or the Client’s Data;

Notwithstanding the foregoing, it is expressly agreed between the parties that, in case COMBODO’s liability would be acknowledged, by court or from a settlement with a third party, it shall be limited to no more than the amount paid by the Client for the Services, during the last twelve (12) months period preceding the Client’s claim.

This Section shall apply to any liability arising from the Subscription, including an alleged infringement of third party rights, as provided in the Infringement Section.

17. DATA

17.1 General Provisions

All Data resulting from the operation of the Service by the Client or provided by Client when operating the Service shall remain the sole property of Client.

COMBODO shall not disclose such Data or communicate the contents thereof to any third party except pursuant to a court or administrative order. Unless prevented from doing so by such a court order, COMBODO shall promptly inform the Client of the existence of the order and of the Data that has been transmitted.

COMBODO undertakes to implement the appropriate technical means to ensure the security of the Data processed under this Agreement.

COMBODO may, in order to fulfil its obligations under the Agreement, in particular when for the purpose of performing its maintenance and support obligations, access the Data, in particular personal Data, of the Client or of its own customers or partners and, if necessary, extract and/or reproduce such Data in a computer environment external to the Client.

The Client acknowledges that access to the Data is inherent to the performance by COMBODO of its contractual obligations.

COMBODO shall inform the Client only in the event of extraction and/or reproduction of Data in an external environment or material, indicating the reasons for such extraction or reproduction, the type of Data concerned, the possible categories of persons concerned as well as the foreseeable duration of use of the Data and their location. COMBODO undertakes to destroy the Data after use and to use the Data solely for the purpose of performing its contractual obligations and shall not use the Data for any other purpose for its own account or for that of third parties.

COMBODO acknowledges the sensitive and highly confidential nature of the Data and, accordingly, undertakes to provide access to the Data only to persons duly authorized to perform the services provided for in the Agreement and subject to a confidentiality agreement; such persons shall be bound by the strictest confidentiality with respect to the Client’s Data.

17.2 Data Safety provisions

Each Instance of the Application is hosted on a dedicated server, in order to ensure an optimal safety of the Client’s Data.

Moreover, COMBODO operates a daily backup of each Instance and of the Data hosted on such Instance. Retention periods may vary, from D-2(for iTop free) to D-7 (for iTop Teams), depending on the Client’s Subscription.

17.3 Personal Data

Applicable rules on protection and processing of personal data are set out in the Data Processing Agreement (Exhibit 1), which forms an integral part of these General Terms and Conditions, and which the Client accepts without reservation.

18. TERMINATION

18.1 Causes of termination

Each Party may terminate the Subscription, under the conditions set forth in the « Term » section of these General Terms and Conditions.

Furthermore, each Party may terminate the Subscription in case the other Party breaches any of the following obligations:

Rights granted;
Service Fees and Payment Conditions
serious and repeated breach by COMBODO of its Support obligations
Liability;
breach by any Party of its obligations regarding the protection and processing of Personal Data having a significant commercial or financial impact for the other Party

In the event of such a breach by, which would remain uncured for a period of thirty (30) calendar days, starting from the date of a registered letter with return receipt notifying the breach to the breaching party, the non-breaching party may terminate the Contract, by registered letter.

In addition, in the event of early termination for default of payment by the Client, COMBODO may claim to the Client the payment of liquidated damages up to 10% of the amount remaining due, without prejudice to any other damages that COMBODO could claim.

18.2 Consequences of termination

In the event of termination of the Client’s Subscription, for any reason whatsoever, COMBODO shall cease any Maintenance or Support Services, or any other Services provided under the Subscription.

Termination of the Subscription shall not affect the rights of use granted to the Client under the “Rights Granted” Section; nor shall it affect any sub-licenses that may have been granted by the Client to its own customers.

Therefore, in the event of termination of the Agreement, the Client shall retain all rights to use and exploit the Application, including its Source Codes, in the last version made available to the Client; but shall no longer benefit from updates or new versions of the Application.

In the event of termination of the Subscription, for any reason whatsoever, the Client may, upon written request, recover all Data hosted by the Application, within a maximum period of thirty (30) days from the date of termination. Data may be transferred directly from the Application in an open and commonly used format (such as .csv or any equivalent format). Furthermore, upon Client’s request, or at the end of the 30 days period above, COMBODO will destroy all the data hosted by the Application.

In order to enable the Client to continue to operate the Data without interruption, either directly or with the assistance of another service provider, COMBODO may provide, upon Client's request, assistance services for reversibility, in order to provide the Client with the Data in the format of its choice, subject to its technical practicability. These services will be performed on specific quotation and will be invoiced separately.

19. SUB CONTRACTING

COMBODO may subcontract totally or partially the supply of Services to any third party of its choice. However, COMBODO shall remain fully liable towards the Client for its obligations under the Subscription.

20. CONFIDENTIALITY

The following shall be considered as Confidential Information under this article: All information and/or data in any form and of any nature whatsoever - including in particular all information of a technical, commercial or financial nature, know-how, software, as well as any knowledge likely to be protected by an industrial property right, communicated by one Party to the other Party during performance of the Subscription.

Each Party undertakes, until the term of the Subscription and for five (5) years after its term to keep strictly confidential the Confidential Information that will have been communicated to it by the other Party, regardless of its nature and medium (tangible or intangible), and to take all necessary measures to ensure that this Confidential Information is only communicated to those persons for whom knowledge of it will be necessary for the proper performance of the Subscription, and to ensure that these persons will preserve the confidentiality of this information and will only use it for the sole purposes of performing the Subscription.

This confidentiality undertaking does not apply to Confidential Information for which the disclosing Party can prove:

That it disclosed the information after obtaining the prior written consent of the other Party, or that the disclosure was made by the other Party; or
That they were in the public domain at the time of their communication by the other Party, or that they fell into the public domain after communication through no fault of its own; or
That they were lawfully received from a third party; or
That their disclosure has been imposed by the application of a mandatory legal or regulatory provision or by the application of a court decision that has become final

Each Party shall ensure that its subcontractors comply with this confidentiality obligation and shall require them to give the same confidentiality undertakings as those contained in this Section.

21. FORCE MAJEURE

The Parties shall not be liable to each other for a delayed or lack of performance of their obligations to the extent that their obligations are in whole or in part impacted by an event of force majeure. For the purposes of this agreement, the following events shall be considered (without any limitation) as events of force majeure:: terrorism, fires, explosions, or floods of computer systems, and in particular affecting the servers hosting the Application, malfunctioning or interruption of the electrical or telecommunications networks, Internet networks, and in particular breakdowns or interruption of services at COMBODO service providers or subcontractors, law or regulations that would render unlawful performance of this Contract, decease of one of COMBODO’s key-person, such as its General Manager (CEO), its technical manager (CTO), that could not be replaced immediately.

If any Party were prevented to fulfill its obligations for more than sixty (60) days for reason of a force majeure event, each party shall be entitled to terminate the Subscription without penalty by registered letter with return of receipt. In case of definite impediment, the Subscription shall be terminated as of right, without notice.

22. COMMERCIAL REFERENCE

Unless otherwise specified in the Order, the Client authorizes COMBODO to use its trade name, combined with the Subscription chosen, as commercial references.

23. NO WAIVER

Any one or more failure by either party to enforce any provision of these General Terms and Conditions or to exercise any right shall in no way constitute a waiver of such right or remedy on any future occasion.

24. ASSIGNMENT

The Client may not assign or transfer, directly or indirectly in any manner, any of the rights or responsibilities set forth herein, without COMBODO’s prior written consent.

COMBODO may, at any time, assign or transfer any of the rights or responsibilities set forth herein, provided that the Client is informed of such assignment.

25. APPLICABLE LAW - DISPUTE RESOLUTION

These General Terms and Conditions will be governed by and interpreted in accordance with the laws of France.

The Parties shall make their best efforts to settle amicably all disputes relating to the validity, construction, performance or termination of the Subscription. The Parties shall meet within one month from the written notification of such dispute by one Party to the other, by registered letter with AR. This settlement meeting shall be held with at least one legal representative (or duly authorized member of staff) of each Party. Should the Parties not reach an amicable agreement within one month from this meeting, each Party shall be free to engage in any legal action.

FOR ALL DISPUTES OR CLAIMS ARISING OUT OF OR RELATING TO THESE GENERAL TERMS AND CONDITIONS AND/OR THE SUBSCRIPTION ORDERED BY THE CLIENT, OR THE VALIDITY, INTERPRETATION, BREACH, PERFORMANCE, OR TERMINATION THEREOF, THE COMMERCIAL COURTS OF GRENOBLE (FRANCE) SHALL HAVE EXCLUSIVE JURISDICTION, NOTWITHSTANDING THE CASE OF PLURALITY OF DEFENDANTS, OR EMERGENCY PROCEDURE.

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