My opquast - Terms and conditions of use

Terms and conditions of use

Service terms of usage

IMPORTANT NOTICE: Translation from the French for information purposes only.

The following text is a translation of the original French language "Conditions d’utilisation du service" and, in the event of any discrepancy or difference of interpretation, the terms of the original French document shall prevail.

This document sets out the terms and conditions relating to use of the OPQUAST Database and related services provided by My-Opquast.

1.Preamble

TEMESIS is a French société à responsabilité limitée (limited liability company) with a capital of 10,000 euro, registered with the Companies and Commercial Registry of Bordeaux under No 433 890 704, and whose registered office is located at 18 rue Lucien Granet - 33150 Cenon - FRANCE. TEMESIS is represented by Mr Elie Sloïm in his capacity as General manager.
TEMESIS specializes in the evaluation and improvement of Internet websites. It provides advice, training and information on all aspects of on-line service and Internet and intranet website quality. Within that context, it carries out audits and provides training and consulting services relating to evaluation and improvement of on-line service quality, calling on its experience and skills developed in the fields of website quality control, accessibility and compliance.
TEMESIS also maintains a website www.temesis.com which is a source of information and exchanges on these subjects.
Within the remit of its specific skills and experience, TEMESIS drives a large project entitled OPQUAST. OPQUAST is the first open and public reference list of Best Practices for the improvement of on-line service quality. This project can be found via the URL www.opquast.com.
TEMESIS provides a range of services to partners who wish to be associated with the project and/or to professionals who wish to take advantage of the features available in a specific professional offer. Thus, both professionals and partners are able to access on-line services which are exclusively reserved for them.
The subscriber to the offer, after having studied the specific characteristics and properties of the Database and related services developed by TEMESIS in connection with the OPQUAST project and after having assessed the possibilities open to it through having access to, or using, it or them wishes to be entitled to use it and/or them for the purposes of its professional activities.
TEMESIS is willing to provide the subscriber to the offer, on the terms and conditions defined in this document, with the right to access, extract from and use the Database, as well as with a licence to use the related Application Software and certain Database related services.
The subscriber to the offer acknowledges having received all the information and advice necessary to evaluate the offer proposed by TEMESIS.
It is expressly agreed that the subscriber to the offer must have the necessary skills and computer resources enabling it to access and use the Database.
The subscriber to the offer is aware of the rights held by TEMESIS over the Database and the Application Software and expressly undertakes to respect such rights.
The subscriber to the offer is advised that it shall be required to collaborate in a close and continuous manner, by providing all relevant information that might enable TEMESIS to duly perform its obligations in full.
Consequently, the subscriber to the offer after having become familiar with the potential, the purpose, the features and the operating instructions of and for the Application Software, the Database and related services, and after having assessed the possibilities open to it through accessing or using it or them for its specific needs, wishes to be authorized, by TEMESIS, who accepts, to use the said Application Software, the said Database and the said services.

2. Definitions

In these Terms and Conditions, each of the following words and expressions shall have the meaning attributed thereto below, namely:

"Aplication Software":: Software programme developed by TEMESIS which makes it possible to access the Database and its related services;
"Configuration":: All equipment and material resources, software and telecommunications that make it possible for the subscriber to the offer to access the Database, but excluding the Application Software;
"Database":: Systematically or methodologically structured repository of works, data, or other independent elements which are individually accessible through any electronic or other means, and called OPQUAST;.
"Documentation":: All forms of documentation relating to various elements of the Application Software and notably preparatory design works within the meaning of Article L. 122-6 of the "Code de la propriété intellectuelle" (French Intellectual Property Code), specifications, preliminary surveys, descriptions, plans, preliminary studies, functional analysis files, organization tables and programming files, including therein any interface specifications, technical documentation, user manuals and operating instructions which list all the features available to the user, as well as, as the case may be, any on-line documentation and, more generally any technical information relating to any elements of the Application Software that are necessary or appropriate for the use of the Application Software;
"Hypertext link":: connexion linking two resources accessible over a communications network. A Hyperlink is made up of the following elements, which may or may not be visible to the end user: an active element or pointer, a destination address and the conditions of display of the resource.
"Internet":: All computer and telecommunications networks interconnected worldwide and which communicate using the TCP/IP protocol and enabling access to content by users through servers
"Newsletter":: A newsletter about OPQUAST which is sent out with a varying periodicity by TEMESIS either in HTML or text format to subscribers who have provided their email addresses and chosen to receive it.

3. General Clause.

These General Terms and Conditions shall constitute, together with any related schedules, as the case may be, the only contractual clauses binding the parties in connection with the purpose of the contract. These Terms and Conditions shall therefore prevail over all and any terms and conditions drawn up by the subscriber to the offer unless TEMESIS expressly and in writing agrees otherwise.

4. Purpose

The purpose of these General Terms and Conditions is to determine the terms and conditions on which a subscriber to the offer shall be authorized by TEMESIS to use the Database, the related Application Software and the related services.

5. Term – Entry into force

These Terms and Conditions shall come into force on the date they are accepted by the subscriber to the offer.
They are valid for a period of one (1) year.
These Terms and Conditions shall be renewed for successive periods of one (1) year, unless either of the parties gives one (1) month’s notice, by way of registered letter with acknowledgement of receipt, to terminate them.

6. Right of access to the Database.

The subscriber to the offer shall be free to access the Database and the related services at its discretion, but shall do so at its own risk, in accordance with the terms and conditions set out under the "Access to the My-Opquast service" clause hereunder.
TEMESIS shall grant the subscriber to the offer an exclusive right to use the Database and to use the service for the number of projects included in the offer subscribed to.
The subscriber to the offer shall be fully and solely liable in relation to the exercise of such right.
Under no circumstances shall the subscriber to the offer, notably even in the case of an "unlimited offer", be allowed to use more than 5% of the disk space allocated to the entire project. Going above this limit shall require a special agreement between the parties.

7. Access to the My-Opquast service

TEMESIS shall provide the subscriber to the offer, on-line, with an identifier and password which shall enable the said subscriber to access its My-Opquast account. Within one (1) calendar day following receipt of payment and acceptance of these Terms and Conditions by the subscriber, TEMESIS shall activate the account corresponding to the chosen offer.
The subscriber to the offer shall only be able to access the offer with effect from receipt of its identifier and password, receipt of the payment corresponding to the offer and acceptance of these Terms and Conditions.
The subscriber to the offer undertakes to respect the strictly personal and confidential nature of the identifier and password allocated to it by TEMESIS. In particular, the said subscriber undertakes not to disclose the identifiers or passwords to outside users or third parties.
All and any use of the identifier associated with the password shall be irrefutably regarded as being a use of the Database by the subscriber to the offer for which it shall be liable.
The subscriber to the offer undertakes to inform TEMESIS immediately and in writing of any loss or theft or disclosure to an unauthorized third party of its password and to ensure the lost or disclosed password is changed.
TEMESIS shall de-activate access via the password to the Database and arrange for a substitution of passwords within approximately forty eight (48) hours from receipt of an email, without prejudice to the "Termination - Rescission" clause hereunder.
Access to the Database shall be stopped at the end of the contractual term specified hereunder.

8. Configuration

It shall be the subscriber to the offer’s responsibility, both financially and technically, to be equipped with the necessary configuration to access the Database as well as with an appropriate means of access.
TEMESIS cannot be held liable for any access difficulties experienced as a result of the subscriber to the offer's configuration.

9. Warning

It is up to the subscriber to :
- Verify that the database and the data contained therein is adequate for his/her needs.
- Ensure that it has the skills and resources necessary to implement and use the Database.
- Make sure that anyone working on its behalf complies with the obligations undertaken in connection with this Contract, notably with regard to confidentiality.
In any event, use of the Database by the subscriber to the offer shall be carried out under the sole control, direction and responsibility of the said subscriber and at its sole risk.

10. Modifications to the service.

The subscriber to the offer expressly accepts that TEMESIS shall be entitled to modify the service with regard to:
- The structure and presentation of the database.
- The addition of new features.
- Replacing current features with new features.
The subscriber to the offer shall be notified of all and any modification to the service by email and shall have eight (8) calendar days from such email to terminate this contract which shall continue in full force and effect until its expiry date in the case where a licence fee has been paid.
In the event of the contract not being terminated by the subscriber to the offer within the time limit specified in the previous paragraph, the said subscriber shall be irrefutably deemed to have accepted the modifications made to the service.

11. Ownership of the Application Software

TEMESIS holds the copyright over the Application Software that is distributed in its name, as well as over the related Documentation, enabling it to grant a right of use to the subscriber to the offer on the terms and conditions hereunder.
The right of use granted by TEMESIS under these Terms and Conditions shall not result in any way in a transfer of intellectual property to the subscriber to the offer.
Consequently, the subscriber to the offer shall refrain from all and any conduct, action or activity which may directly or indirectly undermine the copyright over the Application Software which is protected by the French "Code de la propriété intellectuelle".
The subscriber recognizes have prior knowledge of the content user licence published on opquast.com

12. Title to the Database.

TEMESIS as producer of the Database holds sole title to the Database.
Consequently, the subscriber to the offer undertakes:
- Not to undermine directly or indirectly the title rights held by TEMESIS or its legitimate interests.
- On the said subscriber’s own behalf and for and on behalf of the people working for it, not to remove any security systems integrated, as the case may be, within the Database.
- To permanently maintain the copyright and ownership notices that are present in the Database.
- Not to communicate, disclose or circulate to any third party, under any form whatsoever, either partially or totally, the Database or all or any of the data which it may contain.
- To respect the trademarks, names, logos, acronyms, colours, graphic designs and/or any other distinctive signs owned by TEMESIS, and not to attempt, in any way or for any purpose whatsoever, to create an analogy with TEMESIS in the public's mind.

13. User licence for the Application Software and the Database.

The subscriber to the offer recognizes that TEMESIS is the producer of the Database and therefore has the right to grant a user licence with regard to the Application Software.
All and any use of the software that has not been expressly authorized by TEMESIS under these Terms and Conditions is illegal pursuant to the French "Code de la propriété intellectuelle", Articles L. 122-6 and L. 342-1.
TEMESIS grants to the subscriber to the offer, who so accepts, a non-exclusive, non-transferable right of access for the use of the Database for consultation and evaluation purposes and in order to promote the Database.
The subscriber to the offer undertakes to comply with the user license with regard to the content provided by Opquast.
The subscriber to the offer undertakes to take all necessary steps to inform employees and anybody who might be working for it of the provisions contained in this clause and to ensure that they are complied with.
In such respect, the subscriber to the offer shall be personally responsible for compliance with the provisions of these Terms and Conditions by its employees.
More generally, this user licence is granted solely for the specific needs and purposes of the subscriber to the offer and any transfer of that right of use to an information manager or in connection with any information management service is prohibited.

14. Trademark Licence - Commercial Reference

The subscribers to certain offers can if they so wish publish information in one or more files that can be displayed on the Opquast.com website. In such case, the said subscriber is invited to declare its file public.
Where applicable, TEMESIS shall display the subscriber to the offer’s web URL as well as its logo and introductory wording in the relevant section of the Opquast.com website.
The introductory wording referred to in the previous paragraph shall be drafted by the subscriber to the offer, and for which it shall be solely liable, in conformity with the format defined by TEMESIS, and shall subsequently be validated by TEMESIS.
Consequently, by declaring its file or files public on the My-Opquast service, the subscriber to the offer expressly agrees to grant TEMESIS the right to use, solely for promotional ends, any trademarks, names, acronyms, logos, colours, graphical works and/or any other distinctive signs or protected elements owned by it and which have been submitted to TEMESIS.
On declaring a file public on the My-Opquast service, the subscriber to the offer expressly agrees to the publication of a Hypertext Link to its website on the Opquast.com site.

15. Partnership - Editorial responsibility

The communiques must only deal with issues hat have a direct relevance to the Opquast project or to the activity of the client.
The subscriber to the offer expressly accepts that any claim by a third party regarding any information that it has furnished to TEMESIS shall be its direct responsibility and that it shall reimburse TEMESIS for any sums, as the case may be, which the latter might be ordered to pay in such connection, as well as any lawyers fees which it may be forced to incur for its defence.

16. Financial terms and conditions

As consideration for the right to use the Database and the Application Software which is granted to the subscriber to the offer by TEMESIS, the subscriber to the offer undertakes to pay a yearly licence fee corresponding to the chosen option as described on the www.opquast.com website at the time of subscription, or, in the case of a subscription to the “My-Opquast Partner” offer, the licence fee negotiated between the parties.
The prices shall be fixed and constant for the initial term of the contract. One (1) month before the anniversary date of these Terms and Conditions, TEMESIS shall inform the subscriber to the offer of the amount of the fees for the following year. TEMESIS undertakes to limit any increase in price to 5% of the licence fee that the subscriber to the offer has paid for the current year.
The subscriber to the offer shall have fifteen (15) calendar days from the date it receives the new fee amount in which to express its disagreement with the new amount. In such case, the contract shall be terminated on its anniversary date and the subscriber to the offer shall not be entitled to any payment of compensation in such respect. Where no word is received from the subscriber to the offer with regard to the new prices, it shall be deemed to have agreed to the application of the new prices with effect from the first licence fee after the anniversary date of this contract.
Prices shall be stated exclusive of tax and all taxes, notably VAT, applicable at the time of billing, shall be added thereto.

17. Default interest

In the event that the subscriber to the offer fails to make a payment on its due date, it is expressly agreed that, where no extension of time to pay has been requested in time and specifically granted by TEMESIS in writing, such failure shall, notwithstanding the “Termination - Rescission” clause, give rise to:
- A limitation of the access to the Database on the day following the anniversary date (access falls back to what it is in the standard offer and services are suspended).
- Permanent removal of the account and destruction of related data sixty days (60) after the anniversary date.
- Billing of interest due and payable by mere fact of the expiry of a contractual instalment date and amounting to one and a half (1.5) times the legal interest rate in force at the time of non payment.

"Configuration":

Notwithstanding any other clauses hereunder, the subscriber to the offer shall be under an obligation to keep strictly confidentiality any information that has been provided by TEMESIS but which has not been disclosed by it.
The subscriber to the offer undertakes to procure that such provisions shall be complied with by its members of staff and all and any employees or third parties who might take part or be involved in any connection whatsoever hereunder.
This obligation as to confidentiality shall remain in force throughout the entire term of this contract.

19. Responsibility and liability

TEMESIS shall be under an obligation to use its best endeavours and all reasonable means (obligation de moyens) for the purpose of performing the contract.
The subscriber to the offer is informed that TEMESIS cannot guarantee that the Database is free of errors, complete or up to date.
In all events, use of the Database shall be carried out under the sole control, direction and responsibility of the subscriber to the offer who shall therefore use the data in the Database at its own risk and shall alone accept responsibility for decisions taken based on the said data.
Under no circumstances whatsoever shall TEMESIS be liable for any indirect loss, such as commercial losses, loss of customers, loss of profits, any commercial disruption or loss of brand reputation, suffered by the subscriber to the offer and that might result from the use of the Database.
Any action taken by a third party against the subscriber to the offer shall be treated as an indirect loss and consequently shall not give rise to any redress.
More generally, TEMESIS cannot be held liable for any commercial disruption which might result from access to the Database being impossible for any amount of time or from the use of incorrect information contained in the Database.
However, in the event that TEMESIS is held liable under the terms and conditions of this contract, the amount of any damages that it might be ordered to pay shall be expressly limited to the yearly subscription effectively paid by the subscriber to the offer to TEMESIS during the year in which the loss occurred.

20. Proof

The computerized registers, kept in the information systems maintained by TEMESIS under reasonable security conditions, shall be considered as proof of communications between TEMESIS and the subscriber to the offer.

21. Legal and administrative authorizations.

Both Parties undertake to obtain all legal and administrative authorizations required for the purposes of performance hereunder and, in particular, to file the necessary declarations with the Commission Nationale de l'Informatique et des Libertés (CNIL – the French national data protection centre) in accordance with the provisions of Law N°78-17 of January 6th, 1978, as amended by Law N°2004-801 of August 6th, 2004.

22. Force Majeure

Initially, an event of force majeure or an act of God shall suspend performance under these Terms and Conditions.
If a situation created by an event of force majeure or an act of God persists beyond a period of three (3) months, this contract shall automatically be terminated unless both parties agree otherwise.
It is hereby expressly stated that, in addition to those usually accepted as such under case law from French courts and tribunals, an event of force majeure or an act of God shall be deemed to include: total or partial strikes or other organized labour action, whether within the company or not, lock-outs, bad weather, epidemics, any blocking of transportation or supply resources whatsoever, earthquakes, fire, storms, floods, water damage, legal or government restrictions, statutory or regulatory changes in forms of commercialization, computer failures, unavailability of telecommunications resources, including networks, and any other events outside the express control of the parties and preventing due performance under this contract.

23. Termination - Rescission

In the event that one of the parties is in breach of any single obligation hereunder, and such breach is not rectified within thirty (30) calendar days from the dispatch of a registered letter with acknowledgement of receipt which gives details of the breach concerned, the other party shall be entitled to require the termination or rescission of these Terms and Conditions without prejudice to any damages which it might be entitled to claim by virtue of the said Terms and Conditions.

24. Assignment

These Terms and Conditions may not be assigned, either in full or in part, for valuable consideration or otherwise, by either party unless it has obtained the prior written consent of the other party.

25. Sub-license

These Terms and Conditions may not be made the subject by the subscriber to the offer of a user sub-licence, whether for valuable consideration or otherwise.

26. Independence of the parties

Neither party may enter into any commitment for or on behalf of the other party.
Furthermore, each party shall remain solely liable for its acts, allegations, undertakings, services, products and personnel.

27. Entire agreement

These Terms and Conditions constitute all the obligations between the parties.
No general or particular term or condition contained in any documents sent or handed over by the parties shall form part of these Terms and Conditions.
These Terms and Conditions may only be amended by way of a supplemental agreement signed by the legally authorized representatives of the subscriber to the offer and TEMESIS.

28. Titles and headings

In the event of difficulty in interpreting any of the clause titles heading up the clauses and any of the clauses, the titles shall be declared not to exist.

29. No waiver

The fact that one of the parties fails to exercise it rights with regard to a breach by the other party of any obligation whatsoever specified hereunder, shall not be construed in the future as any waiver of the breach concerned.

31. Partial invalidity

If one or more of the provisions under these Terms and Conditions is or are considered or declared invalid pursuant to the law, any regulations or as the result of a final judgment entered by a relevant court, the remaining provisions shall nonetheless continue to apply in full force and effect.

31. Governing law

These General Terms and Conditions shall be governed by French law.
This applies to both rules on the merits as well as rules on the form.

32. Jurisdiction

N THE EVENT OF DISPUTE AND WHERE NO OUT-OF-COURT SETTLEMENT IS REACHED, THE PARTIES SHALL EXPRESSLY SUBMIT TO THE JURISDICTION OF THE TRIBUNAL DE GRANDE INSTANCE (LARGE CLAIMS COURT) OF BORDEAUX, NOT WITHSTANDING THE PLURALITY OF DEFENDANTS OR ANY THIRD PARTY JOINDER, EVEN IN THE CASE OF EXPEDITED PROCEEDINGS OR PROTECTION OR SUMMARY PROCEEDINGS OR PROCEEDINGS ON PETITION.

33. Address for service - Notices

TEMESIS has chosen the address stated at the beginning of these Terms and Conditions as its address for the service of due process and notices.
Unless TEMESIS is informed of a change at a later date, the subscriber to the offer shall be deemed to have chosen the address provided at the time of subscription as its address for the service of due process and notices.
All and any modification of contact information must immediately be notified in writing to TEMESIS, notably in the case of an address change or an email address change.
All notices and notifications, in order to be valid, must be given or sent to the address chosen for service of due process and notices.

34. Schedules

There are no schedules attached to these General Terms and Conditions.

Version 2.00 - September 2005