BUSINESS AGREEMENT
FOR NEWZIK ENSEMBLE AND EDUCATION
PREAMBLE
SYNCSING, a simplified joint-stock company with a capital of 5.804,70€, registered under number 525 205 514, registered office located at 7 avenue Ingres, 75016 Paris, France, acting through its legal representative ("NEWZIK"), publishes and operates the NEWZIK software (either in the form of the NEWZIK mobile application on iOS or the NEWZIK web platform web.newzik.com) and the website https://newzik.com/ .
NEWZIK offers to schools or professional organizations agreeing to these terms (the "Customer"), a collaborative music reading software (the “Service"). The Service is provided for both the Customer’s central account and Customer’s members ("Users") accounts whose total number is defined on the Order Form.
This Newzik Business Agreement ("Agreement"), concluded between NEWZIK on the one hand, and the Customer on the other hand (together referred to as "the Parties"), is intended to establish the contractual provisions relating to the respective rights and obligations of the Parties in connection with the access to the Service purchased. The Customer and Users may access and use the Service in accordance with the Agreement.
The Customer acknowledges that he has expressly read, understood and accepted this Agreement by validating the Order Form without limitation or condition in connection with the access to and use of the Service. This Agreement constitutes the complete and exclusive agreement between the Customer, on the one hand, and NEWZIK, on the other hand. To the extent that NEWZIK, on behalf of the Customer, is processing Customer Data that is subject to EU Data Protection Laws, by accepting this Agreement, the Customer is also agreeing to the Data Processing Agreement and EU Standard Contractual Clauses (appendix 1 of the present Agreement), with NEWZIK for the transfer of personal data to processors.
If you are agreeing to this Agreement and, if applicable, the Data Processing Agreement, for use of the Service by a school or an organization, you are agreeing on behalf of that organization. You must have the authority to bind that organization to these terms, otherwise you must not sign up for Service.
NEWZIK reserves the right to change, modify all or part of this Agreement. The Customer is informed of these changes directly by email. NEWZIK will notify Customer and Users at the email addresses associated with their accounts. Upon request by Customer within thirty days of the notification, NEWZIK is obliged to discuss all changes and modifications of this Agreement with Customer. By continuing to access or use the Service after revisions become effective, the Customer agrees to be bound by the revised Agreement. Customer may provide notice within thirty days of the change to terminate the Agreement. This termination right will not apply to updates made to features provided on a beta or evaluation basis. For certain significant new features, NEWZIK may notify Customer and Users of the new features via email, provided that an option to unsubscribe from receiving such emails will be available to any potential recipient.
The Customer is responsible for ensuring that all Users are aware of these terms of Service and that they comply with them.
This Agreement supersedes any prior agreements or understandings between the Parties, and constitutes the entire agreement between the Parties related to this subject matter. All attachments to this Agreement, the Data Processing Agreement, Customer invoices and Order Forms executed by the Parties are hereby incorporated into the Agreement by this reference.
NEWZIK Service allows Customer and Users to download NEWZIK software that may update automatically. NEWZIK hereby grants to Customer during the Term a limited non-exclusive license to use the NEWZIK solely in connection with the Service and in accordance with the Agreement. This license is non-transferable, irrevocable (except as set forth in Article 5), non-sublicensable, and will be fully paid up upon Customer's payment of the fees.
DEFINITIONS
Each capitalized term used in the Agreement herein shall have the meanings set forth below.
Agreement: refers to the Newzik Business Agreement concluded between NEWZIK on the one hand, and the Customer, on the other hand regarding the Service.
Content: refers to all imported content to NEWZIK accounts (scores, texts, photos, audio, video...).
Customer: refers to an organization, a school or a person that sets up an account to use the Service.
Customer Data: refers to Stored Data, annotations, account data, and messages, comments, structured data, images, and other content submitted to the Service by the Customer or the Users.
Data Processing Agreement: refers to the agreement with NEWZIK related to compliance with EU Data Protection Laws which is enclosed in the appendix 1 of the present Agreement.
Degraded Version: refers to a version of the Content that cannot be used for rehearsal or performance. A watermark will completely hide the major part of the content, making it unreadable. The annotations, however, will remain visible.
NEWZIK API: refers to the Application Programming Interfaces and Newzik Publishing Platform which is the intermediary between Customers and Publishers in order to import Publisher’s content to NEWZIK.
Order Form: refers to an ordering document whose validation by Customer means its acceptance of the Agreement and establishes the contractual provisions between both Parties.
Products: refers to music scores and music content sold by Publishers to the Customer via NEWZIK API.
Publishers: refers to a publisher of music scores and musical content, acting in a professional capacity, who use NEWZIK API in order to distribute its Products to Customers.
Server: refers to a secure NEWZIK cloud storage for all Customer Stored Data.
Service: refers to the software offering a collaborative music reading that NEWZIK makes available as a service via the App or the Web.
Stored Data: refers to all imported Content to NEWZIK accounts including notes and information affixed by the Customer and Users in digital form to this Content (such as annotations...).
Student Data: refers to the personally identifiable information that is directly related to an identifiable current or former student that is maintained by a school, school district, or by NEWZIK.
Term: refers to the term of the Agreement, which will begin on the effective date and continue until the earlier of: (i) the end of all applicable Service Terms; or (ii) the Agreement is terminated as set forth herein.
Users: refers to any person authorised by the Customer to access the Service.
NEWZIK’S ROLE AND SERVICES
The ServiceNEWZIK is published by SYNCSING, which acts as:
1) Service provider allowing the Customer to have a custom system to manage centrally the score library and its members, Users. The Service, ordered by Customer via the Order Form, includes unlimited import of files and access to collaborative features.
2) Intermediary to connect Publishers wishing to distribute their Products to Customer via the NEWZIK API. As such, NEWZIK does not own the Products sold via NEWZIK API, exercises no control over them and cannot be held responsible for the quality or delivery by the Publisher of the Products resulting from the transaction between the Publisher and the Customer. The sales contract for each Product is therefore concluded exclusively and directly between the Publisher, owner and seller of the Product and the Customer. NEWZIK only acts as a simple technical intermediary in NEWZIK API.
If the Customer uses any NEWZIK API, NEWZIK does not warrant or support any services provided by the Publishers. The Customer will comply with any NEWZIK API limits associated with the services plan purchased by the Customer. All indications on Product prices and Product delivery methods are established by the Publishers without NEWZIK's intervention. In addition, it is specified that the Publishers do not have the status of employee, proxy, agent or representative of NEWZIK.
CUSTOMER OBLIGATIONS
Generally
Customer is responsible for use of the Service by its Users. The Customer and Users undertake, while using the Service, not to violate public order and to comply with the laws and regulations in force, to respect the rights of third parties and the provisions of this Agreement. Both Customer and Users have the obligation to:
Perform a regular backup of Stored Data by exporting its Content in PDF or ZIP formats (which includes notes and information affixed by the Customer and Users in digital form to this Content, such as annotations...);
Behave in a fair and reasonable manner towards NEWZIK, other Users and third parties;
Be honest and sincere in the information provided to NEWZIK and, where applicable, to other users;
Use the Service in accordance with its purpose as described in this Agreement;
Not misuse the purpose of the Service to commit crimes, misdemeanors or contraventions punishable by the Criminal Code or any other law;
Respect the privacy of third parties and the confidentiality of exchanges;
Not to seek to undermine the automated data processing systems implemented on the Service within the meaning of Articles 323-1 and following of the Criminal Code;
Do not decrease, disrupt, slow down or interrupt the normal functioning of the Service.
The Customer will obtain and maintain from Users any consents necessary to engage the activities described in the Agreement and to allow NEWZIK to deliver the Service. The Customer will prevent unauthorised use of the Service by its Users and terminate any unauthorised use of or access to the Service. User accounts may only be provisioned, registered and used by a single User.
Restrictions
The Customer will not: (a) sell, resell, or lease the Service; (b) reverse engineer the Service, or attempt or assist anyone else to do so, unless this restriction is prohibited by law; (c) use the Service, including the export or re-export of Customer Data, in violation of laws; (d) violate or circumvent any service limits of the Service or otherwise configure the Service to avoid service limits; or (e) establish a NEWZIK business account as an individual for personal, family, or household purposes.
In compliance with the legal and regulatory provisions in force and in accordance with the law and in particular the law of 29 July 1981 on freedom of the press, the Customer undertakes, in particular, not to disseminate messages or information constituting wrongful denigration against NEWZIK, contrary to public policy and morality, offensive, defamatory, racist, xenophobic, revisionist or damaging to the honor or reputation of others, inciting discrimination, hatred of a person or group of persons on the grounds of their origin or their membership or non-membership of an ethnic group, a specific nation, race or religion, threatening a person or group of persons, of a pedophile nature, inciting to commit a misdemeanor, a crime or an act of terrorism or advocating war crimes or crimes against humanity, inciting suicide, allowing third parties to obtain directly or indirectly pirated software, or allowing acts of piracy, viruses or malware and generally any software or other tool making it possible to infringe the rights of others and the security of persons and property.
DURATION AND TERMINATION
The Agreement comes into force upon validation by the Customer of the Order Form. To validate the order, the Customer declares that he has read and accepted the Agreement before placing his order. Thus, the validation of the Order Form is therefore equivalent to acceptance of this Agreement.
The applicable provisions are those in force in the Agreement at the time of the order. The duration of this Agreement is indexed to the duration of use of the NEWZIK accounts by the Customer, as defined in the Order Form.
Unless otherwise specified on the Order Form, following the initial Service Term or a renewal Term, the subscription to the Service will automatically renew for a renewal Term, unless either Party gives the other written notice of termination at least thirty days prior to the expiration of the then-current Service Term.
The Agreement, including all Order Forms, may be terminated:
by each Party if the other Party is in material breach of the Agreement and fails to cure that breach within fifteen (15) days after receipt of written notice;
if the Customer ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days;
in case of interruption of the Service, when NEWZIK undertakes to notify the Customer, by any means, at least one (1) month before the interruption so that the latter can take its measures, in particular with regard to Customer Data backup;
if required to do so by law or for an egregious violation by the Customer of the provisions of this Agreement, NEWZIK may terminate this Agreement and suspend the Customer’s access to the Service if a formal notice has remained without effect within a period of fifteen (15) days.
If the Agreement is terminated:
the rights and licenses granted to the Customer will cease immediately which results in the deletion of access to all Customer’s and its Users’ accounts and its Customer Data;
the Customer is responsible for saving the Customer Data prior to the deletion request or before the scheduled deletion date;
the Customer may, prior to termination, request thirty (30) additional days to export its Customer Data in PDF format except of any potential restrictions of third parties, provided that NEWZIK can charge the Customer for this extended access based on NEWZIK's then-current standard fees;
NEWZIK will delete any Users accounts and Customer Data in the Customer’s account in a commercially reasonable period of time following receipt of Customer’s request to do so, prior to termination of the Service. NEWZIK may make instructions available to the Customer regarding how to submit a request of Customer’s accounts and Users accounts deletion and the Customer is responsible for following these instructions to initiate a deletion.
The following articles will survive expiry or termination of the Agreement: 5 (effects of termination), 9 (Intellectual Property Rights), 10 (Liability and Disclaimers), 11 (Pricing – Payment) and 12 (Miscellaneous).
TECHNICAL SPECIFICATIONS
Access to the service
The Customer acknowledges that he has the means and skills necessary to use the Service. The Customer is responsible for the equipment necessary to access and use the Service, as well as the telecommunications costs incurred by their use.
To use the Service, the Customer must create an account and create the Customer's school or organization’s domain. The Customer is responsible for maintaining the confidentiality of login details for the created account and must not disclose them to any third party. Connection identifiers are strictly personal and must be kept secret by the Customer and the Users. Any operation carried out on NEWZIK using the Customer's identifiers is deemed to have been carried out by the Customer, who is responsible for keeping his identifiers.
The Customer must ensure that the information provided for opening the accounts is accurate and must immediately notify NEWZIK of any changes so that the information can be updated. In the event that the Customer's registration information is not updated, complete and/or accurate, NEWZIK reserves the right to suspend access to the Service.
The Customer is responsible for ensuring that all Users are aware of these Terms of Service and that they comply with them.
Cloud storage
NEWZIK is a technology provider with the Server for all Stored Data. NEWZIK accounts allow Customer and Users to send Stored Data to the Server for cloud storage every time Customer’s and Users’ devices go online. The Customer and Users can thus store and synchronize Stored Data across multiple devices which collaborate with others.
If Customer and Users delete their Stored Data from their NEWZIK account, the Stored Data will be also deleted from the Server and cannot be retrieved.
The communication of Stored Data is secured while sent to the Server and NEWZIK guarantees an exclusive security protocol (OAUTH2) to access the Server and each specific account information. With this level of security, the Stored Data can only be accessed by Users who are authorized by Customer and have the personal connection identifiers. NEWZIK Servers have different locations for security reasons, but all are located in the “EU-west-1” region and are hosted by Amazon Web Services.
IMPORT OF CONTENT
import of content belonging to customer
The Customer may import Content to in the formats accepted on NEWZIK in order to integrate this Content into its personal library for its own use and under the conditions of legal use of this Content. It is prohibited to import to the Service library illegal content and content that is copyright protected. The Customer is the sole master of what he imports under his responsibility. In the event of a complaint due to illegal content, NEWZIK may suspend access to the NEWZIK accounts upon prior notice. The suspension shall take place within thirty days of notification.
Import of content from the newzik api
While importing files coming from the NEWZIK API, this Content will be stored in the Customer’s account. The Publisher may then decide to apply certain technical restrictions. NEWZIK allows the Publisher to manage restrictions as they might be set out in the contract between the Publisher and the Customer:
Expiration date: On the date of expiration of the Customer's rights to the Publisher’s content, he will no longer have access to the Publisher’s content as distributed by the Publisher. The Customer will have access to a Degraded Version, which he can only use to find annotations previously made by him. If the Customer renews the contract made with the Publisher for the same content, all the annotations and edits made on the content will be fully retrieved and accessible.
Number of licenses: The number of licenses granted by the Publisher over the Publisher’s content corresponds to the number of Users who will have access to it;
Printing: The Publisher can authorize or deny printing of the Publisher’s content by the Customer and Users;
The Publisher undertakes to set on the Service only those restrictions set out in the contract between the Publisher and the Customer.
Content from the NEWZIK API can be accessed by the Customer and the Users or other third parties to whom Customer decides to gives access to, while respecting the Publisher’s restrictions.
CUSTOMER DATA
Limitation and sharing
NEWZIK and its subcontractors will only access, store and transfer Customer Data to deliver the Service and to fulfil NEWZIK’s obligations in the Agreement. Any NEWZIK personnel who have access to Customer Data will be bound by appropriate confidentiality obligations.
NEWZIK will use industry standard technical and organizational security measures to transfer, store, and process Customer Data.
The Service may enable Users to share the Customer Data, including to other Customer Users and to third parties. Recipients of shared Customer Data may access, view, download, and share this Customer Data, including in and through their own accounts. The Customer understands: (a) it is solely the Customer’s, and its Users’, choice to share the Customer Data; (b) NEWZIK cannot control third parties with whom the Customer has shared the Customer Data; and (c) the Customer and its Users are solely responsible for their use of the Service, including any sharing of the Customer Data through the Service, use of the Service, including any sharing of the Customer Data through the Service.
Third-party request
The Customer is responsible for responding to third-party requests via its own access to information. The Customer will seek to obtain information required to respond to third-party requests and will contact NEWZIK only if it cannot obtain such information despite diligent efforts.
If NEWZIK receives a third-party request, NEWZIK will make commercially reasonable efforts, to the extent allowed by law and by the terms of the third-party request, to: (i) notify the Customer promptly of NEWZIK’s receipt of a third-party request; (ii) comply with the Customer's commercially reasonable requests regarding its efforts to oppose a third-party request; and (iii) provide the Customer with information or tools required for the Customer to respond to the third-party request, if the Customer is otherwise unable to respond to the third-party request. If NEWZIK is prohibited from notifying the Customer of a third-party request or the Customer fails to respond promptly to any third-party request, NEWZIK may, but will not be obligated to do so, to the extent permitted by applicable law.
Customer data transfer
The Customer agrees that NEWZIK and its subcontractors may transfer the Customer Data to and access and store the Customer Data in locations other than the Customer’s country.
To the extent the Customer Data is subject to EU Data Protection Laws and is processed by NEWZIK on the Customer’s behalf, Customer and NEWZIK agree to the Data Processing Agreement. The Data Processing Agreement applies only to the Service.
Student data - United States
To the extent that the Users of the Customer’s accounts are students and that U.S. law applies, Student Data may include “educational records” as defined by the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C., § 1232(g). NEWZIK accesses, collects, and processes Student Data, as an outsourced institutional function pursuant to FERPA.
As between Customer and NEWZIK, the Customer owns all right, title and interest to all Student Data the Customer provides or otherwise makes available to NEWZIK, and NEWZIK processes such Student Data solely for the purpose of providing the Service to the school.
Both NEWZIK and the Customer agree to uphold their responsibilities under Laws governing personal data and Student Data, including FERPA, the Protection of Pupil Rights Amendment (PPRA), and the Children’s Online Privacy and Protection Act (“COPPA”). NEWZIK relies on each school to obtain and provide appropriate consent and disclosures, if necessary, for NEWZIK to collect any Student Data directly from students under 13, as permitted under COPPA rules and regulations.
By submitting or providing NEWZIK access to Student Data, the Customer grants to NEWZIK a non-exclusive, royalty-free, worldwide license during the Term of the Agreement to use, modify, reproduce, display, sublicense and store the Student Data solely for the purposes of
(i) providing the Service to the Customer and Users,
(ii) improving and developing the Service,
(iii) enforcing NEWZIK’s rights under the Agreement, and
(iv) as permitted with the School’s, student’s or parent’s consent.
NEWZIK may collect, analyze, use, store, transmit, distribute, modify, copy, display, sublicense, and create data derived from Student Data, as well as data about Customer’s, and other users’ access and use of the Service. If NEWZIK shares or publicly discloses information (e.g., in marketing materials, or in product development) that is derived from Student Data or Customer’s use of the Service, such data will be de-identified, aggregated, or anonymized to reasonably avoid identification of an individual Student or the school. Notwithstanding anything to the contrary, NEWZIK shall not use Student Data to engage in interest-based advertising.
The Customer may request that NEWZIK deletes Customer’s Student Data in its possession at any time by providing such a request in writing, which request NEWZIK shall then comply with in a commercially reasonable time not to exceed two (2) weeks. NEWZIK will otherwise delete or de-identify Student Data within a commercially reasonable time following the end of the Term of the Agreement. NEWZIK is not required to delete any data that has been derived from Student Data, including Student Data that has been de-identified, aggregated, or anonymized.
NEWZIK will implement commercially reasonable administrative, physical and technical safeguards designed to protect Student Data from unauthorized access, disclosure or use. In the event that NEWZIK discovers that an unauthorized party has gained access to personally identifiable Student Data, NEWZIK will promptly notify the Customer and will use reasonable efforts to cooperate with Customer’s investigation of the incident. If such incident triggers any third-party notice requirements under U.S. law, the Customer agrees that as the owner of the Student Data, the Customer will be responsible for the timing, content, cost, and method of any such notice and compliance with such law.
INTELLECTUAL PROPERTY
Intellectual property rights
The Customer acknowledges NEWZIK's intellectual property rights over the Service, its components and related content and waives any right to contest these rights in any form whatsoever. The trademarks, logos, slogans, graphics, photographs, animations, videos, software solutions and texts contained on the Service are the exclusive intellectual property of NEWZIK or the Third-Parties and may not be reproduced, used or represented without explicit prior authorization under penalty of legal action. Warning: downloading an element of the Service on a computer, does not give the Customer any property right on this element.
Any representation or reproduction, in whole or in part, of the Service and its content, by any means whatsoever, without the explicit prior authorization of NEWZIK, or where applicable of the Publisher with regard to the content distributed by them, is prohibited and shall constitute an infringement punishable by Articles L. 335-2 and following and Articles L. 713-1 and following of the Intellectual Property Code. In particular, NEWZIK expressly prohibits:
Extraction, by permanent or temporary transfer of all or a qualitatively or quantitatively substantial part of the content of the NEWZIK database to a medium other than the NEWZIK account, by any means and in any form whatsoever;
Reuse, by making available to the public all or a qualitatively or quantitatively substantial part of the content of the NEWZIK database or account, in any form whatsoever.
The acceptance of this Agreement constitutes recognition by the Customer of NEWZIK's intellectual property rights and an undertaking to respect them. The practice of hyperlinking to a NEWZIK page is prohibited without NEWZIK's explicit prior written consent.
Customer intellectual property rights
This Agreement does not confer to NEWZIK any intellectual property rights in the Customer Stored Data.
The intellectual property rights of the notes and information (such as annotations) affixed by the Customer and Users in digital form to the Publisher’s Product in NEWZIK belong to the Customer.
The Customer grants NEWZIK only the limited rights that are reasonably necessary for NEWZIK to provide the Service. This limited authorization also extends to subcontractors, including those in charge of data processing.
NEWZIK may use, modify and incorporate in its functionalities and services, licenses and sub-licenses, feedback, comments and suggestions on the services transmitted to NEWZIK by the Customer and Users or published by the Users on NEWZIK's forums, without any obligation to the Customer.
Newzik customer license
NEWZIK grants a personal, non-exclusive and non-transferable license to the Customer authorizing them to use the Service in accordance with this Agreement, i.e. pursuant to the copyrights and license agreements concluded with the third-parties. Any other use of the Service and its content is excluded from the scope of this license and may not be made.
LIABILITY AND DISCLAIMERS
Limitation of liability
It is expressly agreed between the Parties that NEWZIK is subject to a general obligation of means and that it is not bound by any obligation of result or enhanced means of any kind. NEWZIK undertakes to do everything in its power to ensure continuity of access and use of the Service, 7 days a week and 24 hours a day.
NEWZIK shall not be held liable in case of damage caused in the following cases: (1) total or partial temporary unavailability of access to the Service due to technical maintenance operations or software updates; (2) in the event of virus attacks; (3) if the Customer or a third party use the Service in an unlawful or abnormal way; (4) if the Customer provides incomplete or erroneous information; or (5) in the case of a foreign event for which NEWZIK cannot be held responsible.
NEWZIK draws your attention to the fact that current Internet communication protocols make it impossible to continuously and securely ensure the transmission of electronic signals. NEWZIK shall not be held responsible in the event of data loss, intrusions, viruses, breakdown of service or other problems not imputable to NEWZIK.
And more generally, to the fullest extent permitted by law, neither Customer nor NEWZIK and its suppliers and distributors will be liable under the Agreement for (i) indirect, special, incidental, consequential, exemplary or punitive damages, or (ii) loss of use, data, business, revenues or profits (in each case whether direct or indirect), even if the party knew or should have known that such damages were possible and even if a remedy fails of its essential purpose.
To the fullest extent permitted by law, NEWZIK's aggregate liability under the Agreement will not exceed the lesser of 10.000 euros or the amount paid by Customer to NEWZIK hereunder during the twelve months prior to the event giving rise to liability.
It is expressly agreed between the Parties that the provisions of this clause shall continue to apply even in the event of a resolution of this clause by a court decision that has become final.
Disclaimers
The Service is provided "as is" to the fullest extent permitted by law, except as expressly stated in the Agreement, neither the Customer nor NEWZIK make any warranty of any kind, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular use or non-infringement. The Customer is responsible for using the Service in accordance with the terms set forth herein and backing up any Customer Data on the Service.
Despite anything to the contrary in the Agreement: (a) the Customer may choose to use beta services at its sole discretion; (b) beta services may not be supported and may be changed at any time without notice; (c) beta services may not be as reliable or available as the Service; (d) beta services have not been subjected to the same security measures and auditing to which the Service has been subjected; and (e) NEWZIK will have no liability arising out of or in connection with beta services – use at your own risk.
NEWZIK offers beta services in order to get user feedback. In exchange for using beta services, the Customer agrees that NEWZIK may contact Customer and its Users to obtain feedback regarding beta services. Beta services are confidential until officially launched by NEWZIK.
Web hosting provider status
The Customer acknowledges NEWZIK’s status as a web hosting provider, as defined under Article 6 I 2° of Law No. 2004-575 of June 21, 2004, regarding Confidence in the Digital Economy.
NEWZIK shall not moderate, control nor proceed to any advance validation of content uploaded to NEWZIK.
PRICING - PAYMENT
Customer will pay NEWZIK all applicable fees for the Service, in the currency and pursuant to the payment terms indicated on the Order Form. Customer authorizes NEWZIK to charge Customer for all applicable fees using Customer's selected payment method, and Customer will issue the required purchasing documentation. Fees are non-refundable except as required by law or as otherwise specifically permitted in the Agreement.
If the Customer's account is set to auto-renewal or is in a trial period and the Customer has already provided a method of payment to NEWZIK for the Service, NEWZIK may charge automatically at the end of the trial or for the renewal, unless the Customer notifies NEWZIK that the Customer wants to cancel or disable auto-renewal.
NEWZIK may revise the Service rates by providing the Customer at least thirty days' notice prior to the next charge.
The Customer will pay NEWZIK invoices on the payment interval set forth in the Order Form. NEWZIK may suspend or terminate the Service if fees are past due. The Customer will provide complete and accurate billing and contact information to NEWZIK.
NEWZIK will charge taxes when required to do so. If the Customer provides NEWZIK or its reseller with a valid exemption certificate, NEWZIK will not collect the taxes covered by that certificate.
The price indicated at the time of payment is firm and final. Any delay in payment will bear interest from the first day of delay at a daily rate of three (3) times the legal interest rate.
MISCELLANEOUS PROVISIONS
Interpretation of conflicting terms
If there is a conflict between the documents that make up the Agreement, the documents will control in the following order: the invoice, the Service addenda (if applicable), Order Form, the Agreement. The terms and conditions of the Agreement will be considered the confidential information of NEWZIK, and the Customer will not disclose the information to any third parties. The Customer agrees that any terms and conditions on a Customer purchase order will not apply to the Agreement and are null and void. If Users are required to click through terms of service in order to use the Service, those click-through terms are subordinate to this Agreement and the Agreement will control if there is a conflict.
Confidential information
Each party may have access to the other party's confidential information in order to fulfill its obligations under this Agreement. A party's confidential information shall not be deemed to include information that :
a. is or becomes publicly known otherwise than by an act or omission of the receiving party ;
b. was in the lawful possession of the other party prior to disclosure ;
c. is lawfully disclosed to the receiving Party by a third party without restriction on disclosure ;
d. are independently developed by the receiving party, such independent development being demonstrable by documentary evidence; or
e. must be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
Each party shall keep the other party's confidential information confidential and, except as required by law, shall not make the other party's confidential information available for any use other than as necessary to perform this Agreement.
Each party shall take all reasonable steps to ensure that confidential information of the other party to which it has access is not disclosed or distributed by it or its employees or agents in violation of this Agreement.
Disputes
Before filing a claim, each Party agrees to try to resolve the dispute by contacting the other Party in a friendly way through the notice procedures. Notices must be sent via email, first class post, airmail or overnight courier and are deemed given when received. If a dispute is not resolved within thirty days of notice, the Customer or NEWZIK may bring a formal proceeding.
Governing law and jurisdiction
Unless otherwise provided, this Agreement herein is governed by the laws of France. In the event of a dispute concerning their implementation, execution or interpretation, and in the absence of an amicable settlement, the competent courts are the French courts.
Assignment
The Customer may not assign or transfer the Agreement or any rights or obligations under this Agreement without the written consent of NEWZIK, except that Customer may assign the Agreement to the surviving entity in connection with a merger, acquisition or sale of all or substantially all of its assets by providing written notice to NEWZIK.
Force majeure
NEWZIK shall not be liable, or be considered to have failed its obligations set out in the Agreement herein, for any failure or delay in the performance of its obligations due to force majeure as defined by the case law of the French courts and tribunals, including in particular in the event of an attack by computer hackers, unavailability of equipment, supplies or spare parts, personal or other equipment, and interruption, suspension, reduction or disturbance of electricity or other power or other disturbances or any interruptions of electronic communications networks, as well as in the event of the occurrence of any circumstance or event beyond NEWZIK's control occurring after the conclusion of the Agreement and preventing performance under normal conditions. It is specified that, in such a situation, the Customer may not claim any compensation or bring any action against NEWZIK. In the event of such an event, NEWZIK shall endeavor to inform the Customer as soon as possible.
Waiver
Given the nature of their exchanges and in particular the dematerialization of their relationship, the Parties agree that the computer records in NEWZIK's information system have the value of evidence. Any waiver of any provision of this Agreement shall not be deemed acceptance of the breach, non-performance or subsequent breach of such provision.
LEGAL NOTICE
SYNCSING - NEWZIK
Simplified joint-stock company with a capital of 5.804,70€
Registered under number 525 205 514
Registered office located at 7 avenue Ingres, 75016 Paris
Contact email address: contact@newzik.com
The website is hosted by:
Google LLC
1600 Amphitheatre Parkway
Mountain View, California 94043
United States
The software is hosted by:
Amazon Web Services
Telephone: (206) 266-4064
Appendix 1
DATA PROCESSING AGREEMENT
PREAMBLE
This Data Processing Agreement ("DPA") forms part of the Newzik Business Agreement ("Agreement") between
The organization agreeing to the terms of the Agreement,
(the "Customer")
and
SYNCSING - NEWZIK, a simplified joint-stock company with a capital of 5.804,70€, registered under number 525 205 514, registered office located at 7 avenue Ingres, 75016 Paris, France, acting through its legal representative,
(the "NEWZIK") (together as the “Parties”)
WHEREAS
(A) The Customer acts as a Data Controller.
(B) The Customer wishes to subcontract the Service, which imply the processing of personal data, to the NEWZIK.
(C) The Agreement and this DPA constitute Customer’s instructions to NEWZIK to Process Customer Personal Data. NEWZIK will use and Process Customer Personal Data as Customer instructs in order to deliver the Service and to fulfill NEWZIK’s obligations under the Agreement and this DPA. NEWZIK will inform Customer of any legal requirement which prevents it from complying with Customer’s instructions, unless prohibited from doing so by applicable law or on important grounds of public interest.
(D) The Parties seek to implement a data processing agreement that complies with the requirements of the current legal framework in relation to data processing and with the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation GDPR).
(E) The Parties wish to lay down their rights and obligations.
DEFINITIONS AND INTERPRETATION
Unless otherwise defined, capitalized terms and expressions used in this Data Processing Agreement have the same meaning as in the GDPR, and their related terms shall be interpreted accordingly.
Processing of Customer Personal Data
NEWZIK shall:
comply with all applicable Data Protection Laws in the Processing of Customer Personal Data; and
not Process Customer Personal Data other than on the relevant Customer’s documented instructions.
The Customer instructs NEWZIK to process Customer Personal Data.
NEWZIK Personnel
NEWZIK shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Customer Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Customer Personal Data, as strictly necessary for the purposes of the Agreement, and to comply with Applicable Laws in the context of that individual's duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
Security
Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, NEWZIK shall in relation to the Customer Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
In assessing the appropriate level of security, NEWZIK shall take account in particular of the risks that are presented by Processing.
Subprocessing
NEWZIK may appoint (or disclose Customer's Personal Data to) a Subprocessor provided that the Customer is informed. The Customer may then object to this within 15 days. When a Subprocessor processes within the European Union (the "EU") or Personal Data of Data Subjects located in the territory of the EU (the "EU Personal Data"), NEWZIK will ensure that the Subprocessor is subject to contractual obligations regarding EU Personal Data that meet the requirements of EU Data Protection Laws.
Customer authorizes NEWZIK to use the Subcontractors listed in Exhibit 1 of this Data Processing Agreement.
Data Subject Rights
Taking into account the nature of the Processing, NEWZIK shall assist the Customer by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer obligations, as reasonably understood by Customer, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
NEWZIK shall:
promptly notify Customer if it receives a request from a Data Subject under any Data Protection Law in respect of Customer Personal Data; and
ensure that it does not respond to that request except on the documented instructions of Customer or as required by Applicable Laws to which the NEWZIK is subject, in which case NEWZIK shall to the extent permitted by Applicable Laws inform Customer of that legal requirement before the Contracted Processor responds to the request.
Personal Data relating to children
The processing of Personal Data relating to a child is lawful when the child is at least 15 years old. In accordance with Article 8 of the GDPR, when the child is under the age of 15, such processing is lawful only if and to the extent that consent is given or authorized by the holder of parental responsibility over the child. When Customer Personal Data processed by NEWZIK concerns children under the age of 15, Customer must ensure that consent is given or authorized by the holder of parental responsibility for the child. NEWZIK will use reasonable efforts to verify, in such cases, that consent is given or authorized by the holder of parental responsibility for the child, taking into account the technological means available.
Personal Data Breach
NEWZIK shall notify Customer without undue delay upon NEWZIK becoming aware of a Personal Data Breach affecting Customer Personal Data, providing Customer with sufficient information to allow the Customer to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
NEWZIK shall co-operate with the Customer and take reasonable commercial steps as are directed by Customer to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
Data Protection Impact Assessment and Prior Consultation
NEWZIK shall provide reasonable assistance to the Customer with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Customer reasonably considers to be required by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Customer Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
Deletion or return of Customer Personal Data
Subject to this section 11, NEWZIK shall promptly and in any event within 10 business days of the date of cessation of any Service involving the Processing of Customer Personal Data (the "Cessation Date"), delete and procure the deletion of all copies of those Customer Personal Data.
NEWZIK will provide upon request a written certification to the Customer attesting that he has fully complied with the present article 11.
Audit rights
Subject to this Article 12, NEWZIK shall make available to Customer, upon request, all information necessary to demonstrate compliance with this DPA. In the event that the documentary audit proves to be insufficient, Customer may carry out inspections by Customer or an auditor mandated by Customer in connection with the Processing of Customer's Personal Data by contractual subprocessor. The performance of on-site audits is limited to one audit per year, subject to one month's notice and at the sole expense of the Customer.
Information and audit rights of the Customer only arise under section 12 to the extent that the DPA does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.
Data Transfer
Customer authorizes NEWZIK to transfer the Personal Data processed under this Data Processing Agreement to a country outside the EEA provided that sufficient safeguards are in place. If Personal Data processed under this Data Processing Agreement is transferred from an EEA country to a country outside the EEA, the parties will ensure that the Personal Data is adequately protected. In doing so, the Parties will rely, unless otherwise agreed, on the standard contractual clauses approved by the EU for the transfer of Personal Data.
General Terms
Confidentiality. Each Party must keep this DPA and information it receives about the other Party and its business in connection with this DPA confidential and must not use or disclose that confidential information without the prior written consent of the other Party except to the extent that:
disclosure is required by law;
the relevant information is already in the public domain.
Notices. All notices and communications given under this DPA must be in writing and will be delivered personally, sent by post or sent by email to the address or email address set out in the Order Form at such other address as notified from time to time by the Parties changing address.
Governing Law and Jurisdiction
Unless otherwise provided, this DPA herein is governed by the laws of France. In the event of a dispute concerning their implementation, execution or interpretation, and in the absence of an amicable settlement, the competent courts are the French courts.
Exhibit 1
Details of Processing
Subject Matter of the Personal Data Processing: The provision of the Service by NEWZIK to Customer.
Duration of the Personal Data Processing: the Term as defined in the Agreement, and any period after the Term prior to NEWZIK’s deletion of Customer Data.
Purpose and nature of the Processing of Personal Data:
NEWZIK uses the Data for the following purposes:
to give access to and provide the Service in accordance with the Agreement, including any updates and information about the Service;
to process and manage subscriptions and to keep the Users informed;
to analyze usage in order to improve the experience of the Service and other products and services provided by NEWZIK;
to host the Data and protect and ensure the proper functioning of the Service;
to comply with NEWZIK's legal obligation and to make the rights effective and enforce ours in the courts.
The Customer's Data are processed because they are necessary: (i) for the provision of the Service by NEWZIK, in accordance with the Agreement, (ii) according to NEWZIK's legitimate interest in informing its customers, ensuring the security of the Service and performing analyses to improve the Service (iii) to comply with a legal obligation to which NEWZIK is a party.
Categories of Personal Data: NEWZIK processes only the Data strictly necessary for its purposes. To the extent that Customer Data contains Personal Data, it may include User identification information including contact information, e-mail address and usage data (online and offline) in electronic form stored or transmitted by the Customer or Users via the Service.
Data Subjects: To the extent that the Customer's Data contains Personal Data, it may concern the Customer's Users, or any other person whose information is stored by the Customer in the stored Data.
Authorized Subprocessor: In order to provide the Customer and the Users with the Service, NEWZIK uses the following Subprocessor: