Última actualización: 2020-12-30
1.1 - LoungeUp, a French simplified joint stock company, (hereinafter "LoungeUp", "We", "Us" or "Our") is providing the service (hereinafter "Service" or "Dmbook Pro") and the supplementary services described on www.dmbook.pro (the "Website") in accordance with these Terms of Service (hereinafter the "Terms").
1.2 - These Terms form a legal agreement between LoungeUp and you (hereinafter "You" or the "User"). The Service is intended for business use only and is not for consumer use. In order to use the Service You have to be at least 18 years old and have the proper authority and power to enter into a binding agreement with Us.
1.3 - By using Our Service You agree to abide by these Terms. If You don't agree with these Terms, You do not have the right to use the Service.
2.1 - Subscription of the Service requires registration and establishment of an account on the Website (hereinafter "Account"). Registration is free of charge.
2.3 - LoungeUp reserves all rights and sole discretion to suspend or cancel any Accounts registered with inaccurate or incomplete information or for any other reason.
2.4 - The subscription grants You a limited right to use the Service in accordance with these Terms. In accordance with section 7.2 below, all Intellectual Property Rights relating to the Service and the templates and layouts of the Accounts We offer and the amendments thereto shall belong to LoungeUp or a third party as case may be.
2.5 - Trials. From time to time We may offer trials of the Service for a specified period without payment (a "Trial"). LoungeUp reserves the right to determine Your eligibility for a Trial, and to withdraw or to modify a Trial at any time without giving prior notice and with no liability whatsoever. For some Trials, We may require You to provide Your payment details to start the Trial. At the end of such Trials, We may automatically start to charge You for the Service on the first day following the end of the Trial, on a recurring monthly basis. By providing Your payment details in conjunction with the Trial, You agree to this charge. If You do not accept this charge, You must cancel Your Subscription before the end of the Trial.
3.1 - On request, We may also provide other services to Our Users such as (but without limitation to) training and formation ("Supplementary Services") as defined more in detail on the Website. The Supplementary Services are not included in the subscription and have to be purchased by a separate order made through the Account or by e-mail.
3.2 - Only Users with a valid subscription may order the Supplementary Services.
3.3 - These Terms become applicable to the Supplementary Services only after We have accepted Your order of the same. The Supplementary Services may also be subject to additional terms and conditions that You have to accept in connection with Your order.
4.1.1 - All the prices of the Service and the Supplementary Services are determined in accordance with Our price list (the "Price List").
4.1.2 - The fee is paid in advance for the invoicing period You have chosen. You may change the invoicing period through Your Account's settings. The new invoicing period shall take effect after Your current invoicing period ends.
4.2.1 - The subscription fee of the Service is invoiced and sent to You electronically and shall be paid on the due date of the invoice at the latest.
4.2.2 - In the event the subscription fee is not paid by the due date, We may disable the access to Your Account. In such case, You are not entitled to receive any remuneration or compensation for the time the access to Your Account is disabled.
4.2.3 - If the subscription fee is not paid within 14 days as from the reminder We have sent to You of the outstanding / unpaid invoice LoungeUp shall have the right to cancel Your subscription and disable the access to Your Account permanently.
5.1 - The Service subscription shall be renewed automatically at the end of each invoicing period, unless You cancel the subscription 14 days before the end of the current invoicing period at the latest.
5.2 - LoungeUp shall have the right to cancel Your Service subscription any time and for any reason including upon any breach of these Terms by You, unless the breach is remediable and it's remedied within the time limit set at the sole discretion of LoungeUp.
5.3 - Any cancellation of the Service subscription will take effect the day after Your current invoicing period ends unless We cancel Your subscription due to Your breach of these Terms in which case the cancellation takes effect immediately upon Your breach or, if We have set a time limit for the remediation of the breach and the breach is not remedied within that time limit, on the day following the expiration date of the time limit.
5.4 - If Your subscription is cancelled You are not entitled to receive any refund for the subscription fees You have already paid to Us or other compensation unless We cancel Your subscription for any other reason than Your breach of these Terms.
5.5 - If Your Service subscription is cancelled You shall, upon Your written request, entitled to request and receive a copy of the data and other contents of Your Account from Our server. The data shall be delivered to You in an electronic form that is commonly in use. LoungeUp is not responsible for storing Your data for longer than 14 days after the cancellation of Your subscription after which all Your data will be deleted from Our servers and destroyed.
LoungeUp has the right to make changes to the contents, scope or price of the Service, Supplementary Services and these Terms. If You do not accept the changes in the Service or these terms You may cancel Your subscription. By continuing to use the Service after the change(s), You accept the change.
7.1 - You shall use the Service and the Supplementary Services in conformity with these Terms and French legislation and in a commonly acceptable manner. By agreeing to these Terms, You represent and warrant that You abide by these Terms and that Your Account is used for appropriate and legal purposes only.
7.2 - "Intellectual Property Rights" includes but not limited to patents, trademarks, service marks, design rights and database rights (whether capable of registration or otherwise), applications for any of the foregoing, copyright (including copyright in source code, object code, procedures manuals and related documentation), know-how, trade or business names, domain names and other similar rights or obligations, whether capable of registration or not in any country (including but not limited to France). All Intellectual Property Rights and the title to the data and other contents of Your Account shall belong to either You or a third-party licensor. You are liable for the data and other contents of Your Account and for ensuring that the contents and data do not infringe any third-party rights or violate any French legislation in force at the time. LoungeUp assumes no liability for the contents of any web pages hosted by its servers nor for any infringements of a third party right therein.
7.3 - The distribution or publishing of any indecent, immoral, illegal or misleading or other harmful data or other content or content that is against good manners is prohibited on the web pages hosted by Our servers. Any use of the Service or distribution of such data or content that may cause damage or harm to LoungeUp, the Service or other Users is prohibited and shall be regarded as a breach of these Terms. We may, in Our sole discretion, determine whether Your use of the Service constitutes a breach of these Terms.
7.4 - We shall, without giving prior notice to the User, have the right to remove any User data or other contents that We consider to be against these Terms and the Account in which such data or contents is distributed. As an alternative, We may give You a warning of the misuse and ask You to remove such data or content.
7.5 - You shall be responsible for ensuring that Your user name and password to Your Account are maintained diligently and that they are not disclosed to third parties. Any use of the Service by Your user name and password shall be on Your responsibility. LoungeUp assumes no liability for any damages caused to You by the misuse of Your account and password.
7.6 - In the event that Your password is revealed to a third party or if You suspect misuse of Your user name or password You should inform Us about the misuse without delay. Your liability for the use of the Service by Your user name and password shall expire only after We have received Your notice of the misuse.
7.7 - You shall defend, indemnify and hold harmless LoungeUp against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the usage of the Service.
8.1 - In order to perform necessary installation, change or maintenance work of the Service or servers LoungeUp shall have the right to suspend the delivery of the Service for a reasonable period of time. We inform the Users of the planned maintenance breaks in advance on the Website as early as possible.
8.2 - LoungeUp shall have the right to deny the Users access to the Service without first hearing the User, if there is a suspicion that the User burdens or uses the Service in such manner as to jeopardize the delivery of the Service to other users. We shall inform You of the reasons for such denial without undue delay.
9.2 - LoungeUp does not warrant, endorse, guarantee or assume responsibility for any Third Party Applications, Third Party Application content or any other product or service advertised or offered by a third party or any hyperlinked website, or featured in any banner or other advertising on the Website or through the Service. You understand and agree that LoungeUp is not responsible or liable for any transaction between You and third-party providers of Third Party Applications or products or services advertised on the Website or through the Service. No advice or information whether oral or in writing obtained by You from the Service or the Website shall create any warranty on behalf of LoungeUp in this regard.
10.1 - In addition to what is stated in other provisions of these Terms, LoungeUp's liability for damages is limited as set out in this section 10.
10.2 - LoungeUp shall perform the Service and the Supplementary Services diligently and professionally. Notwithstanding the foregoing, the Service and Supplementary Services are provided "as is" without warranty of any kind, either express or implied, including without limitation, any warranty of merchantability and fitness for a particular purpose. LoungeUp assumes no responsibility for the accuracy or application of or errors or omissions in the Service or Supplementary Services.
10.3 - LoungeUp does not warrant that the Service functions uninterruptedly or error free at all times. LoungeUp assumes no liability for any interruptions or problems in the Service due to e.g. (but without limitation to) an internet connection break or any other temporary technical complication or any acts of God or other delays or damages that are caused by third parties, events or circumstances that are out of LoungeUp's control and that LoungeUp couldn't have foreseen and that could not reasonably been prevented or overcome (force majeure).
10.4 - In no event shall LoungeUp be liable for any direct, indirect, special, incidental or consequential damages arising out of the Service or Supplementary Services or inability to use the Service or Supplementary Services, even if LoungeUp has been advised of the likelihood of such damages occurring.
10.5 - LoungeUp shall not be liable for any loss, damages or costs, arising out of, but not limited to, lost profits or revenue, loss of use of the data and/or the service, loss of data or equipment, the costs of recovering any software, media, data or equipment, the cost of substitute service, media, data or equipment or claims by third parties, or other similar costs relating to the Service or the Supplementary Services.
10.6 - In no event shall LoungeUp be liable to You for any more than the total amounts You have paid to LoungeUp for the Service during the 3 months preceding Our breach or the amount paid for the Supplementary service You have ordered.
11.1 – The following definitions apply in this Section 11 (unless the context requiresotherwise):
"Data Protection Legislation" means the Data Protection Acts 1988 to 2018(as may be amended from time to time), and as of 25 May 2018, the GeneralData Protection Regulation (EU) 2016/679 (the "GDPR");
"Security Breach" the accidental or unlawful destruction, loss, alternation,unauthorised disclosure or, or access to the User Personal Data (definedbelow in Section 11.2); and
"controller", "data subject", "personal data", "processing", "processor" and "supervisory authority" shall have the meanings given to those terms inthe GDPR.
11.2 - In respect of any personal data received by LoungeUp from or on behalfof User in connection with the performance of the Service and SupplementaryServices (as applicable) under these Terms ("User Personal Data"), both LoungeUpand User acknowledge that the User shall be the controller and LoungeUpshall be a processor.
11.3 - User, as the controller or primary processor (as applicable), is solelyresponsible for establishing the lawful basis for the processing of User Personal Databy LoungeUp under these Terms and will ensure that it has all necessaryappropriate consents and notices in place to enable lawful transfer of the UserPersonal Data to LoungeUp for the duration and purposes of these Terms andthe delivery of the Service or Supplementary Services (as applicable). User, as thecontroller, is further solely responsible for the accuracy and quality of the UserPersonal Data.
11.4 - To the extent that LoungeUp processes User Personal Data pursuant tothese Terms, LoungeUp shall:
11.4.1 process the User Personal Data in accordance with these Terms, thisSection 11 and the instructions of the User (unless LoungeUp isrequired to process the User Personal Data by applicable European Union("EU") or EU Member State law in which case LoungeUp shall notify theUser of that legal requirement before such transfer or access occurs or ispermitted, unless that law prohibits such notification on important grounds ofpublic interest);
11.4.2 ensure that all personnel authorized to process the User Personal Dataare party to confidentiality obligations in respect of the User Personal Data;
11.4.3 cooperate as reasonably requested by the User (at the User's soleexpense):
11.4.4 notify the User if LoungeUp receives a request from a datasubject to have access to that data subject’s personal data. LoungeUpshall not respond directly to such data subject unless it is instructed to do soby the User;
11.4.5 implement and maintain appropriate technical and organisationalmeasures in place to ensure the security of the User Personal Data taking intoaccount: (i) the state of the art; (ii) the costs of implementation; (iii) the nature,scope, context and purposes of the processing; and (iv) the inherent risk of theprocessing activities to data subjects;
11.4.6 notify the User without undue delay after becoming aware of anySecurity Breach; and
11.4.7 cooperate with the Data Protection Commission (or, to the extentreasonably required by the User, any other supervisory authority) in theperformance of its tasks where required.
11.5 - The User hereby agrees to the transfer of User Personal Data processed underthis Section 11 outside of the EU PROVIDED that in effecting any internationaltransfer of User Personal Data, LoungeUp shall ensure that:
11.5.1 it has provided appropriate safeguards in relation to the transfer whichmay include Privacy Shield certification (in the case of US transferees) or EUstandard contractual clauses. The User hereby appoints LoungeUp asits agent for the purpose of entering into any EU standard contractual clausesin the context of providing the Service or Supplementary Services (asapplicable); and
11.5.2 data subjects continue to have enforceable rights and effective legalremedies following the transfer.
11.6 - The User hereby authorises LoungeUp to use third parties ("sub-processors") to provide the Service or Supplementary Services (as applicable)provided:
11.6.1 LoungeUp shall notify the User in advance of any proposed useof a sub-processor, and any replacement or addition to them and the Usershall have the right to object on reasonable grounds to the use of or change toany sub-processor within 14 days of User notifying the User of the change. Inthe event of the User raising such an objection, LoungeUp mayterminate part or all of the Service or Supplementary Service (as applicable)on 14 days' notice;
11.6.2 in engaging any sub-processor LoungeUp agrees adequate dataprotection arrangements that are in all material respects similar to those setout in this Section 11; and
11.6.3 LoungeUp shall at all times remain liable for the acts andomissions of any sub-processor as if such acts and omissions were those ofLoungeUp.
11.6.4 For the purpose of this Section 11.6, the User consents to the use ofthe sub-processors listed as follows:
|Mailgun Technologies, Inc. (Mailgun)||Infrastructure to deliver emails|
|Message Systems, Inc. (SparkPost)||Infrastructure to deliver emails|
|Zoho Corporation B.V.||Invoicing, subscription management, customer support|
|Chargebee Inc (Chargebee)||Invoicing & subscription management|
|Stripe, Inc. (Stripe)||Payment provider (Credit card)|
|GoCardless Ltd (GoCardless)||Payment provider (SEPA Direct Debit)|
11.7 – LoungeUp shall make available all information reasonably requested bythe User to satisfy itself that LoungeUp is complying with its data protectionobligations under this Section 11. User (and its third-party representatives) shall bepermitted to audit LoungeUp during normal business hours PROVIDED THAT:
11.7.1 User shall provide at least 14 days' prior written notice of its intention tocarry out an audit;
11.7.2 User shall ensure (and shall procure that each of its representatives)minimise the disruption to LoungeUp's business in the course of such anaudit or inspection;
11.7.3 all expenses incurred by LoungeUp shall be promptly dischargedby User;
11.7.4 LoungeUp may request that any third party representativeperforming an audit on behalf of User shall provide written confidentialityundertakings to the reasonable satisfaction of LoungeUp and LoungeUpshall be entitled to refuse access to any of its premises or records untilsuch time as it has received such undertakings;
11.7.5 LoungeUp need not contribute or allow for an inspection or auditmore than once in any calendar year, except for any additional audits orinspections which are required or requested be carried out in connection withthe Data Protection Laws or a supervisory authority;
11.7.6 LoungeUp may object in writing to an auditor or representativemandated by the User if the auditor or representative is, in LoungeUp'sreasonable opinion, not suitably qualified or independent, a competitor ofLoungeUp, or otherwise manifestly unsuitable (in the event of such anobjection, the User shall appoint another auditor or conduct the audit itself);and
11.7.7 nothing in this Section 11 shall entitle User to access or inspect anyrecords which contain information relating to any other client, user or customerof LoungeUp and LoungeUp shall be entitled to restrict or preventaccess to any part of its premises which it considers in its sole discretion couldcompromise the security of any information or data relating to such otherclients, users or customers.
11.8 - LoungeUp will inform User if it comes to its attention that any instructionsreceived in respect of Section 11.7 infringe the provisions of any applicable EU or EUMember State data protection law. Notwithstanding the foregoing, LoungeUpshall have no obligation to review the lawfulness of any instruction received fromUser.
11.9 - Following termination of the Service or Supplementary Services (as applicable),LoungeUp shall, at the written request and at the cost of the User, delete or returnUser Personal Data and copies thereof to the User save to the extent that LoungeUpis required by applicable law to retain the User Personal Data. LoungeUpis not responsible for storing Your data for longer than 30 days after thecancellation of Your subscription after which all Your data will be deleted from Ourservers and destroyed.
These Terms become effective, when You subscribe / register to the Service and establish the Account and accept these Terms and shall continue to apply to You until Your subscription is cancelled, except for the provision on disclaimer of warranty and limitation of liability in Section 10 herein.
13.1 - LoungeUp shall have the right to use the User's Account for reference purposes in its own marketing unless expressly denied in writing by the User.
13.2 - No delay by LoungeUp in enforcing the provisions of these Terms shall prejudice or restrict its rights nor shall any waiver of rights operate as a waiver of any subsequent breach.
13.3 - If any provision of these Terms or the application of any such provision would be invalid, void or unenforceable and/or should be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of these Terms shall remain in full force and effect to the maximum extent permissible by the applicable law. Furthermore, You acknowledge that You have not relied on any representation, undertaking or promise given by Us or implied from anything said or written in negotiations beforehand that do not form part of the subscription or these Terms.
13.4 - These Terms are made, executed and delivered in France and any controversy arising hereunder or relation to these Terms shall be governed by and construed in accordance with the laws of France.
13.5 - All disputes arising in connection with these Terms, performance, breach, existence or validity shall be resolved in the Commercial Court of Paris, and the language of the proceeding shall be French.