HERAW Enterprise Terms and Conditions of Sale and Use
PREAMBLE
HE NOVATION, a French simplified joint-stock company (société par actions simplifiée) with share capital of EUR 2,001,000.00, having its registered office at 55 rue de la Boétie, 75008 Paris, registered with the Paris Trade and Companies Register under number 841 448 822 (hereinafter “HE NOVATION” or the “Publisher”), develops and operates the SaaS software solution known as HERAW, accessible in particular through www.heraw.com, which enables the sharing, management, exchange and collaborative annotation of audiovisual and visual content.
These General Terms and Conditions of Sale and Use (hereinafter the “Terms”) are intended to define the terms and conditions under which HE NOVATION makes HERAW and the associated Services available to its professional customers (hereinafter individually or collectively the “Customer(s)”).
The Terms constitute the sole and exclusive contractual basis of the commercial relationship between HE NOVATION and the Customer. They prevail over any document, general terms and conditions of purchase, or conflicting provision issued by the Customer, unless expressly waived in writing and signed by a duly authorised representative of HE NOVATION.
ARTICLE 1. DEFINITIONS
Defect: means any bug, error, failure, anomaly, malfunction, incident, blocking issue, design defect and, more generally, any non-compliance of the Software with the Specifications, identified in the Software operating environment and preventing the normal use and/or operation of all or part of the Software.
Defects are classified into three levels of decreasing severity:
· Blocking Defect means a Software Defect that renders a critical feature inoperable or causes a loss of Data/Content integrity.
· Major Defect means a Software Defect that materially limits or restricts use of the Software, without such limitations or restrictions being sufficiently serious for the Defect to be classified as Blocking.
· Minor Defect means a Defect that is neither Blocking nor Major.
Order Form: means any quotation, purchase order, online subscription form or equivalent document, signed, electronically validated or accepted by the Customer, specifying the Subscriptions and Modules subscribed for, the Price and the applicable special terms.
Storage Capacity: means the dedicated storage space allocated to a specific Workspace on the Servers for retaining the relevant Customer’s Content, according to the number of gigabytes or terabytes of storage stated in the Order Form(s).
Terms: means these General Terms and Conditions of Sale and Use, including their Appendices, which alone apply to the relationship between the Parties.
Customer: means any legal entity or sole trader acting strictly for professional purposes that has subscribed for one or more Subscription(s).
Access Credentials: means the username (“login”) and connection password associated with a HERAW Account and entered by the User in HERAW when the account is created.
Workspace Manager Account: means a HERAW Account to which a Standard Subscription is attached and which, subject to authorisation and activation by the Customer, the Operational Manager or any person appointed by them, provides access to and use of an Administration Console.
HERAW Account: means the named account allocated to a User, allowing that User to access HERAW using their Access Credentials, and to which a subscription is attached.
Administration Console: means the online tool accessible through a Workspace Manager Account, designed to provide access to administration functions made available to a Workspace Manager, such as creating/activating HERAW Accounts, managing storage and managing security settings.
Content: means any data, file, image, audiovisual sequence, comment or other item uploaded, transmitted or generated by a User on HERAW, excluding Personal Data governed by Article 14.
Agreement: means the contractual framework formed by the Terms, their Appendices and the applicable Order Form.
AI-Generated Content: means any output (text, transcript, summary, suggestion, tag or other production) generated by an Artificial Intelligence Feature from Content.
Artificial Intelligence Feature (or “AI”): means any HERAW feature relying on artificial intelligence, machine-learning or automated language-processing techniques, offered as an option or as standard, as described in Article 12.
Data or Personal Data: means any information supplied, generated, transmitted or displayed on or within HERAW by a User that relates to an identified or identifiable natural person (commonly referred to as a “data subject”). An “identifiable natural person” is a natural person who may be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier, or one or more factors specific to that person’s physical, physiological, genetic, mental, economic, cultural or social identity.
Workspace Manager: means a User holding a Standard Licence to whom the Customer or an Operational Manager has granted access rights to an Administration Console, enabling that User, within the Workspace they manage, to activate and allocate subscriptions and manage HERAW Accounts in the name and on behalf of the Customer.
HERAW or Solution: means the application service (or Software), accessible at www.heraw.com and provided by HE NOVATION in SaaS mode, enabling the Customer and Users to use the Services.
Business Hours: means the period from 9:00 a.m. to 6:00 p.m. Paris time on each Business Day.
HERAW: means the software developed, published and operated by HE NOVATION and accessible in SaaS mode.
Business Day: means any day from Monday to Friday, excluding statutory public holidays in France.
Software: means the HERAW software developed and supplied by HE NOVATION to the Customer in SaaS mode, and in particular the Services associated with HERAW.
Updates: means improvements made to the Software and decided by HE NOVATION in light of technological, legal or functional developments, provided that such adaptations or developments do not require a substantial part of the Software to be rewritten. Updates also include the correction of any Defects. Updates are provided in accordance with Appendix 1.
Module: means a set of HERAW features grouped within a specified commercial offering (including DAM, PROJECTS and CALENDAR), subscribed for by the Customer and integrated into a Workspace.
User Workstation: means the Customer’s hardware and IT devices enabling access to the Service. User Workstations must comply with the Technical Requirements.
Price: means the amounts payable by the Customer in consideration for provision of the Service, as set out in the Order Form and/or HERAW’s then-current price list.
Technical Requirements: means the latest version of the list of hardware and IT device specifications recommended by HE NOVATION and to be implemented and complied with by the Customer in order to access and use HERAW. The Technical Requirements may change. The latest version must be communicated to the Customer in advance and is also available at any time on the HERAW website (http://www.heraw.com/fr/cgv/) or at any other website address communicated by HE NOVATION. The Customer is responsible for upgrading its User Workstations in line with changes to the Technical Requirements previously communicated to it.
Operational Manager (hereinafter “RESOP”): means the natural person designated by the Customer in the Order Form or by email, to whom a Standard Subscription and a Workspace Manager Account are automatically allocated and to whom the Customer delegates all operational decisions relating to the technical, operational and functional performance of the Agreement, including the decision to grant rights to Workspace Manager Accounts.
Role: means one of the various roles granted to a User in order to structure collaboration and assign responsibilities. Roles are defined at project level and directly affect permissions for folders and files within the project. The roles that may be granted on each project are: Administrator, Contributor, Approver and Viewer. Permissions assigned according to role may be consulted on the HERAW knowledge page concerning roles and permissions. HERAW may change, modify, update or discontinue the number and titles of roles and the scope of permissions at any time, without liability to the Customer or any other person.
Server: means the server(s) dedicated to HE NOVATION on which a subcontractor hosts HE NOVATION’s IT and telecommunications infrastructure, together with the Data and Content, where the Customer elects for such Data and Content to be hosted on a server managed by HE NOVATION.
Service(s): means all technical components and application features of the Software made available to the Customer under the terms and within the limits set out herein and as described in Article 6 “Description of the Service”, together with maintenance and hosting services.
Third Party: means any natural or legal person and any entity other than the Customer and the Users.
User: means any natural person authorised by the Customer to hold a HERAW Account.
Workspace: means the Customer-specific HERAW environment, created with the Modules specifically stated in the Order Form, in which all projects of the Customer and its associated Users are stored, and which is managed by one or more Workspace Manager(s).
ARTICLE 2. PURPOSE AND SCOPE
The purpose of these Terms is to define the conditions under which HE NOVATION grants the Customer a right to access and use HERAW and the associated Services in consideration for payment of the Price.
The Terms apply, without restriction or reservation, to any subscription to the Service by a professional Customer, to the exclusion of any other terms, including the Customer’s general terms and conditions of purchase, which shall in all circumstances be unenforceable against HE NOVATION even if HE NOVATION was aware of them.
HE NOVATION reserves the right to amend these Terms at any time. The applicable Terms are those in force on the date on which the initial Order Form is signed. However, upon renewal of the Agreement, the version of the Terms published on HE NOVATION’s website on the renewal date automatically replaces the previous version, unless the Customer objects under the conditions set out in Article 5.3.
ARTICLE 3. ACCEPTANCE OF THE TERMS - ENFORCEABILITY
The Customer acknowledges that, before placing any order, it received a copy of these Terms, read them and accepted them without reservation. Signing or electronically validating an Order Form constitutes full and complete acceptance of these Terms.
Any order placed by the Customer, including through an online subscription form, implies unreserved acceptance of these Terms, which prevail over any other communication or document, regardless of its nature or medium, previously issued by the Customer.
Electronic acceptance (tick-box, electronic signature or validation of an online form) has the same evidentiary value between the Parties as a paper-based agreement, in accordance with Articles 1366 and 1367 of the French Civil Code.
ARTICLE 4. ORDER AND EFFECTIVE DATE
Order Form
Each subscription to the Service gives rise to an Order Form specifying, in particular, the Customer’s identity, the Modules subscribed for, the number of HERAW Accounts, the Storage Capacity, the Price and the billing frequency.
The Agreement takes effect on the date on which the Customer signs or electronically validates the Order Form (the “Effective Date”), subject, where applicable, to payment of any deposit due.
Order of precedence
In the event of any conflict between the provisions of an Order Form and these Terms, the Terms prevail unless the Order Form expressly and unambiguously derogates from a specifically identified article of the Terms and that derogation is accepted in writing by an authorised representative of HE NOVATION.
ARTICLE 5. TERM AND RENEWAL
Initial term
The Agreement is entered into for an initial term of twelve (12) months from the Effective Date, unless a different term is expressly stated in the Order Form.
Automatic renewal
At the end of the initial term and each renewal term, the Agreement is automatically renewed for successive twelve (12)-month periods unless either Party gives notice in accordance with the conditions below.
Notice of non-renewal by the Customer
A Customer wishing to prevent automatic renewal must notify HE NOVATION of its decision by registered letter with acknowledgement of receipt, subject to at least three (3) months’ notice before the end of the current contractual period. If that notice period is not complied with, the Agreement shall be deemed automatically renewed and the Customer shall remain liable for the Price applicable to the new period.
Non-renewal by HE NOVATION
HE NOVATION may, at any time and without having to state reasons, notify the Customer of its intention not to renew the Agreement, subject to one (1) month’s notice before the end of the current period, without giving rise to any right to compensation for the Customer.
Price adjustments
HE NOVATION may revise its pricing terms upon each renewal and during performance of the Agreement in the event of changes to its offering, operating costs (including hosting, third-party licences and inflation) or Modules. Any adjustment shall be notified to the Customer by email at least thirty (30) days before it takes effect. Unless the Customer submits a written objection within ten (10) days following that notification, the new pricing terms shall be deemed accepted. If the Customer objects within that period, it may terminate the Agreement with effect from the end of the current period, without any entitlement to reimbursement of amounts already paid. The annual price adjustment provided for in Article 16 of these Terms is not considered a pricing revision for the purposes of this paragraph.
ARTICLE 6. DESCRIPTION OF THE SERVICE
Overview
HE NOVATION provides the Customer, on a non-exclusive basis and for the term of the Agreement, with access to HERAW and the Modules subscribed for in the Order Form, organised within one or more Workspace(s).
The available Modules include DAM, PROJECTS and CALENDAR, together with any bundled offering (“One Studio”) or any new Module that HE NOVATION may market. The Customer acknowledges having been informed of the features of each Module before placing its order.
Development of the Service
HE NOVATION freely determines, at its sole discretion, the policy for developing, industrialising and sizing HERAW, in particular in light of technological, regulatory or market developments. HE NOVATION may at any time add, modify, develop or withdraw a feature, provided that it does not materially degrade, without consideration, the essential features forming the subject matter of the Module subscribed for by the Customer. Withdrawal of ancillary features, redesign of the interface, or replacement of a feature by an equivalent feature does not constitute a material degradation and does not entitle the Customer to any compensation or Price reduction.
HE NOVATION may temporarily suspend all or part of the Service for maintenance, updates or technical improvements under the conditions set out in Article 9.
ARTICLE 7. ACCESS TO THE SERVICE AND ACCOUNTS
Access arrangements
The Service is accessible twenty-four (24) hours a day, seven (7) days a week, except during scheduled or unscheduled maintenance and subject to the risks inherent in the Internet network, for which HE NOVATION cannot be held liable. The Customer shall be informed in advance of scheduled maintenance periods that cause a Service interruption.
The Customer manages, either directly or by delegating to an Operational Manager, allocation of the HERAW Accounts for which it has subscribed. It warrants the accuracy of the information supplied (surname, first name, professional email address and affiliated company) and undertakes to keep that information up to date.
Access Credentials
Access Credentials are personal, confidential and non-transferable. Each User is solely responsible for safeguarding them and ensuring strictly personal use. The Customer is responsible for any use of HERAW through its Users’ Access Credentials, including fraudulent use by a third party, unless a proven fault by HE NOVATION directly caused the compromise of those Access Credentials.
The Customer shall notify HE NOVATION without delay of any loss, theft or suspected compromise of Access Credentials. HE NOVATION may, as a precautionary measure and without prior notice or compensation, suspend any HERAW Account whose use appears abnormal or fraudulent. If Access Credentials are lost or stolen, the RESOP, acting through the User or Workspace Manager, shall use https://app.heraw.com/retrieve_password or email contact@heraw.com if the connection issue persists. HE NOVATION will then send the User a unique link by email enabling access to HERAW and amendment of the Access Credentials.
ARTICLE 8. CUSTOMER OBLIGATIONS AND USE OF THE SERVICE
Compliant use
The Customer uses the Service under its sole responsibility, direction and control. It undertakes to ensure compliance with these Terms by all its Users and is liable for any breach committed by them as if it had committed that breach itself.
The Customer is solely responsible for:
· securing its User Workstations, hardware, software and Internet connections, in particular against viruses, intrusion or unauthorised access;
· complying with, and updating in accordance with, the Technical Requirements published by HE NOVATION;
· selecting, subscribing for and financing its own connection and telecommunications resources;
· appointing an authorised contact person for dealings with HE NOVATION in connection with administration of the Service;
· using the identifiers or Access Credentials supplied to it in connection with performance of the Service and ensuring that no person not authorised by it has access to the Service;
· the lawfulness, relevance and compliance of the Content it transmits, hosts or distributes through HERAW;
· obtaining all rights, authorisations and consents necessary to use the Content it transmits, including in relation to intellectual-property rights and third-party rights.
The Customer may use the Administration Console to grant one or more Workspace Manager(s) rights to access the Workspace Manager Account and administer subscriptions and HERAW Accounts. The Customer is responsible for (a) maintaining the confidentiality of Workspace Manager Account passwords, (b) designating the individuals who may access a Workspace Manager Account, and (c) ensuring that all activities carried out through a Workspace Manager Account comply with this Agreement. HE NOVATION is not responsible for the internal management or administration of the Services and Content managed by the Customer.
The Customer undertakes to take reasonable measures to prevent any unauthorised use of the Services and to stop any abuse reported by HE NOVATION or detected by the Customer. The Customer must also promptly inform HE NOVATION if it becomes aware that HERAW is being accessed without authorisation or used abusively.
The Customer undertakes to respond to judicial or administrative requests from third parties seeking information concerning the Customer’s use of the Service, including a search warrant, court order, subpoena or any other judicial or administrative request. To the extent permitted by law or by the terms of the third-party request, HE NOVATION shall (a) promptly notify the Customer that it has received a third-party request, (b) comply with reasonable requests made by the Customer in connection with measures taken to challenge that request, and (c) provide the Customer with information or tools enabling it to respond. The Customer shall first endeavour to obtain the information required to respond itself and shall contact HE NOVATION only if it cannot reasonably obtain that information.
Prohibited uses
The Customer undertakes, for itself and all its Users, not to:
· resell, sublicense, rent, make available to a third party or otherwise commercially exploit all or part of the Service;
· decompile, disassemble, reverse engineer or attempt to decompile, disassemble or reverse engineer HERAW;
· develop a competing or substitute service using access to HERAW or information derived from it;
· mass-extract data from HERAW (“scraping”) or use automated means not authorised by HE NOVATION;
· transmit through HERAW any unlawful Content, Content infringing third-party rights, defamatory Content, Content contrary to public policy or accepted standards of morality, or any malicious program;
· use the Service for purposes unrelated to the Customer’s declared professional activity.
Any breach of these commitments entitles HE NOVATION to suspend access to the relevant HERAW Account immediately, without prior notice or compensation, without prejudice to its right to terminate the Agreement under Article 17 and seek compensation for its loss.
ARTICLE 9. MAINTENANCE AND SUPPORT
Maintenance
HE NOVATION shall, on a reasonable-endeavours basis, provide corrective maintenance for HERAW and its technical and functional development, the content and timetable of which are determined at HE NOVATION’s sole discretion.
Scheduled maintenance operations are, insofar as possible, carried out outside Business Hours and notified to the Customer with reasonable notice, which may be less than twenty-four (24) hours in the event of a security emergency. HE NOVATION may also perform unscheduled maintenance, particularly in the event of a technical or security emergency, without prior notice or compensation.
Support
HE NOVATION provides the Customer with a support service accessible by email at contact@heraw.com during Business Hours, subject to the indicative conditions and response times set out in Appendix 1. Those timeframes are treatment objectives and do not constitute a performance guarantee or, if exceeded, give rise to any penalty, compensation or Price reduction, unless expressly provided otherwise in an Order Form subscribing for an enhanced support option.
Support does not include User training, assistance with routine use of the Service, or resolution of incidents resulting from use that does not comply with the Terms, an unauthorised modification, integration with a third-party system not recommended by HE NOVATION, or a failure attributable to the Customer. Such services may be covered by a separate commercial offering.
Exclusions of liability
HE NOVATION shall not be liable for any failure to perform its maintenance or support obligations in the event of: the Customer’s refusal to cooperate in qualifying and/or resolving a Defect; non-compliant use of the Service; modification of the Service by the Customer or an unauthorised third party; breach by the Customer of its contractual obligations; failure of a third-party network or service not attributable to HE NOVATION; deliberate damage and/or sabotage by a Third Party unrelated to HE NOVATION (other than a service provider, supplier, subcontractor or any third party having a relationship with HE NOVATION); or Force Majeure.
ARTICLE 10. SERVICE LEVEL
HE NOVATION shall use reasonable resources consistent with customary SaaS-industry practices to ensure availability and continuity of the Service under the indicative conditions described in Appendix 1. HE NOVATION has, in particular, implemented a redundant system intended to provide uninterrupted service. These commitments are made on a reasonable-endeavours basis and not as an obligation to achieve a specific result.
The following are not counted as Service unavailability: scheduled or emergency maintenance periods notified in accordance with Article 9; unavailability resulting from the Internet network, the Customer’s connection, Force Majeure, failure of a hosting subcontractor, a cyberattack, or any event not attributable to HE NOVATION.
HE NOVATION implements a double backup of Data and Content, with an automatic backup whenever Content is added. If Content is deleted from a HERAW Account, HE NOVATION shall provide the relevant HERAW Account User with recovery of the deleted Data or Content for a maximum period of twenty-four (24) hours. In the event of loss of Content resulting from a failure attributable to HE NOVATION, HE NOVATION shall endeavour, within the limits of its technical capabilities and without guaranteeing a result, to restore it from the latest available backup.
HE NOVATION undertakes to implement effective controls designed to provide optimal assurance that the Services made available to the Customer process the Data and/or Content entrusted to them without risk of omission, alteration, distortion or any other form of Defect likely to impair the integrity of results generated by those Services; that processing complies with the legal regulations applicable to it; and that Data and processing remain accessible for external controls and audits that may be conducted. Processing integrity extends to every component of the system and every processing phase (data input, transmission, processing, storage and output). These controls consist of processing-consistency controls and the detection and management of Defects.
ARTICLE 11. SECURITY
HE NOVATION implements the technical and organisational security measures described in Appendix 2, consistent with the state of the art and proportionate to the risks, in order to preserve the availability, integrity and confidentiality of hosted Data and Content.
The Customer may request, as a paid option to be priced where applicable following a quotation issued by HE NOVATION and accepted by the Customer, that its Data be segregated from other data belonging to HE NOVATION or a Third Party.
HE NOVATION shall inform the Customer within a reasonable period of any security incident having a proven impact on the Customer’s Data or Content, in accordance with its applicable legal and regulatory obligations.
The Customer acknowledges that no information system is entirely free of risk and that HE NOVATION does not guarantee absolute protection against all intrusion, loss or unauthorised disclosure of Data or Content, subject to HE NOVATION complying with the security measures it has undertaken to implement.
ARTICLE 12. ARTIFICIAL INTELLIGENCE
Relevant features
HERAW may offer, as paid options or integrated into certain Modules, Artificial Intelligence Features including automatic transcription, summarisation, Content recognition or classification, search assistance, or any other feature based on machine-learning models (the “AI Features”).
Nature and limitations of AI Features
The Customer acknowledges and accepts that:
· AI Features rely on probabilistic models that may produce erroneous, incomplete, biased or inaccurate results (“AI-Generated Content”);
· AI-Generated Content is provided for information only and does not constitute advice, a recommendation or a guaranteed result. The Customer and its Users are responsible for checking its relevance, accuracy and suitability for their needs before any use, decision or distribution;
· HE NOVATION shall under no circumstances be liable for direct or indirect consequences resulting from the use, exploitation or distribution of AI-Generated Content by the Customer or a third party, including in the event of an error, omission, infringement of third-party rights or loss resulting from a decision made on the basis of such content;
· the Customer shall not use AI Features, solely on the basis of their output and without appropriate human intervention, to make a decision producing legal effects or similarly significantly affecting a person, or for any purpose classified as a high-risk AI system within the meaning of Regulation (EU) 2024/1689 (the “AI Act”).
Ownership and licence of AI-Generated Content
Subject to any pre-existing third-party rights and HE NOVATION’s rights in the underlying models, methods and technologies, AI-Generated Content produced from the Customer’s Content is made available to the Customer under the same licence conditions as those applicable to the source Content. This does not grant the Customer any intellectual-property right in the models, algorithms, weights or parameters used by HE NOVATION or its subcontractors to provide the AI Features, which remain the exclusive property of HE NOVATION or its third-party suppliers.
Use of data for improvement purposes
Unless the Customer subscribes for an express contractual exclusion option (“opt-out”), HE NOVATION and its technical subcontractors are authorised to use technical usage data, performance statistics and Content that has been anonymised or aggregated so that it can no longer identify the Customer, its Users or any relevant natural person, for the purposes of improving, training, testing and developing the AI Features and HERAW more generally. Such use shall comply with the GDPR and shall not entail disclosure of identifiable Content to any unauthorised third party.
Regulatory compliance
HE NOVATION endeavours to implement AI Features in compliance with the applicable provisions of Regulation (EU) 2024/1689 laying down harmonised rules on artificial intelligence, including transparency obligations (informing the User that they are interacting with an AI system or consulting AI-generated content) and human oversight. Where it qualifies as a deployer within the meaning of that Regulation, the Customer remains solely responsible for complying with the obligations applicable to its sector and to its use of AI Features vis-à-vis its own customers, employees or third parties.
ARTICLE 13. INTELLECTUAL PROPERTY
Right of use granted to the Customer
For the term of the Agreement and as a mere right of use, HE NOVATION grants the Customer a personal, non-exclusive, non-assignable, non-transferable and non-sublicensable right to access and use HERAW, strictly limited to the Customer’s own needs and those of its identified Users, to the exclusion of any other purpose.
The Customer undertakes not to give, transfer or sell to a Third Party the rights attached to a HERAW Account. Under no circumstances may the Customer make the Software and Service available to a Third Party.
The Agreement grants the Customer no ownership right or implied licence in HERAW, its components, source code, interfaces, documentation, databases, Artificial Intelligence models or any item developed by HE NOVATION, whether under the Agreement or before it.
HE NOVATION ownership
HE NOVATION is and remains the sole owner of all intellectual-property rights in HERAW, its proprietary content, its documentation and, more generally, the entire software and hardware infrastructure implemented to provide the Service, including specific developments, developments, improvements or adaptations made at the Customer’s request, unless expressly agreed otherwise in writing in the Order Form.
Licence to Customer Content
The Customer retains ownership of its Data and Content. It grants HE NOVATION a non-exclusive, royalty-free, worldwide licence for the term of the Agreement solely for the purposes of hosting, backing up, processing, displaying, compressing and transferring the Content as necessary to provide the Service, including, unless the opt-out referred to in Article 12.4 applies, for improving AI Features using anonymised or aggregated data.
The Customer bears any editorial responsibility arising from use of the Services. The Customer is solely responsible for the quality, lawfulness and relevance of the Data and Content it transmits for use of the Services and Software. It also warrants that it holds the intellectual-property rights required to use such Data and Content. Accordingly, HE NOVATION disclaims all liability where the Data and/or Content does not comply with laws and regulations or public policy.
The Customer shall indemnify HE NOVATION against any loss resulting from a claim brought against HE NOVATION by a third party for breach of this warranty. More generally, the Customer is solely responsible for Content and messages distributed and/or downloaded through HERAW.
Statistics and commercial references
HE NOVATION may mention the Customer’s name, corporate name and logo in its list of commercial references (website, commercial materials and public communications), unless the Customer objects in writing at any time by contacting contact@heraw.com. HE NOVATION undertakes to cease such use within a reasonable time after receiving the objection.
ARTICLE 14. PERSONAL DATA
Allocation of roles
For the provision of the Service, HE NOVATION acts as a processor, within the meaning of Article 28 of the GDPR, in relation to personal-data processing carried out by the Customer, acting as controller, through HERAW. The terms of such processing are governed by a data processing agreement (“DPA”) available on request, which prevails over any conflicting provision of these Terms for its specific subject matter.
For data processed by HE NOVATION as controller (including contact, billing and account-administration data), processing is carried out in accordance with HE NOVATION’s privacy policy available on its website.
HE NOVATION commitments
HE NOVATION undertakes to implement the appropriate technical and organisational measures referred to in Article 11, to process Personal Data only on the Customer’s documented instructions and solely for the purposes necessary to provide the Service, and to engage further processors offering sufficient guarantees under the conditions set out in the DPA.
Customer responsibility
The Customer remains solely responsible for the lawfulness of the processing it carries out through HERAW, for providing information to data subjects and, where applicable, obtaining their consent, and for accurately classifying the Personal Data it transmits. HE NOVATION performs no prior review of the lawfulness of Data transmitted by the Customer.
ARTICLE 15. WARRANTIES
Use warranty
HE NOVATION undertakes to provide the Service diligently and in accordance with industry standards, on a reasonable-endeavours basis. Unless mandatory law provides otherwise, HE NOVATION excludes all express or implied warranties other than those expressly stated herein, including any warranty of fitness for a particular Customer need, absence of Defects, uninterrupted continuity of the Service, or any expected commercial result from use of HERAW.
Warranty against infringement - intellectual property
HE NOVATION warrants the Customer against any action alleging infringement of a third party’s intellectual-property right directly by HERAW as supplied by HE NOVATION, provided that: (i) the Customer promptly notifies HE NOVATION by registered letter with acknowledgement of receipt of any express written claim or legal action alleging infringement of a patent or copyright; (ii) the Customer provides all useful information relating to that claim/action and allows HE NOVATION exclusive control of the defence and settlement of the dispute; (iii) the Customer uses its best efforts to cooperate with HE NOVATION in resolving the claim or proceedings; and (iv) the Customer makes no admission or settlement without HE NOVATION’s prior written consent.
If such an action is upheld by a final and binding court decision, or is likely to be upheld, HE NOVATION may, at its sole option, obtain for the Customer the right to continue using HERAW, modify or replace HERAW with an equivalent solution, or terminate the Agreement and reimburse the unused balance of any prepaid Price for the current period. This remedy is the Customer’s sole and exclusive remedy under this warranty, subject to the liability cap in Article 18.
As the lawful holder of all rights of use, modification and/or intellectual property relating to its Content, the Customer shall deal with and bear all consequences of any third-party claim and shall indemnify HE NOVATION against any recourse.
HE NOVATION shall (i) indemnify and hold the Customer harmless for all costs incurred in connection with any claim or proceedings alleging that the Software supplied by HE NOVATION infringes copyright, and (ii) bear all costs, including reasonable legal fees, expenses and damages, that the Customer is required to pay under a final and binding decision finding HE NOVATION liable for infringement by the Software forming the subject matter of this Agreement. However, the Customer shall be solely responsible for any settlement or compromise entered into without HE NOVATION’s prior written consent.
Regulatory compliance warranty for HERAW
HE NOVATION warrants that HERAW, as such, is designed in compliance with general regulations directly applicable to it as a SaaS software publisher established in France, including, to the extent required, data-protection and accessibility requirements. This warranty does not extend to compliance of the Customer’s use of the Service with regulations specific to the Customer’s sector, for which the Customer remains solely responsible.
This warranty does not apply where the alleged infringement results from (i) integration of HERAW with a third-party system or software not recommended by HE NOVATION, (ii) any modification or alteration of HERAW by the Customer or a third party acting on the Customer’s instructions without HE NOVATION’s authorisation, (iii) use not complying with the Agreement, or (iv) Content supplied by the Customer.
ARTICLE 16. PRICE AND BILLING TERMS
Price
In consideration for the Service, the Customer shall pay HE NOVATION the Price stated in the Order Form, exclusive of taxes. The Price shall be increased by VAT and any applicable tax at the rate in force on the billing date, which shall be borne exclusively by the Customer.
Annual price adjustment
On each anniversary date, HE NOVATION may carry out an annual adjustment of the prices applicable to the following contractual period. Each annual price adjustment shall be notified to the Customer by email at least thirty (30) days before it takes effect.
The stated amounts may therefore be adjusted annually, at HE NOVATION’s discretion, on the anniversary date of subscription to the Service, taking into account changes in the SYNTEC index, increased by up to five per cent (5%). The adjusted price is calculated using the following formula: P = P0 x (S1/S0).
P = adjusted price
P0 = initial amount for the first adjustment / cost of successive adjustments
S1 = value of the latest Syntec index on the adjustment date
S0 = value of the Syntec index in the year preceding the adjustment date
The annual adjustment may not exceed a cap of seven per cent (7%).
If the Syntec index ceases to exist and the Parties cannot agree, they agree to ask the court of first instance of the Paris Commercial Court to determine a new reference index.
Billing and payment
The Service is billed in advance, without discount, at the frequency stated in the Order Form (monthly, quarterly or annually). Payment shall be made by bank transfer or SEPA direct debit upon receipt of the invoice and no later than its due date.
Exceeding subscribed thresholds
Any use in excess of subscribed thresholds (number of HERAW Accounts, Storage Capacity or volume of use of AI Features) is automatically billed at HE NOVATION’s then-current rate, without a prior quotation being required. The Customer shall be informed after the event of the excess use and its pricing impact.
Late payment
Any amount not paid when due shall automatically bear interest, without prior formal notice, at the statutory interest rate applicable to professionals plus ten (10) percentage points, calculated daily from the day following the due date until payment in full. In accordance with Article L. 441-10 of the French Commercial Code, a fixed recovery fee of forty (40) euros is automatically payable, without prejudice to additional compensation upon evidence if the costs incurred exceed that amount.
Any failure to pay on the due date entitles HE NOVATION, eight (8) days after a simple formal notice by email has remained without effect, to suspend access to the Service, without prejudice to its right to terminate the Agreement in accordance with Article 17 and demand payment of all amounts remaining due for the current contractual period, including amounts not yet due, which shall become immediately payable as a penalty clause.
ARTICLE 17. TERMINATION AND SUSPENSION
Termination for breach
If the Customer breaches any of its obligations, including failure to pay the Price, HE NOVATION may automatically terminate the Agreement without court intervention eight (8) days after a formal notice sent by email or registered letter has remained without effect, without prejudice to any damages.
If HE NOVATION breaches an essential obligation under the Agreement, the Customer shall send HE NOVATION a formal notice by registered letter with acknowledgement of receipt requiring it to perform that obligation within fifteen (15) days and stating that, failing such performance, the Customer will be entitled to terminate the Agreement. If the breach continues after that period, the Customer may notify HE NOVATION by registered letter with acknowledgement of receipt that the Agreement is automatically terminated, specifying the reasons for termination.
Effects of termination
On the date of termination or expiry of the Agreement, whatever the cause, the Customer’s Access Credentials shall be disabled and access to HERAW Accounts and Content shall be suspended.
The Customer has fifteen (15) days from the end of the contractual relationship to request recovery of its Content in writing, using the standard technical arrangements offered by HE NOVATION. After that period, HE NOVATION is no longer required to retain the Content and may permanently delete it without the Customer being entitled to any compensation.
At the end of a period of thirty (30) days following the Customer’s request to recover the Content, HE NOVATION shall no longer be responsible for storing and preserving all Content of the Customer and Users and may destroy it without the Customer being entitled to claim any compensation.
Each Party undertakes to cooperate actively with the other Party in order to facilitate recovery of the Customer’s Content.
Any reversibility assistance extending beyond the standard export offered by HE NOVATION, including a specific format, high volume or dedicated support, shall be subject to a separate quotation payable in advance by the Customer.
Termination of the Agreement, whatever the cause, does not entitle the Customer to reimbursement of amounts already paid for the current contractual period, except where termination results from a breach exclusively attributable to HE NOVATION and duly established, in which case reimbursement is limited pro rata to the unperformed period and remains subject to the cap set out in Article 18.
ARTICLE 18. LIABILITY
Principle
The Customer is solely responsible for use of the Service by itself and its Users, the Content it hosts, transmits or distributes, and protection of its own computer equipment.
HE NOVATION may only be held liable in the event of proven fault in performing obligations expressly stated herein, to the exclusion of any implied obligation.
Exclusions
Under no circumstances shall HE NOVATION be liable for indirect loss, including loss of revenue, profit, customers, reputation, opportunity or operations, commercial loss, or any action brought by a third party against the Customer, whatever the cause, all such heads of loss being deemed indirect and excluded from compensation between the Parties.
HE NOVATION shall furthermore not be liable for loss resulting from Force Majeure; failure of the Internet network or telecommunications operators; non-compliant use of the Service by the Customer; integration with a third-party system not recommended by HE NOVATION; Content supplied by the Customer; or AI-Generated Content under the conditions set out in Article 12.
Liability cap
In all circumstances, HE NOVATION’s aggregate liability for all loss, whether contractual, tortious or otherwise, arising out of or in connection with the Agreement, is capped, for all claims relating to the same annual contractual period, at the total amount excluding tax actually paid by the Customer to HE NOVATION during the twelve (12) months preceding the event giving rise to the loss. This is an aggregate cap and not a cap per event.
This cap also applies, without exception, to the warranty against infringement referred to in Article 15.
Limitation period
Any action by the Customer against HE NOVATION must, on pain of being time-barred, be brought within three (3) months from the event giving rise to the alleged loss, or from its discovery if later.
ARTICLE 19. INDEMNIFICATION
The Customer shall indemnify and hold HE NOVATION harmless against any third-party claim, action or judgment resulting from: (i) Content transmitted, hosted or distributed by the Customer or its Users; (ii) use of the Service that does not comply with these Terms; or (iii) breach by the Customer of a third party’s rights, including intellectual-property or data-protection rights. This indemnity covers all financial consequences, including reasonable defence costs incurred by HE NOVATION.
Any indemnification payable by HE NOVATION under the Agreement is in all circumstances limited to that provided for in Article 15 (warranty against infringement) and Article 18 (liability cap), to the exclusion of any other general indemnification obligation on HE NOVATION.
ARTICLE 20. INSURANCE
HE NOVATION represents that it has taken out professional liability insurance and cyber-risk insurance with a reputable and solvent insurer, covering the financial consequences of its professional civil liability in connection with the Service. A certificate may be provided to the Customer upon written request.
The Customer represents that it has taken out, or undertakes to take out, professional liability insurance appropriate to its activity and covering, where applicable, the consequences of its use of the Service.
ARTICLE 21. CONFIDENTIALITY
Each Party undertakes to keep strictly confidential all confidential information received from the other Party in connection with performance of the Agreement, to disclose it only to employees, service providers or advisers who need to know it and are bound by a confidentiality obligation at least equivalent to this one, and to use it solely for the purposes of performing the Agreement.
This obligation does not apply to information that: enters the public domain without fault by the receiving Party; is independently developed by that Party; was already known to it before disclosure; is lawfully received from a third party not bound by a confidentiality obligation; or must be disclosed by law or a competent authority, provided that, to the extent permitted, the relevant Party is informed in advance.
This obligation remains in force throughout the term of the Agreement and for three (3) years following its expiry.
The Parties further undertake to ensure compliance with these provisions by their staff and by any agent or third party involved in any capacity in connection with the Agreement.
ARTICLE 22. FORCE MAJEURE
Force Majeure means any event beyond a Party’s reasonable control, unforeseeable when the Agreement was entered into and whose effects cannot be avoided by appropriate measures, within the meaning of Article 1218 of the French Civil Code, including, without limitation: natural disaster, epidemic or pandemic, general or sector-wide strike, decision of a public authority, major failure or unavailability of a cloud-infrastructure or third-party hosting provider, cyberattack, or widespread interruption of a telecommunications or electricity network not attributable to HE NOVATION.
The affected Party shall inform the other Party without delay. The affected obligations shall be suspended for the duration of the event, without compensation or penalty. If the impediment continues for more than thirty (30) consecutive days, either Party may terminate the Agreement by registered letter with acknowledgement of receipt, without compensation on either side, subject to payment of amounts due for Services actually provided up to the termination date.
ARTICLE 23. COMPLIANCE - ANTI-CORRUPTION, SANCTIONS AND CSR
Each Party certifies that it complies with applicable laws and regulations relating to anti-corruption, anti-money laundering, economic sanctions and international embargoes, and warrants that none of its directors, employees or representatives acting on its behalf under the Agreement appears on a list of sanctioned persons or entities. Such laws and regulations include, without limitation, the French Law of 9 December 2016 on transparency, anti-corruption and economic modernisation (“Sapin II”), the U.S. Foreign Corrupt Practices Act of 19 December 1977 and the UK Bribery Act of 8 April 2010.
The Parties undertake to comply with applicable international social, environmental and human-rights standards, including those derived from the United Nations Global Compact and the fundamental conventions of the International Labour Organization, insofar as relevant to their respective activities.
HE NOVATION undertakes to promptly report to the Customer any risk of breach of these obligations and inform it of the corrective measures implemented. If the Customer raises a suspicion of breach, HE NOVATION shall cooperate transparently with the Customer to determine whether a breach has occurred and, where applicable, the related corrective measures.
ARTICLE 24. GENERAL PROVISIONS
Severability
The invalidity, lapse, lack of binding force or unenforceability of any provision of these Terms shall not result in the invalidity, lapse, lack of binding force or unenforceability of the other provisions, which shall remain fully effective. The Parties may, however, agree to replace any invalidated provision. If a provision of these Terms is held unlawful by a competent court, it shall be amended and interpreted by that court so as to achieve, to the fullest extent permitted by law, the objectives of the original provision, and the remaining provisions shall remain in force.
Entire agreement
These Terms constitute the entire agreement between the Parties relating to their subject matter and replace all prior oral or written agreements, exchanges or negotiations relating to the same subject matter. In the event of conflict between the contractual documents, the order of precedence is: (i) the Order Form, solely for provisions expressly derogating from these Terms and accepted in writing by HE NOVATION; (ii) these Terms; (iii) Appendix 1 “Service Levels”; and (iv) Appendix 2 “Security”.
No third-party beneficiaries
No third party is a beneficiary of this Agreement.
No waiver
A Party’s failure at any time to rely on any provision of these Terms shall not be interpreted as a waiver of its right to rely on that provision subsequently.
Assignment
HE NOVATION may freely assign all or part of the Agreement, including in connection with a merger, acquisition, restructuring, transfer of a business or activity, without the Customer’s prior consent, provided that the Customer is informed. The Customer may not assign all or part of the Agreement without HE NOVATION’s prior written consent.
Relationship of the Parties
The Parties are independent contractors. These Terms do not create any partnership, franchise, joint venture, employment, agency or fiduciary relationship between them.
Language
The Agreement is drafted in French. If it is translated into one or more languages, only the French version shall be binding between the Parties.
Electronic signature
The Parties agree that these Terms and the Order Form may be signed using an electronic-signature process, which gives the signed document the same evidentiary force as a paper document, in accordance with Articles 1366 and 1367 of the French Civil Code.
Governing law and jurisdiction
The validity, performance and interpretation of these Terms are governed by French law, excluding conflict-of-laws rules. Any dispute relating to the validity, interpretation or performance of these Terms that has not been resolved amicably within thirty (30) days shall fall within the exclusive jurisdiction of the Paris Commercial Court, including in the event of multiple defendants, summary proceedings or an incidental claim.
APPENDIX 1 - SERVICE LEVEL COMMITMENTS
Support
As part of Support and during Business Hours, HE NOVATION shall provide the Customer with technical, but not functional, assistance services in relation to aspects of the Software affected by a Defect.
Support is accessible through the maintenance centre during Business Hours.
HE NOVATION undertakes to provide the Customer with Support in French through its maintenance centre, by email at contact@heraw.com, in order to resolve any Defects affecting the Software.
As soon as a Defect is reported, the Customer shall provide HE NOVATION with all information required to qualify and correct the Defect or implement a workaround. HE NOVATION shall acknowledge receipt of that information as soon as possible. The timeframes set out in the service-level table below start once the Customer has provided that information.
HE NOVATION undertakes to provide Support services in accordance with the Service Levels set out in this Appendix 1 and, for each call or email, to identify and classify Defects.
The Customer may report a Defect to HE NOVATION’s maintenance centre at any time. However, HE NOVATION is deemed to have received the notification only during Business Hours. Accordingly, HE NOVATION is not required to respond to a Defect notification submitted outside Business Hours until the beginning of the next Business Day.
HE NOVATION does not provide User training through Support. Any training required by a User must be provided internally or through separately priced additional services.
Service levels
The timeframes in the table below are expressed in business hours and are indicative treatment objectives provided as part of a reasonable-endeavours obligation. They do not under any circumstances constitute a performance guarantee.
Defect | Acknowledgement | Workaround | Correction |
|---|---|---|---|
| Blocking | 1 hour | 5 hours | 2 Business Days |
| Major | 2 hours | 12 hours | 5 Business Days |
| Minor | 48 hours | N/A | Next patch specifically or generally correcting one or more Minor Defects, or next New Version, within a maximum of 3 months |
The workaround and correction timeframes above apply during Business Hours, excluding Customer response time, and start when the Customer has provided all information required to qualify and process the Defect. HE NOVATION shall acknowledge receipt of that information as soon as possible. Requests received outside Business Hours are deemed received at the beginning of the next Business Day.
APPENDIX 2 - PROTECTION AND SECURITY MEASURES
Security
The entire server infrastructure is managed using a Chef by Opscode recipe repository. All system changes are first applied to our internal pre-production environment, tested, and then applied to the production servers.
All internal service ports are protected by the firewall so that only servers within the HERAW access infrastructure are authorised (MySQL, API server).
The publicly accessible ports are 80/443 and 22. The “SSH 22” port is protected and responds only to valid SSH keys.
A “fail2ban” process blocks IP addresses that appear to be making malicious attempts to access the Servers.
All communications between the Customer’s browser and our application server are secured using HTTPS and a GeoTrust extended-validation SSL certificate.
To prevent cross-site request forgery (CSRF), a UUID is inserted into each request header.
The API server protects all requests against SQL injection.
All Content transfers between our servers are secured using SSH. They use SSH keys generated for each server and exchanged through Chef by Opscode.
HE NOVATION may modify its security protocols during the term of the Agreement, subject to informing the Customer in advance, for the purpose of improving those protocols and without changing its obligations as described in the Agreement.
Securing connections to the Software
A HERAW Account may be accessed in two ways:
· Using an available OpenID provider (Google, Facebook, Okta protocol or LinkedIn).
Authorisation of this connection requires an active browser session for one of these OpenID accounts. If no session is active, the User must sign in to their OpenID account in order to validate connection to the HERAW platform.
· Using a dedicated username and password.
The username for this connection is an email address.
The password is selected by the User when the account is created and may be changed at any time from the logged-in account-settings area.
The current password must be known in order to change an account password.
A forgotten password may be reset at https://app.heraw.com/retrieve_password.
The password reset takes effect only once the reset confirmation has been validated. Confirmation occurs when the User clicks the link in a confirmation email specifically sent to their email address.
Passwords must contain at least eight (8) characters, including at least one lowercase letter, one uppercase letter and one digit.
After each failed sign-in attempt using an incorrect password, the waiting time before another attempt is doubled.
Content security
All files added to HERAW for an account are automatically sent to secure Amazon servers.
Each file deleted by a User from the HERAW platform is retained for two (2) weeks before permanent deletion from the database and file storage.
Happy End undertakes to back up the database once per day.
APPENDIX 3 - TECHNICAL REQUIREMENTS
The hardware, software and Internet-connection requirements necessary for optimal use of HERAW are published and kept up to date at https://www.heraw.com/fr/cgv/prerequistechniques or any other address communicated by HE NOVATION. The Customer is responsible for ensuring that its User Workstations and Internet connection comply with those requirements. Changes to the requirements shall not give rise to any liability for HE NOVATION.
Required hardware and software configuration
For smooth use of the HERAW platform, your computer must meet the following minimum specifications:
Category | Minimum | Recommended |
|---|---|---|
| Processor (CPU) | Dual-core processor at 2 GHz or faster (Intel Core i3 or equivalent) | Quad-core processor at 2.5 GHz or faster (Intel Core i5 or equivalent) |
| Memory (RAM) | 4 GB RAM | 8 GB RAM or more for optimal performance, particularly when handling large files. |
| Disk space | 1 GB free space for temporary files. | 5 GB free space for processing large files. |
| Operating system | Windows: Version 10 or later macOS: Version 10.13 (High Sierra) or later Linux: Up-to-date distribution supporting modern browsers (e.g. Ubuntu 18.04 or later) | - |
| Browser | Latest version of Google Chrome, Mozilla Firefox or Microsoft Edge. | Google Chrome for optimal compatibility. |
Required Internet connection
To ensure a smooth experience when uploading files to HERAW, the following minimum Internet-connection requirements apply:
Category | Minimum | Recommended | Ideal / additional conditions |
|---|---|---|---|
| Upload speed | 5 Mbps for uploading medium-sized files (500 MB to 2 GB). | 10 Mbps for faster performance, particularly if you regularly work with large files. | For an optimal experience, a connection speed of 100 Mbps or more is strongly recommended. This allows even the largest files to be uploaded quickly and enables smooth, uninterrupted work. |
| Download speed | 10 Mbps | 20 Mbps or more for faster navigation within the interface and efficient file downloads. | 100 Mbps for maximum performance. |
| Connection stability | - | A wired Ethernet connection is recommended for optimal stability, especially for large files. | If using Wi-Fi, ensure a strong signal and stable connection to avoid interruptions. |
Recommended configuration for intensive use
If you frequently upload large files (2 GB or more), a more powerful configuration is recommended:
· Processor (CPU): Quad-core processor or better (Intel Core i7 or equivalent).
· Memory (RAM): 16 GB or more.
· Upload speed: 100 Mbps or more.
· Download speed: 100 Mbps or more.
