The General Terms lay down the conditions for the access and use of the 360Learning Software proposed by 360Learning SA by the Client (hereafter the “Software”).
The Client wishes to provide online training modules which include interactive knowledge tests which are developed internally by its teams. The Client approached 360Learning SA and decided to enter into the Contract, after having apprehended all of the functionalities that the Software offers. The Client acknowledges that it has received all information that would allow him to determine the suitability of the Software for his needs from 360Learning SA.
The Client is the unique counterpart of 360Learning SA. It is responsible for the payments that are due under the Contract and for complying with the Contract as well as with the terms related to its performance or non-performance by itself and by the persons under its responsibility that are authorized to use the Software (hereafter, the “Users”).
Hosting service: the current website is hosted by OVH, registered in Roubaix – Tourcoing, France under the number 424 761 419 00045, Code APE 6202A - Intra-Community VAT No.: FR 22 424 761 419 Head Office: 2 rue Kellermann 59100 Roubaix - France.
Company name: 360Learning SA, a limited company with authorized capital of € 189,279.30, registered in Paris under the number 512 663 733 00016.
Code APE: 6202A - Intra-Community VAT No. FR48 512 663 733
Head Office: 37 rue des Mathurins - 75008 Paris.
Main Office in France: 117 rue de la Tour - 75116 Paris
Director of publications: Nicolas Hernandez
The Client shall be a natural or legal person. Accounts created by robots or by automatic means are strictly prohibited. The Client shall provide its full identity, a valid email address as well as any mandatory information that are necessary for the creation of the online account. The Client shall create as many IDs as Users. Each User shall have an ID and a personal password. The ID is personal and cannot be used by several Users.
360Learning SA undertakes to implement all means needed to ensure continuity and quality of access to the electronic platform that hosts the Software during the usual opening hours in France, from Monday to Friday, from 8am to 7pm, Paris time, with the exception of French public holidays (the “Opening Period”).
Software maintenance operations (hereafter, the “Maintenance”) shall be performed daily outside of the Opening Period. The Software may not be accessible during Maintenance, if need be. 360Learning SA endeavors to inform the Client of any Maintenance scheduled during the Opening Period at least forty-eight (48) hours in advance, except in particular in emergency cases.
360Learning SA warrants to the Client that the Software offers all security conditions and measures in accordance with industry standards. The Client’s personal data which are collected when the Software is used are kept on secured devices in accordance with technical standards that comply with best industry practices throughout the term of the Contract.
The Client represents and warrants that it has a good understanding of the characteristics and constraints of the Internet, the response times for viewing, querying or transferring information. The Client represents that it is aware of security measures implemented by 360Learning SA, but acknowledges that because of the Internet’s characteristics, security shall be construed as a best-efforts obligation (“obligation de moyens”) on the part of 360Learning SA. In particular, 360Learning SA shall not be held responsible for the Software’s unavailability that is due to its subcontractors.
360Learning SA does not accept any liability for the reliability, sincerity, accuracy or relevancy of the information that are made available by the Client and the Users through the Software. The Client is solely responsible for the abovementioned information vis-à-vis third parties. Accordingly, the Client warrants and holds 360Learning SA harmless for any claim or legal action brought by a third party on the basis of these information and indemnifies 360Learning SA against all consequences (damages, costs, including lawyer’s fees, etc.) or any enforceable judicial decision rendered against 360Learning SA and in favor of those third parties. The Client undertakes, for itself and for the Users, not to pursue illegal purposes, download, transmit or distribute viruses, contents that are illegal, malicious, deceiving or that violate public decency, harm third parties or their rights, or that encourage the pursuit of illegal activities, not to interfere with the Software, the servers or the networks that are connected to the Software or interrupting those.
360Learning SA controls neither the validity nor the legality of the data that are entered or accessed by the Client and the activities that are performed by the Client via the Software. The Client is responsible for its data, for any content that it or the Users distribute(s) or for its use or the Users’ use of the Software and more generally for compliance with the applicable rules by the Client and the Users, and holds 360Learning SA harmless for any claim made by a third party in this respect and shall indemnify 360Learning SA for all consequences (damages, convictions, costs, including legal and lawyer’s fees, etc.) of such a claim. It is the Client’s responsibility to ensure that it has the equipment, software and means that allow it to use the Software.
The Client undertakes not to modify, reproduce or hack the Software and/or not to modify or create another website in order to mislead potential clients and have them believe that this website is linked to the Software.
The Client undertakes not to reproduce, duplicate, copy, sell, resell or exploit the Software or any portion thereof or the use of the Software or the access to the Software.
The Client undertakes not to transmit any virus or other code that may lead to failures of the Software or damage it.
The Client confirms that it is interested in the use of the Software for the training of its staff, partners or clients. It shall not use the Software to test its performances or functionalities with the aim of offering competing services.
If the Client’s use of bandwidth exceeds 300 MB/month, or significantly exceeds the average use of bandwidth (as determined by 360Learning SA) by other clients of 360Learning SA, 360Learning SA reserves the right to immediately deactivate the Client’s account until it reduces its use of bandwidth.
In the event that the Client or a User does not comply with any of the obligations to which they are subject personally or collectively, 360Learning SA reserves the right to suspend access to the Software, after having informed the Client via email of such suspension. This ability to suspend is without prejudice to any other remedy that are available to 360Learning SA and in particular its right to terminate the Contract.
The Contract is concluded for an initial trial period of fourteen (14) calendar days as from the date on which the Client’s account is opened (the “Effective Date”).
The purpose of this free trial period is to allow the Client to test the functionalities of the Software.
Upon expiration of this free trial period, the Contract is not automatically renewed. The absence of renewal of the Contract shall not give rise to any indemnity.
All the data that are entered in the Software and all the customizations that are made on the Software by the Client during the trial period and, more generally, during the Contract are permanently lost upon termination of the Contract unless the Client submits a prior request to 360Learning SA, which shall charge the Client for the costs related to the retrieval of these data.
In the event that the Client does not comply with any of its obligations and does not remedy such breach within eight (8) days following receipt of a notice sent by registered letter with acknowledgment of receipt, 360Learning SA is legally entitled to terminate the Contract, without prejudice to any other remedy that are available to it.
The Contract may be terminated in the event of non-payment of an amount that is due under the Contract and that has not been paid eight (8) days after the notice sent for that purpose, without prejudice to the damages that 360Learning SA could claim.
In case of delay of payment of an invoice related to the use of the Software, 360Learning SA reserves the right to suspend access to the Software. All the amounts that have been paid to 360Learning SA by the Client by the date of termination of the Contract are the property of 360Learning SA and 360Learning SA shall be entitled to request immediate payment of any amount that has been invoiced or that will be invoiced under the Contract.
Using the Software during the trial period is free. This free use of the Software applies only once for a given Client.
On the subscription date (the “Subscription Date”), the Client shall pay in advance the price allowing for the use of the Software for the coming month. The price is calculated on the basis of the number of registered Users on the Subscription Date. A regularization shall be performed for the Users who would have been registered between the Subscription Date and the date of the next first invoicing.
Billing is performed monthly, on the day of the Subscription Date, on the basis of the number of Users who are registered by this date. A regularization shall be performed for the Users who would have been registered between this date and the date of the next first invoicing.
360Learning SA reserves the right to revise the Software’s access price by means of a notice sent to the Client by email via the admin account. This new rate shall take effect two (2) months after this notice; the Client is entitled to terminate the Contract during that period in accordance with the terms stipulated in Article 5 – Term. Continuation of the Contract shall amount to acceptance of the new rate.
Invoices are due within five (5) days of its date of issue. Without prejudice to other remedies that are available to the Parties, failure to pay an invoice related to the use of the Software that has fallen due shall automatically lead to, in addition to its immediate collectability, the invoicing of interest rates calculated on the basis of a rate equal to five times the legal interest rate that is applicable to amounts that fall due as from the due date.
In the event that 360Learning SA entrusts the collection of its debt to a third party, the Client shall be liable, in addition to the abovementioned interest rates, for the costs and fees that have been incurred for the collection of the debt.
360Learning SA communicates with the Client by email via its admin account. The Client uses its admin account to communicate the list of Users that are authorized to access the Software to 360Learning SA.
The Client is legally responsible for the acts of the Users vis-à-vis 360Learning SA and third parties, including acts of representation of the Client in relation to the performance, non-performance or amendment to the Contract or the Software, notified by 360Learning SA by email to the Client or accepted by a User, the latter being, in accordance with the Contract, deemed to act in the name and on behalf of the Client.
The Client retains full ownership of the data that it hosts on the platform. 360Learning SA reserves the right to duplicate these data for hosting or backup purposes.
Any copyright, trademark or other intellectual property right (whether they are subject to registration or not) as well as any other property right or other right relating to the Software, the interfaces and specific developments resulting thereof for the purposes of the integration in the Client’s information system, the user guides and the related documentation (hereafter referred together as “Rights”) are and remain, in any circumstances, the exclusive property of 360Learning SA or its licensors.
The Client is solely responsible for the direct and indirect consequences of the intervention of a third party or a User on the Software and indemnifies 360Learning SA against any consequences (damages, costs, including lawyer’s fees, etc.) and any enforceable judicial decision resulting thereof rendered against 360Learning SA, including vis-à-vis third parties, without prejudice to other claims and indemnities that are available to 360Learning SA pursuant to the Contract.
Data published by the Client: the Client reserves 360Learning SA’s right to publish, duplicate, copy, exploit and retain data that are publicly exposed by the Client through the Software’s functionalities.
360Learning SA warrants that it has all the required rights in order for the Client to access the Software, provided that the Client uses this access in accordance with the Contract’s provisions. 360Leaning SA holds the Client harmless against any counterfeiting action as a result of the use of the access to the Software in accordance with the Contract and indemnifies the Client against any final judicial decision rendered against it on this ground.
In the event that the use of all or part of the access to the Software is prohibited, 360Learning SA furthermore undertakes, at its sole option and expense, to obtain the right for the Client to continue to use the access to the Software, or to replace the relevant Software by an equivalent application, or to modify the relevant Software in order for it not to be counterfeiting anymore. If, at 360Learning SA’s sole discretion, none of the three abovementioned solutions are achievable or financially relevant, 360Learning SA undertakes to reimburse any amount that has already been paid during the month preceding the event giving rise to the damage to the Client. This warranty shall be construed with the exception of an element provided by the Client or data accessible via the Software, but which does not amount to one of the elements provided by 360Learning SA to the Client and is exclusive of any other claim against 360Learning SA. This provision only applies at the end of the free trial period.
In the event that the Client gains knowledge of any counterfeiting of the Software, it undertakes to immediately inform 360Learning SA. The defense of its case shall solely remain with 360Learning SA.
The Software is accessed remotely, via the Internet network, by way of a “Service as a Software” or SaaS.
Using IDs and passwords (hereafter, the “Access Codes”) that will be communicated by 360Learning SA to the Client is necessary in order to access the Software at each connection.
The Client is solely responsible for the safekeeping, security and integrity of the Access Codes that are communicated by 360Learning SA to the Client or to a User and undertakes to report to 360Learning SA any loss or abusive use of the Access Codes, at the earliest opportunity and by all means, provided that it confirms without delay this loss or this abusive use by registered letter with an acknowledgment of receipt to 360Learning SA. Until receipt by 360Learning SA of such confirmation by registered letter with an acknowledgment of receipt, any action performed by a User on the Software is deemed to be performed by the Client and gives rise to the Client’s sole liability vis-à-vis 360Learning SA and third parties.
360Learning SA reserves the right to suspend access to the Software in case of legitimate suspicion of fraudulent use or attempted fraudulent use of the Software. 360Learning SA informs the Client of such an event at the earliest opportunity.
The parties acknowledge that, despite the high level of security standards implemented by 360Learning SA:
The Client represents and warrants to 360Learning SA that all the operations that are carried out by itself, including the Users, directly or indirectly thanks to the Software, comply with the rules that are applicable to its activities and to the Contract.
360Learning SA shall only be held liable for its own actions under the Contract and shall not be held liable for any indirect damages that might occur as a result of the use of the Software, including loss of profits, image, clients, activity, reputation or expected gain, time spend with the staff or service providers or loss of opportunity.
360Learning SA shall not be held responsible for any kind of content, provided or made accessible by the Client and the Users, through the Software (hereafter, the “Contents”).
The Client grants 360Learning SA a non-exclusive license on the Contents, concerning their use, reproduction or exploitation of the rights related thereto, including the modifications and translation, on any medium and for the entire legal term of protection of the Contents. 360Learning SA warrants to the Client that the Client’s Contents shall, in no circumstances, be sold and/or transferred to a third party. The Client represents and warrants that it holds necessary and sufficient rights on the Contents. The Client does not indemnify 360Learning SA against any claim or action made by third parties in relation to the Contents. The Client shall indemnify 360Learning SA against all consequences (damages, costs, including lawyer’s fees, etc.) or any enforceable judicial decision rendered against 360Learning SA and in favor of those third parties.
The Client warrants to 360Learning SA that the Contents are legitimately and legally made available online and do not infringe public decency and public policy rules that are applicable to the Contents and the Client’s activities, and do not counterfeit the rights of 360Learning SA or of third parties. The Client grants 360Learning SA an exclusive license on these Contents for the purposes of the performance of the Contract. The Client does not indemnify 360Learning SA against all harmful consequences resulting from the Contents being made accessible by the Client or the Users via the Software.
In addition, 360Learning SA shall not be held liable for the transfer or the quality of the transfer of the data, the quality and availability of the data transfer networks or service interruptions, blockages or interruptions of transfer and telecommunication means or the unavailability of the Software as a result of Maintenance, malfunction of the Client’s equipment or of the electronic communication networks.
360Learning SA is not liable for indirect damages. Non-material damages, in particular costs, including lawyer’s fees, shall be regarded as indirect damages.
In any event, 360Learning SA shall only be held liable by a final court decision, provided that a legal action has been brought against it within thirty (30) days as from receipt of the invoice covering the period during which the event giving rise to liability occurred, and shall not exceed, for all the damage suffered, a thousand (1,000) euros. The liability cap of a thousand (1,000) euros shall be lifted in the event that 360Learning committed dol (dolus) or gross negligence.
The submission of any claim by the Client does not allow the Client to withhold payment of an amount that is due under the Contract and that has fallen due.
The Parties shall not be held liable should it be impossible to perform the Contract because of Force Majeure, as defined by French case law. In addition, any act of terror, civil or foreign war, earthquake, crashing of an aircraft or a plane, fire, flooding, storm or any other natural disaster, strike that is external to the party claiming Force Majeure, deterioration, suspension or alteration of a means of electronic communication that is used in the context of the services because of restrictions in the use of power, governmental, legal or regulatory restrictions, and more generally any fact or event that is outside of the control of 360Learning SA and that prevents the normal performance of the Contract, shall be considered as cases of Force Majeure.
In the event that a case of Force Majeure lasts more than thirty (30) consecutive days, each party shall be entitled to terminate the Contract by means of a notice served to the other party via registered letter with acknowledgment of receipt.
Unless stated otherwise, all notices and communications shall be delivered to a Party by email via the admin account of the Client. Each Party may change its contact details by means of a notice served to the other Party in accordance with this Article.
The Parties undertake not to use and to uphold confidentiality of the information concerning the other Party that they may receive, of all documents and information that they exchange under the Contract, except if strictly necessary for the performance of the Contract. This obligation shall remain in effect for any reason for a period of two (2) years as from the end of the Contract.
This confidentiality and non-use obligation does not apply if the information and/or the documents are or become generally known or available without breach of the Party that received those, or if a Party is required to answer a judicial order or a request of disclosure from a public authority authorized by law, provided that it notifies the other Party in order for the latter to present its arguments in order to oppose such disclosure.
The Parties agree that all data, information, files and any other electronic element exchanged between the Parties amount to admissible, valid and binding proof with the same probative value as a signed written document.
The Parties undertake not to challenge the admissibility, validity, binding nature or probative value of the abovementioned elements, on the basis of their electronic format. In the absence of evidence to the contrary, these elements are valid and binding between the Parties in the same way, in the same terms and with the same probative value as any document that would be established, received or kept in writing. The provisions of this paragraph apply, in particular, to the notice served by 360Learning SA to the Client with regard to amendments to the Contract or their acceptance by a User in accordance with the terms referred to in Article 8 “Contract Management” above.
The provisions of the preceding paragraph do not apply to the notices between the Parties that shall be served by registered letter with acknowledgment of receipt.
Each Party shall be entitled to mention commercial references concerning the other Party in the communication and publication materials related to the Software.
Access and use of the Software may give rise to the collection and processing of personal data, whose use is governed by the provisions of the laws applicable to data protection. 360Learning SA warrants to the client that personal data concerning the Client are only disclosed to persons who are in charge of the use of the Software. 360Learning SA warrants to the Client that personal data concerning the Client and whose processing is under 360Learning SA’s responsibility are, in no circumstances, sold or transferred to a third party.
The Client undertakes to inform concerned Users and persons whose data are entrusted to 360Learning within the context of the subscribed Software, that they have a right to access their personal data and rectify those, which can be exercised under conditions laid down in the law. In addition, using the Software may give rise to the use of “cookies” which are necessary for the functioning of the Software.
The fact that 360Learning SA does not exercise the rights offered to it by the provisions of the Contract shall not be construed as a waiver of these rights.
Each Party undertakes, throughout the term of the Contract and for a period of two years after the end of the Contract, for any reason, not to hire or attempt to hire staff from the other Party, unless previously agreed by the other Party in writing.
In case of breach, the defaulting Party undertakes to pay to the other Party, without prejudice to any other remedy available to it, an indemnity equal to the amount of the gross salaries paid to the staff concerned during twelve (12) months preceding its departure.
Unless previously agreed by the other Party in writing, each Party undertakes not to assign or transfer all or part of its rights and obligations under the Contract to a third party.
The Client acknowledges and accepts that 360Learning may use subcontractors and agents for the purpose of the performance of the Contract.
Should a provision of the Contract be or become invalid, void or unenforceable, the other provisions of the Contract shall remain valid and enforceable.
The Contract replaces all agreements, conventions, incentives and conditions, past and concurrent, explicit or implicit, oral or written, of any kind, as regards its purpose.
The Contract is governed by French law, which also governs its interpretation and its implementation.
The exclusive court of jurisdiction for any disputes arising from the Contract and its amendments, including, but not limited to, in connection with its existence, its validity, its interpretation, its performance and/or its termination and all of the consequences resulting thereof, shall be the Paris Commercial Court (“Tribunal de commerce de Paris”), notwithstanding cases involving several defendants, guarantee calls or proceedings for interim relief.