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AGREEMENT FOR THE SUPPLY AND USE OF THE AUDION PLATFORM – TERMS AND CONDITIONS

RECITALS

Audion is a company which develops and operates a SaaS platform for the automation and measurement of advertising of digital audio, Podcasts and “Print Audio” (text to speech solution developed by Audion) (hereinafter the "Audion Platform" or the "Platform").


Audion provides services related to the use of the Platform (the "Services" as defined below).


The Services provided by Audion are cloud-based and accessed on the Internet.

The Client operates


Parties have agreed to define under this agreement for the supply of the AudiOn SaaS software (the "Agreement") the terms and conditions relating to the use of the Platform by the Client and its End Users (as defined below).


Parties declare and acknowledge that the negotiations preceding the execution of this Agreement have been conducted in good faith and that they have received, during the pre-contractual phase of negotiations, all the necessary and useful information to permit them to enter into the Agreement in full knowledge and having provided to each other all information likely to determine their consent and which they could have reasonably ignored.

IN LIGHT OF THE FOREGOING, PARTIES HAVE THEREFORE AGREED AS FOLLOWS:

PRELIMINARY ARTICLE – DEFINITIONS

Parties have agreed that the terms set out below, whether they be in the singular or plural, shall have the definition and meaning they have intended to give to these terms and these terms shall therefore be construed in accordance with the provisions of this Article as follows:

  • "Agreement": refers to this agreement relating to the use of the AUDION Platform and its appendixes, executed between Audion and the Client;
  • "Audion": refers to Company Audion, signatory of this Agreement;
  • "Client": refers to Company,signatory of this Agreement;
  • "Party(ies)": refers to the Client and/or Audion.
  • "Platform": refers to all Audion programs and software solutions made available to the Client as SaaS as part of the Services listed as appendix to the Agreement (Appendix 1). The Platform can be accessed under the following URL address: https://360.audion.fm
  • "Personal Data" : refers to any information relating to an identified or identifiable natural person. An identifiable natural person is, within the meaning of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, a natural person who can be identified, directly or indirectly, in particular by reference to an identifier, such as a name, identification number, location data, online identifier, or to one or more elements specific to his physical, physiological, genetic, mental, psychological, economic, cultural or social identity.
  • Services: refers to the services and SaaS solutions provided by Audion to the Client pursuant to the Agreement, and defined as of the date hereof in Appendix 1.
  • "User" or alternatively "End User": refers to any person authorized by the Client to access the Services in accordance with the provisions of the Agreement. It is understood that the End User is an employee, agent or representative of the Client.

ARTICLE 1 - PURPOSE

1.1 The purpose of this Agreement is to define the terms and conditions relating to the use of the Audion Platform by the Client and his affiliates under the following terms and conditions.


1.2 In accordance with the terms and conditions hereof, Audion garants to the Client and his affiliates as set out in Appendix 4 to this agreement and their respective End Users a non-exclusive and non-transferable right to use the Platform under the terms of this Agreement.

ARTICLE 2 - DURATION - RENEWAL

2.1 Duration

This Agreement shall be effective for a period of one (1) year as from the date of its execution (the "Term").

2.2 Renewal

The Parties agree that the Agreement shall then be renewed tacitly, under the same terms, for successive one (1) year periods (the "Additional Term(s)") in the absence of termination by either Party, sent by Email or in writing within a period of three (3) months prior to the expiry of said Term or Additional Term. For the avoidance of doubt, Adion is obliged to confirm receipt of such termination without delay by Email or in writing sent to Client.

ARTICLE 3 - PROVISION OF THE PLATFORM BY AUDION

3.1The Platform is a SaaS solution which can be accessed and used upon subscription to the Services in accordance with the provisions of this Agreement, and in particular as per the list of Services defined in Appendix 1 and the financial terms agreed upon on the date of execution of the Agreement and attached in Appendix 2.


3.2The Client is solely responsible for its access to the Services on his side and is with respect to his own infrastructure solely responsible for taking all measures necessary to maintain this access. Audion shall not be liable in the event of impossibility to access the Services due to an event which is beyond Audion’s control.

The Client and his Affiliates (Appendix 4) may only use the Platform in connection with said Services and in accordance with the terms hereof. It is responsible for the use of the Services by its End Users. It is its responsibility to ensure that End Users comply with the contractual conditions of access to the Services.

The Client may, with the exception of the mentioned Affiliates, not transfer in any way whatsoever the right of access to the Services without the prior written consent of Audion.

The Client undertakes not to allow unauthorized persons to access the Services and must ensure that each authorized person respects the rules of confidentiality of their personal identifiers and passwords.

3.3 Access to Services - Availability

The Services may be accessed by the Client, its Affiliates and their Users at all times, 24 hours a day, 7 days a week, with the exception of maintenance periods under the conditions defined in article 6.1.2 below.

The Client shall ensure that the confidentiality of all logins and passwords is respected by its End Users. Logins and passwords are used for access to the Services in order to guarantee the security of the Client's data. Logins and passwords may not be communicated to third parties.

The Client is solely responsible before Audion for the use and confidentiality of these logins and passwords and shall ensure that only authorized persons have access to the Services. The Client must inform Audion without delay if it notices a security breach related in particular to any voluntary disclosure or misappropriation of logins and passwords, and such in order to permit Audion to immediately take any and all appropriate measures to remedy such security breach.

In the event of loss or misuse of a login and/or password, a procedure for the assigning of new logins and passwords shall be implemented by Audion after notification of Audion by the Client.

The Client is informed that access to the Services is made via the Internet. It is informed that technical hazards may affect this network and cause slowdowns or unavailability making connection impossible. Audion shall not be held liable for difficulties relating to the accessing to the Services due to disruptions on the Internet network.

ARTICLE 4 - USER LICENSE

4.1Audion grants to the Client and its Affiliates a personal, non-transferable, non-exclusive and non-sublicensable license granting to right to the Client and its authorized End Users to access and use the Platform exclusively for the purpose of using the Services under the terms and conditions and for the duration of this Agreement.


4.2The license to use the Platform is granted for the Client's exclusive needs, and the Client is prohibited from permitting any third party to access the Platform.

ARTICLE 5 - FINANCIAL TERMS

5.1 Financial terms relating to the use of the Platform and of the Services

In consideration of the granting of the license (free) to use the Platform and the Services provided hereunder, the Parties agree that the Customer will give Audion the management of all advertising volumes in order to market them with a revenue sharing arrangement set out in Appendix 3.


Financial terms and conditions for the provision of the Licence Fees and Technical Fees are defined in Appendix 1.


It is understood that in order to avoid all doubt, the calculation of the advertisements distributed by the Client through the Platform shall be based on statistical data established by Audion.

5.2 Additional services

Any other services provided by Audion shall be subject to a separate written quotation previously accepted by the Client, or after agreement of the Parties of an order form.


This quotation or order form shall be attached to Appendix 1 following agreement of the Parties.

5.3 General provisions

Audion's invoices shall be due, without any deduction, within thirty (30) days of receipt. Audion's invoices are issued in Euros.


The Client shall pay the full amount of each invoice, including all taxes indicated, without offset of any amounts due or claimed to be due from Audion.


Any bank charges or fees or such from any other intermediaries related to the payment or any incident shall be borne exclusively by the Client. The Client undertakes that all sums paid by the Client shall be of the amount provided for herein without deduction by the Client of any withholding tax, which shall be solely borne by the Client.


In the event of total or partial non-payment, the Client shall pay to Audion a late payment penalty equal to three (3) times the French legal interest rate.


This penalty is calculated on the basis of the amount including VAT of the amount being due and runs from the due date of the invoice without any prior formal notice being necessary.


The Client undertakes to honor all invoices on time and without unlawful deduction. Any delay in payment shall result in the payment of a flat-rate indemnity for recovery costs of forty (40) euros. If the recovery costs are higher than this flat-rate amount, additional compensation shall be due, upon presentation of supporting documents.


In the event of a dispute relating to an invoice, payment of the disputed invoice remains due. If the dispute is accepted, a credit note shall be issued and provided to the Client promptly.


In the event the Client fails to pay all sums due to Audion pursuant to this Agreement in accordance with these contractual terms, Audion shall send the Client a registered letter with acknowledgement of receipt, or by any other means with a definite date of receipt, instructing it to provide payment within thirty (30) days of receipt of the said letter. In the event that following this period, the Client has not paid all the sums due in principal, interest and costs, Audion may interrupt access to the Services and shall in addition be authorized to terminate this Agreement, as of right, without notice or judicial formality, without prejudice to the right to recover any other sums due and damages.

ARTICLE 6 – PARTIES’ OBLIGATIONS

6.1 Audion's Obligations

6.1.1 Compliance with regulatory obligations

Audion undertakes to comply with all regulations applicable to the distribution of information and services on the Internet, in particular the mandatory provisions intended to ensure the protection of public order, especially the GDPR and other legal provisions applicable for Client and its Affiliates. In particular, Audion undertakes to take appropriate technical and organizational measures to protect the personal data processed via the platform and the business-related information of the customer and its affiliated companies and to protect this data from loss, impairment, unauthorized processing or other unlawful processing or processing not authorized by the customer or its affiliated companies during the entire term of the contract. For each and every breach of the above provisions, the client shall be entitled, subject to any further claims or rights, to an extraordinary right to terminate this agreement without notice. Where processing by Audion involves the processing of personal data on behalf of Audion in accordance with Art. 28 GDPR, Audion undertakes to enter into an agreement for commissioned processing that is sufficient in accordance with the statutory provisions, as laid down in Appendix 23.


Audion also undertakes to provide within the Platform all the required legal information, and to update this information, in particular in the event of regulatory change.


Audion undertakes to inform the Client, as soon as possible, of any adjustments and changes to the Platform made necessary by regulatory changes, and to make such adjustments and changes within a reasonable time in order to comply with the new regulations.

6.1.2 Maintenance and warranty

6.1.2.1The Platform being a standard software designed to satisfy the greatest number of users, Audion cannot guarantee that it be adapted to the specific needs of the Client.


Any specific or additional development or functionality requested by the Client shall be subject to a separate and prior agreement between the Parties and, where applicable, additional invoicing under the terms of Article 5.2.


6.1.2.2Audion undertakes to regularly update the Platform, so that it remains in line with the current state of the art and the expectations of its clients. Audion warrants and represents that the Platform will be secure, fully functional, performant, stable and suitable for use as contracted throughout the term of the contract.


Audion undertakes to correct promptly bugs and repetitive defects of the Platform that have been reported by the Client.


Audion shall make its best efforts to ensure that the Platform be continuously accessible.


Thus, in the event of a service interruption for any reason whatsoever, Audion shall make its best efforts to ensure that the Platform be promptly available.


For the avoidance of doubt, Audion provides no other express or implied warranties with respect to the Services, including, without limitation, any implied warranties of quality or adequacy of the Platform for a particular purpose. Audion does not guarantee the results of the Services and is only bound by an obligation of means. Audion does not guarantee that the functionalities of the Services shall meet the Client's requirements. Parties acknowledge that software may contain errors and that not all errors are economically correctable or that it is not always necessary to correct them. Audion does not therefore guarantee that all defects or errors in the Platform shall be corrected.

6.1.2.3 Service Level

Notwithstanding any interruption of service for safety reasons or planned service interruption, as defined in Article 6.1.2.4 below, in the event of an interruption of a duration exceeding seventy-two (72) consecutive hours over a period of one (1) month, Audion shall refund to the Client the sums paid for unavailability days on the basis of a credit note in proportion to the Flate Rate Fee paid for the unavailability period in question.

6.1.2.4 Security and planned Service interruption

Audion undertakes to take all measures in accordance with the state of the art to guarantee the security of its Services and of the Platform, in particular against risks of intrusion or viruses.


Audion reserves the right to interrupt the operation of the Services or prohibit access to the Services or the Platform when the Service's security is threatened (security breach detected, intrusion, data corruption, viruses, malware).


Audion may also carry out planned Service interruptions, in whole or in part, in particular to carry out maintenance work or updates of the Platform. These interruptions and maintenance works shall be performed during periods of low activity when possible. In this case, Audion shall make its best efforts, where possible, to notify the Client within a reasonable time of any such planned discontinuation of Services.


Any interruption shall, as far as legally and technically possible, be set out in In consultation with the customer and in a manner that interferes as little as possible with the agreed operation of the platform and its use by the customer and its affiliated companies.


Audion undertakes to restore access to the Services and to the Platform as soon as possible.


No credit or reimbursement or equivalent note in any form whatsoever under Article 6.1.2.3 shall be issued in the event of a Service interruption under this Article 6.1.2.4. However, this only applies to the extent that the downtime of the platform does not exceed 4 hours per month, does not significantly affect the performance and business interests of the Customer and its affiliated companies and is coordinated with the Customer. In all other cases, the Customer has an extraordinary right to terminate this contract with immediate effect.

6.1.3 No exclusivity

The Parties do not agree on any exclusivity obligations. Audion shall therefore be free to provide services and licenses to use the Platform to other clients, including competitors of the Client.

6.2 Client's Obligations

6.2.1The Client undertakes to regularly inform Audion of any defect, malfunction or problem affecting the Platform, and of any operating difficulties encountered in connection with the use of the Platform.


In the event of any difficulty, the Client undertakes to provide Audion with any information or document characterizing this anomaly and likely to facilitate its understanding of the problem encountered.


6.2.2The Client guarantees and ensures that its employees, agents, representatives and managers strictly comply with all the obligations stipulated herein.

6.2.3 End Users

The Client remains, under the terms and conditions hereof, fully liable to Audion for the use by all its End Users of the Services and the Platform.


All End Users shall comply with the present terms and all applicable Audion policies and terms and conditions relating to the use of the Platform as set out in .

6.2.4 Use of the Services

The Client undertakes:

  • not to bypass the security features of the Platform and the Services;
  • not to disrupt or impose a disproportionate burden on the Platform and Services (e.g. spam, denial of service attacks, viruses, game algorithms); and/or not to publish any data in any form that contains viruses or other harmful code;
  • not to reverse engineer, decompile, disassemble, decipher or generally attempt to obtain the source code of the Platform or any related technology, or any part thereof, subject to mandatory legal provisions;
  • not to use any technique to simulate the appearance or operation of the Platform;
  • not to use any software, hardware, manual or automated coding robots or other means to access, "decompose", "analyze" or "index" the Services or any related data or information;

The Client is required to report any misuse or breach that it may be aware of on the Platform by:

  • communicating, as soon as they become aware of it, any information relating to information or data allegedly contrary to the legal provisions in force or in violation of this Agreement;
  • informing Audion of any complaint or action by a third party, in the same form;
  • responding as soon as possible to any request for information from Audion.

The Client guarantees and ensures compliance with these terms by all its End Users.

  • In the event that Audion's liability is sought in relation to the breach by an End User of its obligations, the Client undertakes to indemnify Audion in relation to any conviction against Audion as a result. This guarantee covers compensation that Audion would have to pay as well as the legal and attorney fees it would have incurred.

The Client ensures that the storage and use of the Client's data does not constitute:

  • a violation of the rights of third parties; and/or
  • a violation of individuals’ rights and privacy laws; and/or
  • a breach of public order and morality.

ARTICLE 7 - CLIENT DATA and HOLD-HARMLESS

7.1Audion undertakes to take all measures in accordance with the current state of the art to guarantee the integrity of the Client's data, in particular by undertaking regular backups.


The Client may at any time backup its data following the modalities set forth in the Platform and remains solely responsible for the backup of its data.


7.2The Client declares that it holds all rights and authorizations pertaining to the process of its data in relation to the use of the Services.


The Client grants, as necessary, to Audion and its subcontractors, a non-exclusive, worldwide, free and non-transferable license to host, cache, copy and display such Client data for the sole purpose of performing the Services and exclusively in combination or in connection with them.


This license shall automatically terminate upon termination of this Agreement, unless it is necessary to continue hosting and processing the Client's data, in particular as part of the implementation of reversibility operations, and subject to terms of Article 7.3.


The Client declares and guarantees that it has all the authorizations necessary for the use of its data in connection with the Services and that it may freely grant a license under the terms referred to above to Audion and its subcontractors.


The Client further declares and guarantees that by creating, installing, uploading or downloading its data as part of the Services, it does not exceed any right that may have been granted to it on all or part of its data and that it does not infringe the rights of third parties.


The Client undertakes to compensate Audion for all the financial consequences that Audion may have to bear as a result of a breach by the Client of the above-mentioned guarantees concerning its data. Vice versa Audion hereby indemnifies the Client and its affiliated companies without limitation against all costs and expenses, including but not limited to fines and penalties, incurred by the Client as a result of a violation of legal provisions, in particular data protection regulations, for which Audion is responsible. All further claims or rights of the client shall remain unaffected.


The Client shall ensure that when using the Services, it does not place data that would require Audion to comply with specific laws or regulations other than those expressly provided for in the Agreement.

7.3 Access to Client data

Access to Client data is restricted to the Client and its End Users only.


However, for the sole purpose of the Services, Audion shall also be able to access such data. The period of conservations of the data by Audion may not exceed the legal conservations period.


It is specified that Personal Data is saved, aggregated and anonymized every forty-five (45) days.


Data of an advertising nature is stored, archived and anonymized by Audion.


The Client is informed and accepts that Audion may access its data and transmit it at the request of an administrative or judicial authority authorized to access the Client's data, in compliance with the applicable regulations.


Unless said request prevents it from doing so, Audion shall ensure that the Client is informed without delay of the existence of such requisition and of the data which has been transmitted.


The Client is solely responsible for the creation, selection, design, use and disclosure of Client data by End Users in connection with the Services. It is also solely responsible for the collection and processing of Personal Data by End Users in accordance with Applicable Regulations (as defined below). It is the sole responsibility of the Client to comply with all applicable laws and regulations, including the Applicable Regulations, and to obtain any prior approvals.


The Client acknowledges that Audion has no control over the transfer of Client data via public telecommunications networks used by the Client to access the Services, including the Internet network. The Client acknowledges and accepts that Audion cannot guarantee the confidentiality of the Client's data when it is transferred to said public networks. Consequently, Audion may under no circumstances be held liable in the event of, in particular, the misappropriation, capture, corruption or any other event likely to affect the Client's data, occurring during their transfer on the public telecommunications networks.

ARTICLE 8 - INTELLECTUAL PROPERTY

The Client is not granted any intellectual property rights pertaining to the Platform, and it is reminded that Audion is and remains the sole owner of the intellectual property rights relating to the Platform.


The Client undertakes never to infringe Audion's property rights.


Any other use of the Platform, including any reproduction or modification of the Platform, is strictly prohibited.


The Platform, as well as all interfaces and applications developed by Audion to access the Audion Services, available and future, on all current and future operating systems and platforms, as well as all trademark registrations, present or future, and related elements, including all logos, designs, models, images, photographs, illustrations and all other elements and associated rights remain the exclusive property of Audion.


The Services are protected by laws relating in particular to copyright and trademarks, and by other laws in force in France, the European Union and foreign countries. Nothing contained herein shall be construed as granting the Client or its End Users any right to use Audion's name, trademarks, logos, domain names and other distinctive attributes and elements belonging to Audion. All right, title and interest in the Services and/or Audion is and shall remain the exclusive property of Audion.


The content and data (other than Client’s data) included or accessible on and/or through the Platform, including any text, graphics, logo, name, trademark, designation, tab, feature, image, sound, data, photograph, graphic, and any other hardware or software remains the exclusive property of Audion. It is protected by intellectual property laws and is subject to the applicable laws and regulations.


Under no circumstances may these elements be downloaded, copied, altered, modified, deleted, distributed, transmitted, broadcast, sold, rented, licensed, transferred or exploited (in whole or in part) in any way whatsoever, without Audion's express written consent. The Client agrees not to use or exploit these elements for any purpose other than those referred to herein. In addition, except where mandatory legal provisions apply, the Client is not authorized to modify, improve, edit, translate, decompile, disassemble or create one or more derivative works from the Platform (in whole or in part), or unless this possibility has been expressly granted to it by Audion, under a separate agreement.

ARTICLE 9 - GUARANTEE AGAINST EVICTION

Audion guarantees to the Client that it holds all the rights enabling it to conclude the Agreement.


As such, Audion declares that it owns all the intellectual property rights relating to the Platform.


In particular, Audion guarantees:

  • that the Platform does not constitute an infringement of any pre-existing work;

  • that it has respected and shall respect the intellectual property rights of third parties, in particular copyright, design and model law, patents and trademarks.

As such, Audion guarantees the Client against any action, request, claim or opposition initiated by any person claiming an intellectual property right or an act of unfair and/or parasitic competition, which would have been infringed due to the performance of the Agreement.


For its part, the Client undertakes to immediately notify Audion of any counterfeiting of the Platform of which it is aware, Audion being then free to take any measures it deems appropriate.

ARTICLE 10 - LIABILITY

10.1Audion undertakes to provide the Services as defined in the Agreement and in accordance with the standards of its profession.


Audion shall correct bugs, excluding (i) any other damage related in particular to the unavailability of the Platform, regardless of its duration, (ii) and any error or bug resulting from the Client or one of its Users.


The Client uses the Platform and the results obtained by its use under its exclusive responsibility, without any possible recourse against Audion. In particular, Audion cannot be held liable for errors, whatever the cause, pertaining to the results obtained, which is the Client’s and its Users’ responsibility to verify.


10.2Under no circumstances shall Audion be held liable for any indirect damage suffered by the Client that may arise as a result of or in connection with the performance of this Agreement and its consequences. Indirect damages include, but are not limited to, loss of profits or of earnings, loss of data, loss of opportunity, commercial damages, consequences of complaints or claims of third parties against the Client, notwithstanding the fact that Audion would have been advised of the possibility of their occurrence, with the exception of the provisions of Article 9 of the Agreement relating to eviction guarantees granted by Audion, gross negligence as well as the violation of essential contractual obligations, in particular also the compliance of the contractual services with the statutory provisions.


Under no circumstances shall Audion's financial liability, if determined, exceed the amounts paid by the Client for the Services for which Audion is liable, and within the limit of the amounts paid by the Client to Audion within the period of the last three months, and subject to the payment by the Client of all due invoices. Audion shall not be liable for any breakdowns or damage resulting from the contamination of the Client's computer system by viruses, attacks and malicious acts of third parties.


Under no circumstances shall Audion's liability be sought in the following cases, this list being non-limitative:

  • use of the Services in any manner not expressly authorized under this Agreement, insofar as it does not correspond to a contractual use of the platform for the purpose assumed by the parties to this agreement;
  • modification of all or part of the Platform or information accessible via the Services not carried out by Audion;
  • use of the Services in an environment or configuration that does not meet Audion's reasonable technical requirements, or in connection with third-party programs or data not expressly endorsed by Audion;
  • loss of Client data following an intervention by Audion or a third-party service provider designated by the Client or by Audion, while the Client has not taken the precaution of backing up its data prior to such intervention when requested to do so;
  • the occurrence of any damage resulting from the fault or negligence of the Client, or which the Client could have avoided by following Audion's given advice;
  • use in connection with the Services of programs not provided or endorsed by Audion that may affect the Services or Client data;

  • deletion of the Print Audio tag by a third party host.

10.3All of the above limitations and exclusions of Audion’s liability shall apply vice versa in favour of the Client for the Client's liability to Audion.

ARTICLE 11 - ASSIGNMENT AND TRANSFER

The Client shall be solely responsible for the performance of this Agreement, and in particular shall refrain from assigning or transferring the rights defined in this Agreement.


Any changes which could occur in the person of Audion, such as for example merger, scission, takeover, partial business transfer, assignment, transfer to a subsidiary, as well as any commercial or legal agreement with a third party, shall have no effect whatsoever on the existence and performance of this Agreement.

ARTICLE 12 - TERMINATION

Either Party shall have the right to terminate this Agreement by sending a notice, in the event that the other Party would fail to perform any of its obligations under this Agreement, and would not have remedied such failure, to the extent reasonable, within a reasonable period of time following receipt of said notice.

ARTICLE 13 - CONSEQUENCES OF THE EXPIRY OR EARLY TERMINATION OF THE AGREEMENT

13.2In the event of expiry or termination of this Agreement, the license subscribed by the Client shall automatically terminate at the end of contract term.

13.3 Reversibility clause

In the event of expiry or termination of this Agreement, Audion shall assist the Client in taking over the management of its IT operations, either by itself or by entrusting it to a new service provider of its choice.


To do so, Audion shall provide technical assistance to the Client or to the third party designated by the Client, to enable the Client to resume the operation of the returned services.


Payment for the reversibility service provided by Audion shall be made on the basis of the time spent by Audion representatives or on a financial proposal after prior acceptance by the Client.

ARTICLE 14 – CONFIDENTIALITY

14.1Each Party undertakes to respect and ensure the confidentiality of information of any kind whatsoever, written or oral, transmitted by the other Party for the purposes of the performance of this Agreement or of which they have become aware during their commercial relations and identified as confidential (the "Confidential Information").


Parties (i) undertake to take all measures to ensure the strict confidentiality of such Confidential Information and (ii) agree that any Confidential Information received from the other Party shall only be used to provide or receive the Services under the Agreement.


Parties guarantee the respect of this confidentiality commitment by all their employees, managers and executives.


In any event, this obligation of confidentiality does not bind the Parties insofar as the Confidential Information:

  • are generally available to the public, as well as those that become available to the public, other than as a result of a violation of this section;
  • are obtained from third parties not subject to a confidentiality obligation regarding this information;
  • are or were independently developed by or were known to the Party receiving the information prior to their receipt.

However, each Party shall be entitled to disclose any Confidential Information to its insurers, auditors or lawyers, administrative or judicial authorities, upon production of the decision of the authorities concerned or when required by law.


14.2This confidentiality undertaking shall remain in effect after the expiry or termination for any reason whatsoever of this Agreement for a following period of three (3) years.

ARTICLE 15 - PROTECTION OF PERSONAL DATA

Parties undertake to comply with the regulations in force relating to the protection of personal data ("Personal Data") in accordance with the applicable regulations relating to the use or protection of personal data (the "Applicable Regulations"), and in particular, on the date hereof, the provisions of Regulation 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (the "GDPR" Regulation) and the French Computer and Freedoms law of 6 January 1978 as amended (the "LIL") and all other data protection regulations, insofar as they are applicable to the customer and its affiliated companies.


In the context of the performance of the Agreement, Audion shall act solely on the Client's instructions under the Application Regulations. Audion shall act as subcontractor and the Client as controller. In this respect, Audion undertakes not to use the Personal Data for its own account or for that of a third party.


Audion certifies that it has been informed of the policy implemented by the Client on the processing of personal data, in compliance with the rules relating to the processing of personal data.


Parties have therefore agreed that in the event that Audion processes Personal Data under the instructions of the Client as a subcontractor, Parties shall sign an Addendum to this Agreement relating to the protection of personal data. The form of this Addendum is attached as Appendix 23, and in the event of its conclusion, this Addendum shall be considered as forming one and only agreement with this Agreement, and in the event of a breach of the Addendum, the aggrieved Party shall have the right to terminate this Agreement in accordance with the terms and conditions defined herein.

ARTICLE 16 - IT SECURITY

Audion undertakes to take all precautions and make its best efforts to ensure reasonable physical protection of the data, files, programs and any other item of information entrusted to it by the Client.


Audion provides the Client with the security policy for the information systems it has implemented and informs it of any changes to this policy. Audion informs the Client of the potential risks associated with the processing.

ARTICLE 17 – SUBCONTRACTING

Audion may use subcontractors. In this case, Audion shall remain fully liable to the Client for the subcontractor's performance of its obligations.

ARTICLE 18 – COMMERCIALIZATION AGREEMENT

Parties agree that in the event that the Client wishes to use Audion's representation and management services and consequently enter into a commercial representation relationship pertaining to Audion’s commercial representation of the Client's audio , digital and podcasts content, the terms of such agreement have already been agreed and the corresponding model is hereby attached as Appendix 3.

ARTICLE 19 - NOTICE

Any notice from either party to the other party required or permitted hereunder shall be in writing and shall be sent by registered letter with return receipt requested, or by DHL, UPS or any equivalent service, to the addresses set out above or to the last address notified by each party to the other.

ARTICLE 20 - APPENDIXES

It is hereby expressly agreed that all appendixes mentioned in this Agreement are integral parts of this Agreement.

ARTICLE 21 - SURVIVAL OF OBLIGATIONS

The expiry or early termination of all or part of the Agreement, for any reason whatsoever, shall not affect the validity of the rights and obligations provided for in the Agreement which, by their nature or by reason of specific provisions, extend beyond the term or such termination, both for the Parties and for their successors in title, until their respective expiry dates.

ARTICLE 22 - INDEPENDENCE OF THE PARTIES

It is hereby expressly agreed that compliance with the present terms and conditions do not imply any limitation whatsoever of the Parties’ independence or responsibility in their respective business management, nor affect their status as independent companies.


Parties shall comply with all legal obligations related to their status as independent companies, and among others with the obligation to keep their own accounting, for which they shall be solely responsible.


A Party shall not be responsible at any time for any actions carried out by the other Party, or its employees or any member of management.

ARTICLE 23 - SEVERABILITY

In the event any provision of this Agreement is held to be void, invalid or unenforceable by reason of any final court decision, the remaining provisions shall remain in effect and be enforceable between the Parties provided that such does not prejudice the fundamental provisions of this Agreement.

ARTICLE 24 - ENTIRE AGREEMENT - MODIFICATIONS

This Agreement contains the entire agreement of the Parties hereto relating to the subject matter hereof and supersedes all previous agreements between the Parties before its date of signature and pertaining to subject matter of this Agreement.


Any modification to this Agreement shall not be valid unless approved in writing by both Parties, including the modification or waiver with regard to this form clause.

ARTICLE 25 - WAIVER

Failure by any Party to take immediate action with respect to acts or failures of the other Party in the performance of this Agreement shall not constitute a waiver of such Party’s remedy or right to take judicial or other appropriate measures, nor shall it constitute waiver of such action in the future. Should a Party expressly waive a breach or default, such waiver shall not be applicable to any future breach or default.

ARTICLE 26 - HEADINGS

Headings are inserted in this Agreement for convenience of reference only and shall not affect the construction or interpretation of any of the provisions in this Agreement.

ARTICLE 27 - LANGUAGE OF THE AGREEMENT

This Agreement is established and executed in English.


In the event a French version of the Agreement would be executed, and in case of dispute with regard to the interpretation of the present Agreement, the French version shall prevail.

ARTICLE 28 – GOVERNING LAW AND JURISDICTION

28.1 Governing law

This Agreement shall be governed by and construed by the laws of GermanyFrance.

28.2 Amicable resolution

In the event a dispute arises between the Parties out of or in connection with the formation, execution, interpretation, or termination of this Agreement, the Parties undertake to exert their best efforts in order to resolve said dispute amicably. In consideration of their mutual benefit, Parties shall to this effect enter in good faith into negotiations in order to find a fair and equitable solution preserving Parties’ best interests.

28.3 Disputes

In case of failure to solve said dispute amicably within a period of thirty (30) days, such dispute shall be exclusively brought before the Paris competent court.

ARTICLE 29 - CONSEQUENCES RELATING TO FORCE MAJEURE

Any delays in or failure of performance by either Party under this Agreement shall not be considered as a breach thereof if such delay or failure is caused by a condition of force majeure beyond the reasonable control of the Party affected.


Force majeure shall designate acts of government, acts of god, war declaration by Government and national state of emergency, of which the effect would be prohibiting or impeding any Party from performing its respective obligations under the Agreement, and which are unforeseeable and unavoidable.


The foregoing shall not be considered a waiver of either Party's obligations under this Agreement; and as soon as such force majeure condition shall cease, the Party whose performance is affected thereby shall promptly fulfil its obligations in connection with this Agreement.


Notwithstanding the foregoing, If the case of force majeure, or the delay caused by this event extends beyond a period of thirty (30) days, this Agreement and the Parties' obligations shall automatically and immediately cease by sending a registered letter with acknowledgement of receipt for this purpose, unless otherwise agreed between the Parties.

APPENDIX 1

FINANCIAL TERMS SAAS SOLUTION

A quotation will have to be requested in order to define the specific costs for the use of the plateform.

APPENDIX 2

ADDENDUM RELATING TO THE PROTECTION OF PERSONAL DATA

I. Purpose

The purpose of this addendum (the "Addendum") to the Agreement for the provision of SaaS AUDION solutions (the "Main Agreement") is to define the conditions under which Audion, in its capacity as subcontractor, undertakes to carry out on behalf of the Client, in its capacity as controller, the processing of personal data (the "Data") defined below.


Any term defined in the Main Agreement shall retain the same definition in this Amendment.


In the context of their contractual relationship, Parties undertake to comply with the regulations in force applicable to the processing of personal data (the "Applicable Regulation") and, in particular, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (the "GDPR" Regulation) and the French Computer and Freedoms Act of 6 January 1978 as amended (the "LIL

II. Description of the processing operations being subcontracted

Audion is authorized to process on behalf of the Client, the controller, the Data necessary to perform its Services.


The nature of the operations performed on the Data is real time server-side ad stitching on podcasts and text-to-speech solution.


The purpose of the processing is the performance of the Services under the terms of the Main Agreement.


The Data processed are of the following nature:

Definition IP address :

An Internet Protocol address (IP address) is a numerical label assigned to each device connected to a computer network that uses the Internet Protocol for communication. An IP address serves two main functions: host or network interface identification and location addressing.

Definition User Agent :

In computing, a user agent is software (a software agent) that is acting on behalf of a user, such as a web browser that "retrieves, renders and facilitates end user interaction with Web content". An email reader is a mail user agent. In many cases, a user agent acts as a client in a network protocol used in communications within a client–server distributed computing system. In particular, the Hypertext Transfer Protocol (HTTP) identifies the client software originating the request, using a user-agent header, even when the client is not operated by a user.


In the context of ad insertion, we receive IP address and user agent information for every call on our server in order to deliver the content. We must process those informations for two reasons:

  1. Deduplication between listens :
    In order to manage the logic of advertising and to better account for consolidated listening statistics, we dynamically generate an anonymised and unique identifier based on the IP address and the user agent allowing us to link an operation to a key.
  2. Geo-targeting : In the platform, the customer has the possibility to add an anonymised geographical targeting by country or by region. This targeting feature is performed based on the user's IP address.

The processing of those datas is based on our legitimate interest. We have performed a balancing test and have concluded that the processing of those data will have minimal impact to the user's privacy and the processing is necessary to continue to provide them with audio content.


Retention Period - The hashed IP address and all anonymised data collected will be retained for analysis and information purposes. In addition, Audion retains your clear text (identifiable) IP address for 14 days, after which time this is deleted.


IP Address and User Agent are collected to count:

  • Listening/ Downloads
  • Advertising impressions
  • Identify platforms and devices (only with user agent)

For the performance of the Services, the Client shall make available to Audion the necessary information as provided for in the Main Agreement

III. Duration of the Addendum

This Addendum shall enter into force on the date of its conclusion and shall be applicable for as long as the Main Agreement is applicable.


In the event of a breach of the Addendum by either Party, the other Party shall have the right to terminate the Addendum without delay and with immediate effect after notification by registered letter with acknowledgement of receipt.


All the obligations set forth herein form one and only agreement with the Main Agreement agreed between the Parties, the termination of this Agreement shall automatically terminate the Main Agreement. Similarly, in the event of the expiration or early termination of the Main Agreement, this Agreement shall automatically terminate.

IV. Subcontractor's obligations with regards to the controller

Audion undertakes to:

  1. process the data only for the sole purpose(s) for which the data are being processed;

  2. process the data in accordance with the documented instructions of the controller. If Audion considers that an investigation constitutes a violation of the GDPR or any other provision of EU Law or the law of the Member States relating to data protection, it shall immediately inform the Client. In addition, if Audion is required to transfer data to a third country or international organization, under EU Law or the law of the Member State to which it is subject, it must inform the controller of this legal obligation before processing, unless the law concerned prohibits such information for important reasons of public interest;

  3. guarantee the confidentiality of the Data processed under the Agreement;

  4. ensure that the persons authorized to process the Data under the Agreement:

  5. undertake to respect confidentiality or are subject to an appropriate legal obligation of confidentiality;

  6. receive the necessary training in the protection of personal data;

  7. take into account, with regard to its tools, products, applications or services, the principles of data protection from the design stage and data protection by default.

  8. Subcontracting

Audion may not recruit any further subcontractors without the Client's prior and specific written authorization.


Audion is required to comply with the obligations hereof on behalf of and as instructed by the controller. It is Audion’s responsibility to ensure that the subcontractors the same sufficient guarantees as to the implementation of appropriate technical and organizational measures to ensure that the processing operation complies with the requirements of the GDPR. If the subsequent subcontractor does not fulfil its data protection obligations, Audion remains fully liable to the Client in relation to the performance by the other subcontractor of its obligations.

  1. Right to be informed

It is the controller's responsibility to provide the information to the persons concerned by the processing operations at the time of data collection.

  1. Exercise of individuals’ rights

Audion shall help to the most possible the Client to fulfil its obligation to comply with requests to exercise the rights of the persons concerned: right of access, rectification, deletion and opposition, right to limit processing, right to data portability, right not to be the subject of an automated individual decision (including profiling).


Where the persons concerned make requests to the subcontractor to exercise their rights, Audion must send these requests as soon as it receives them by e-mail .

  1. Notification of violations of personal data

Audion shall notify the controller of any Data breach within a maximum period of twenty-four (24) hours after becoming aware of it, providing the Client with sufficient information to enable the Client to comply with all its legal and regulatory obligations. This notification shall be accompanied by all relevant documentation to enable the controller, if necessary, to notify the competent supervisory authority of this breach.

  1. Assistance of Audion in the context of the Client's compliance with its obligations

Audion assists the Client in carrying out impact analyses relating to data protection.


Audion assists the Client in carrying out the prior consultation with the supervisory authority.

  1. Security measures

Audion undertakes to take all necessary precautions to preserve the security of the information and in particular to protect it against any accidental or unlawful destruction, accidental loss, alteration, dissemination or unauthorized access, in particular where the processing involves the transmission of data over a network, as well as against any other form of unlawful processing or communication to unauthorized persons. These measures are set out in the Annex to this Agreement and can be adapted over time to changed technical and legal requirements by Audion, provided that compliance with the legal provisions ensures that the level of protection is appropriate and that the level of protection of the Annex to this Agreement is not fallen short of. Will

  1. Data terms

Upon completion of the services relating to the processing of such Data, Audion shall promptly return to the Client a copy of the entire Data in the same format as that used by the Client to communicate the Data to the Service Provider, or failing that, in a structured and commonly used format.


Once the return has been made, Audion shall destroy or anonymize the copies of the Data held in its computer systems within a reasonable period of time and must provide proof thereof to the Client within a reasonable period of time following the signature of the minutes.

  1. Data Protection Officer

Audion shall communicate to the controller the name and contact details of its Data Protection Officer, if it has appointed one in accordance with Article 37 of the GDPR.

  1. Register of categories of processing activities

Audion declares that it keeps a written record of all categories of processing activities carried out on behalf of the controller, including:

  • the name and contact details of the controller on whose behalf he is acting, any subcontractors and, where applicable, the Data Protection Officer;

  • the categories of processing operations carried out on behalf of the controller;

  • where applicable, transfers of personal data to a third country or international organization, including the identification of that third country or international organization and, in the case of transfers referred to in the second subparagraph of Article 49(1) of the GDPR, documents proving the existence of appropriate safeguards;

  • where possible, a general description of the technical and organizational security measures, including, inter alia, as appropriate:

    • pseudonymization and encryption of personal data;

    • means to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;

    • means to restore the availability of and access to personal data within appropriate time limits in the event of a physical or technical incident;

    • a procedure to regularly test, analyze and evaluate the effectiveness of technical and organizational measures to ensure the security of the processing.

  • Documentation

Audion shall provide the controller with the necessary documentation to demonstrate compliance with all its obligations and to allow audits, including inspections, to be carried out by the controller or another auditor appointed by them, and to contribute to such audits.

V. Obligations of the controller with regards to the subcontractor

The Client undertakes to:

  1. provide the subcontractor with the data referred to in section II of these clauses;

  2. document in writing any instructions regarding the processing of the Data by Audion;

  3. ensure, before and throughout the processing operation, that the Service Provider complies with the obligations laid down in the European Data Protection Regulation;

  4. supervise the processing, including carrying out audits and inspections of Audion.

All additions or amendments to this Agreement Order processing must be made in writing in accordance with Art. 28 (9) GDPR.