Licence general terms and conditions of use software OCICal

[2021-07-29]

 

 

PREAMBLE

OLYTHE is a SAS company, with a share capital of €2,900,000.00, headquartered at 67 rue Fromentel 67000 Tours, France, registered in the Tours Trade and Companies Register under the number 791 392 236 (hereinafter referred to “OLYTHE”);

OLYTHE designs, produces and markets connected solutions in the field of human breath analysis. In particular, OLYTHE has developed a breathalyzer named “OCIGO” in order to meet the needs of general public and professionals. In this context, OLYTHE has also developed a software “OCICAL” which allows its Distributors to calibrate themselves the breathalyzers they sell to their own customers.

 

ARTICLE 1. DEFINITIONS

Anomaly : refers to any bug, failure, malfunction, issue, blockage, design or implementation defect, incompatibility, insufficiency and/or degration affecting all or part of the software. Anomaly must be attributable to the software. The anomalies are classified by OLYTHE according to three levels of severity : low, medium or critical.

Contract: refers to these Licence Terms and Conditions of Use (hereinafter the « LTCU ») to govern the provision by OLYTHE of the software to the Distributor

Distributor: refers to the professional distributor, acting for purposes within the scope of its commercial, industrial, craft, liberal or agricultural activity to the exclusion of any other purpose duly authorized by OLYTHE to use the Software under the terms of this Contract.

Data: refers to all of Distributor’s information and data, including any Personal Data, automatically entered or uploaded into the Software, or processed, modified or generated by or through the Software. Data is confidential information and remains the property of distributor.

Personal Data: refers to the Data which, in the sense of the Data Protection legislation, allow to designate or identify, directly or indirectly, a natural person.

Legislation regarding the Personal Data Protection : refers to all laws and regulations regarding the Personal Data Protection and applicable to either party in the context of the Contract and in particular, the European General Data Protection Regulation 2016/679 (« GDPR »), as well as the national legislation taken pursuant to the GDRP, including the French Data Protection Act of January 6, 1978 as amended

Software: refers to « OCICAL » software made available to the Distributor by OLYTHE whose characteristics are described in Annex 1

Parties: refer to the Distributor and OLYTHE together.

 

ARTICLE 2. PURPOSE

OLYTHE hereby grants the Distributor, who accepts it, a limited, personal, non-transferable and non-exclusive license to access and use the Software.

Any access to and use of the Software requires prior knowledge of the contract and implies irrevocable and unreserved acceptance by the Distributor.

 

ARTICLE 3. PRIOR DISTRIBUTOR INFORMATION

The Distributor acknowledges that he has received all the information and advice necessary to ensure the suitability of the Software for his own needs, in particular on the basis of the information provided in the user manual presented to him by OLYTHE.

 

ARTICLE 4. ACCESS CONDITIONS AND USE OF THE SOFTWARE

 

4.1 Installation

The Software is installed locally on the Distributor’s computer, for which the Distributor is fully responsible.

The delivery of the Software will be materialized by a download link sent to the Distributor by OLYTHE. The Distributor must then download the Software on his computer according to the instructions provided by OLYTHE.

Access to the Software is reserved exclusively for the Distributor and authorized for this purpose by means of identifiers communicated by OLYTHE or chosen by the Distributor concerned (hereafter the “Access Codes”).

 

4.2 Responsibility for connection settings

Access Codes to the Software are personal and confidential.

The Distributor undertakes to keep them securely and undertakes not to disclose them to third parties for any reason, in any way or in any form whatsoever.

If any of the Distributor’s identification elements are lost or stolen, the Distributor must inform OLYTHE without delay. OLYTHE will not be responsible for the loss, theft or forgetting of the Access Codes of the Distributor and/or their fraudulent use. The Distributor is solely responsible for the access and use of the Software with his Access Codes. The Distributor undertakes to inform the OLYTHE immediately of any unauthorized use of his Access Codes, and/or any breach of security of the Software of which he is aware.

 

4.3 Minimum system requirements

Generally speaking, all technical means, as well as telecommunication costs and associated costs enabling access to and use of the Software are the sole responsibility of the Distributor.

Access to the Software requires that the Distributor has a computer with a broadband internet connection and on which the Software is installed, which is accessible from the link provided by OLYTHE.

The Distributor’s computer must have an operating system up to date with the version specified by OLYTHE and meet the requirements communicated by OLYTHE. The Software may be updated to add new features and services. The later version of the operating system that may be required for the upgrade will be specified by OLYTHE.

 

ARTICLE 5. DISTRIBUTOR’S RIGHTS OF USE

OLYTHE grants the Distributor a personal, non-exclusive and non-transferable right to use the Software for its own internal purposes only. Use limited to internal requirement means any use by the Distributor solely for the purpose of setting up OCIGO breathalyzers for distribution.

Under the right of use granted by this license, the Licensee may permanently or temporarily reproduce the Software for the purpose of loading, displaying, performing, transmitting or storing the Software.

Distributor may make a backup copy of the Software, unless such copy is provided by OLYTHE. The Licensee shall have on the backup copy the same rights and obligations as on the licensed copy of the Software.

Other than and without prejudice of the rights granted in this Section above, Distributor is not authorized hereunder to :

• copy, print, transfer, transmit or display all or part of the Software;
• sell, lease, sub-license or distribute in any way the Software;
• modify the Software and/or merge all or part of the Software into other computer programs;
• Compile, decompile, disassemble, translate, analyze, reverse engineer or attempt to reverse engineer the Software, except to the extent permitted by law.

The Software shall be used by the Distributor in accordance with the terms of the Contract and the instructions for use, safety and proper operation contained in the documentation presented to the Distributor.

 

ARTICLE 6. ASSISTANCE – TECHNICAL SUPPORT

Free updates to the Software are regularly offered by OLYTHE.

OLYTHE has no obligation of intervention time concerning the correction of the Anomalies that may occur.

The Distributor can always request assistance from OLYTHE by posting his request in the support section of the OLYTHE website or by sending it to the following address: support@olythe.com. In this case, OLYTHE will consider the Distributor’s request as soon as possible.

 

ARTICLE 7. FINANCIAL CONDITIONS

The use of the Software is free of charge.

Any additional services provided by OLYTHE under this contract will be subject to a specific payment, according to OLYTHE’s standard financial terms.

 

ARTICLE 8. PROPERTY

 

8.1. Software Property

Distributor agrees not to remove or alter the copyright notice of the Software or any other document of any kind on which such notice appears.

The Software remains the full and complete property of OLYTHE. Distributor shall not directly or indirectly infringe OLYTHE’s intellectual property rights in the Software.

 

8.2. Data Protection

Distributor is the only owner of the Data processed under the Software.

It is reminded that the Distributor is solely responsible for the content of the Data stored in the Software. OLYTHE cannot ensure any verification of the content of the Data processed within the framework of the Software and cannot be held responsible for their possible illegal character, which the Distributor expressly acknowledges. As such, OLYTHE is released from any responsibility related to the content of this Data.

 

ARTICLE 9. SOFTWARE ARRANTY

The Software is considered in compliance with its documentation from the moment of its installation, if the latter is performed by OLYTHE. Otherwise, it is considered to be in conformity with its documentation from the date of its downloading by the Distributor on its servers.

Distributor acknowledges that it is not possible to guarantee that the Software will meet performance requirements or that it will operate without discontinuity or anomaly.

OLYTHE declares that a part of the codes of the Software was generated from Open-Source libraries referred to in Annex 2.

OLYTHE guarantees that it has previously verified in the royalty-free licenses it has used the extent of the rights granted to the users and that such licenses allow the Distributor to use the Software in accordance with article 5 of this contract.

 

ARTICLE 10. RESPONSIBILITY

 

10.1 Distributor Responsibility

Insofar as the Software is installed on computers managed by the Distributor, the Distributor is responsible for the possible loss of the Data and their modifications.

As such, the Distributor must ensure at its own expense a regular backup of its Data.

OLYTHE will not be responsible for the use and storage of the Data.

Suspension or termination of access to the Software for any of the reasons mentioned above shall not entitle OLYTHE to any compensation from Distributor.

In any case, Distributor guarantees OLYTHE against the consequences, particularly financial, of any recourse, action or condemnation to which OLYTHE could be exposed due to illicit Data that it would have hosted by the Software within the framework of the Contract.

 

10.2 OLYTHE Responsibility

 

OLYTHE undertakes to perform its contractual obligations with all possible care in use in the profession, ensuring the conformity of the Software to its documentation.

Due to the specificity of the Data processed by the Software, OLYTHE cannot ensure that the results of the Software are free of errors and expressly excludes its liability for any erroneous results.

OLYTHE shall not, to the extent permitted by applicable law, be liable for any direct or indirect damages of any kind (such as commercial of financial loss, or operating loss affecting the Distributor), nor for loss of profits, whether foreseeable of unforeseeable, claimed by Distributor or its customers (including, but not limited to, loss of Data, revenue, financial performance, interruption of use or availability of Data), resulting from breach or any express or implied warranty, misrepresentation or gross negligence by Distributor.

Furthermore, OLYTHE shall not be liable for any legal proceedings against the Distributor or for any unlawful use of the Software.

In addition, OLYTHE cannot be held responsible for the incorrect application of the advice given in the context of the assistance, nor the application of advice that does not come from OLYTHE.

OLYTHE cannot held responsible for the failure of the Distributor’s servers, for which it has full responsibility.

Any action brought against the Distributor by a third party constitutes indirect damage and therefore does not entitle the Distributor to compensation.

These provisions establish an allocation of risk between OLYTHE and the Distributor.

The price reflects this allocation as well as the described limitation of liability.

 

ARTICLE 11. FORCE MAJEURE

The execution by OLYTHE of all or part of its obligations will be suspended in case of a fortuitous event or force majeure which would hinder or delay the execution in accordance with Article 1218 of the French Civil Code and the jurisprudence in force.

This includes, but is not limited to, war, riots, epidemics, insurrection, social unrest, telephone or computer breakdowns or serious disruption of the security and coherence of the Internet network and strikes of any kind.

OLYTHE will inform the Distributor of any such fortuitus event or force majeure within 7 (seven) days of its occurrence. If this suspension of OLYTHE’S obligation continues beyond a period of 15 (fifteen) days, this Contract may be terminated by either OLYTHE or the Distributor, without such termination being deemed to be in default.

 

ARTICLE 12. DURATION

This contract shall enter into force on the date of signature by both Parties for a period of 1 (one) year, renewable by tacit renewal for the same period.

 

ARTICLE 13. TERMINATION

 

13.1. Termination by the Distributor

The Distributor may terminate the Contract by registered letter with acknowledgement of receipt:

• Within 3 (three) months prior to the renewal of the Contract.
• or in case of persistent malfunction of the Software for more than seven (7) calendar days making it impossible to access under normal conditions and directly attributable to OLYTHE, subject to a thirty (30) days notice.

If access to the Software is interrupted or disrupted, in whole or in part, by an external factor beyond the control of OLYTHE, such as a failure of the Distributor’s computer or an act of Force Majeure, early termination of the contract by the Distributor will be at fault.

 

13.2. Termination by OLYTHE

OLYTHE may terminate the Contract as of right, without prejudice to the right to seek compensation for its damage, in particular for:

• failure to comply with one of the essential obligations of the Distributor referred to in Articles 3, 4 and 5;
• non-compliance with the property rights referred to in Article 8;
• termination of the distribution contract at the initiative of either the Distributor or OLYTHE resulting from a breach of contract by the Distributor;

 

ARTICLE 14. CONSEQUENCES OF THE END OF THE CONTRACT

In the event of termination for any reason or at the end of the Contract, the Distributor agrees to uninstall the Software from its computers within seven (7) days and to provide OLYTHE with a written explanation. Failure to do so will result in Distributor’s liability to OLYTHE. The Distributor retains the Data which remains its exclusive property.

 

ARTICLE 15. INTUITUS PERSONAE

Distributor shall not assign or transfer to a third party any of its rights and obligations under this Contract without the prior written consent of OLYTHE. Indeed, this Contract is entered into by reason of the person of the Distributor’s officers and capital structure.

 

ARTICLE 16. MISCELLANEOUS PROVISIONS

 

16.1. Confidentiality

Data pertaining to the distributor are and remain the property of Distributor.

 

16.2. Waiver

The fact that the Distributor or OLYTHE does not avail itself of a failure of its obligations under the Contract shall not be construed for the future as a waiver of the obligation in question.

The Distributor irrevocably waives any claims, demands, rights or actions against OLYTHE relating to the execution of the contract made more than twelve (12) months after the occurrence of the event.

 

16.3. Entire contract

The Contract contains all obligations between the Distributor and OLYTHE. In case of difficulties of interpretation between any of the titles appearing at the head of the clauses, and any of the clauses, the titles will be declared non-existent.

No general or specific conditions included in the documents sent or delivered by the Distributor may be incorporated into the Contract, and a fortiori may contravene or alter its scope, with the exception of annex and additional Distributor orders accepted by OLYTHE.

Unless the exception has been particularly stipulated herein, the Contract may only be modified by an amendment duly signed by the persons authorized or mandated by the Distributor and OLYTHE.

 

16.4. Nullity

If one or more of the provisions of the Contract are held to be invalid or declared as such in application of the law, a regulation or following a final decision of a competent court, the other provisions shall remain all their force and scope.

 

16.5. Protection of Personal Data

The Distributor undertakes to comply with the applicable regulations concerning intellectual property, respect for privacy and more generally undertakes to comply with all regulations in force.

The provisions relating to the collection and processing of Personal Data relating to the Distributor by OLYTHE as data controller (login details) in the context of the use of the Software are detailed in the privacy policy in the Annex 3.

 

ARTICLE 17. APPLICABLE LAW – DISPUTE SETTLEMENT

 

This Contract is governed by French law, to the exclusion of any other foreign country.

In the event of any dispute arising between the Parties concerning the validity, interpretation, performance or non-performance, interruption or termination of this Contract, the Parties agree to cooperate diligently and good faith in order to find an amicable solution.

If no amicable solution within three (3) months, the courts within the jurisdiction of the Court of Appeal of Aix-en-Provence shall have sole jurisdiction.

 

 

 

ANNEX 1 : Software Description

 

 

1. Calibration mode

Only WET calibration mode is available.

DRY calibration mode is allowed.

 

2. Information about parameters stored in the OCIGO breathalyzer

When you connect an OCIGO breathalyzer to your PC via USB, the software displays:

• Its serial number
• Its calibration date

 

3. Filling in the raw values taken during the test of the breathalyzer

There are 1 column and 11 rows to write manually the concentration values of ethanol.

The column represents a given concentration. The 1st row corresponds to the nominal concentration values of ethanol for the gas used (reference). The next 10 rows allow you to enter the results displayed by the OCIGO breathalyzer during the calibration process.

 

4. Start the calibration of the breathalyzer

Once the values have been completed, press the “Start calibration” button and follow the instructions.

During the following step, the breathalyzer will be updated, and the new calibration parameters written in its memory. The new calibration date (today’s date + 1 year), as well as the new calibration coefficients are automatically displayed.

In case of inconsistency values, the software will not update the calibration parameters.

 

 

ANNEX 2: List of Open-source libraries used

 

 

Only 2 libraries are used: Qt 5.12

• Licence available for information at : https://doc.qt.io/qt-5.12/licensing.html)

– Signal11 – hidapi

• Licence available for information at : https://github.com/signal11/hidapi/blob/master/LICENSE.txt

 

 

ANNEX 3: PRIVACY POLICY OCICAL

 

The purpose of this Privacy Policy is to inform and present to Distributors of the OCICal Software how OLYTHE processes the personal data collected for the use of the OCICal Software as data controller.

OLYTHE collects and processes personal data about the Distributor who have an account on the OCICal Software:

• Personal data collected: Name, first name, email and login details of the Distributor
• Purposes of the processing: Manage the access and use of the Software by the Distributor in accordance with the contract
• Legal basis: Performance of the contract and Legal obligation
• Retention period: Retention: Duration of the contract
• Archiving period: 5 years from the date of termination of the duration of the contract for the purpose of establishing, exercising or defending a legal claim (limitation period)

The mandatory or optional nature of the data entry is specified at the time of collecting. The mandatory communication of certain personal data is necessary for OLYTHE to carry out the above-mentioned purposes.

 

Personal data recipients

Personal data is transmitted to OLYTHE employees in charge of the management of the contracts.

Unless required by law or court order, OLYTHE will never disclose, sell, rent or transmit the personal data collected to third parties. Personal data is hosted on OLYTHE’s servers.

 

Rights of the Distributor on his personal data

The Distributor has the following rights at all times with regard to their personal data:

• Right of access: to obtain confirmation of the processing of their personal data and a certain amount of information on the processing, it being understood that this information is in any case given in this personal data protection policy ;
• Right of rectification: to obtain the rectification of personal data when they are inaccurate or incomplete;
• Right to erasure (“right to be forgotten”): to obtain the erasure of personal data when they are no longer necessary for the purposes for which they were collected or when the Distributor objects to the processing of their personal data.
  The right to erasure is not enforceable in the cases provided for in Article 17.3 of the GDPR. In particular, the Distributor acknowledges and accepts that this right is not open to him/her as long as he/she wishes to use the platform and benefit from the subscribed services, as these personal data are necessary for OLYTHE to manage the contract.

• Right to the limitation of the processing : to obtain the limitation of the processing of his personal data in particular when the Distributor disputes the accuracy of the data, when the data conservation period has come to an end but the Distributor still needs to keep these personal data for the establishment, the exercise or the defense of a right in justice;
• Right to portability: to obtain the communication of the personal data that the Distributor has communicated to OLYTHE in a readable format, or to ask OLYTHE to transmit the personal data that the Distributor has communicated to another data controller;
• Right to object: to object at any time, on grounds relating to his/her personal situation, to the processing of his/her personal data based on OLYTHE’s legitimate interest, in particular in the event that such objection concerns commercial prospecting, unless OLYTHE has compelling reasons to do so.
• Right to lodge a complaint: to lodge a complaint with the National Commission for Data Processing and Liberties if the Distributor considers that the processing carried out by OLYTHE constitutes a violation of his/her personal data.
• Right to define the directives concerning the fate of his personal data after his death.

 

The rights of the Distributor on his personal data can be exercised at any time with OLYTHE:

• By email at the following address: contact@olythe.com.
• By phone at the following number: +33 (0)4 42 52 62 39
• By post at the following address Olythe SAS, 240 rue Louis de Broglie, 13100 Aix-en-Provence, France
• On the contact form on the website www.olythe.io