Koalys has developed an online platform for practitioners wishing to measure their patients' hearing. The system is based on
The user is expected to have an audiometric test room that meets the usual standards in the sector and is functionally in good working condition, as it is expected to have all the general equipment required for the proper operation of the Application.
The scope of cooperation is set more precisely in the Special Terms, it being understood that the Special Terms specify to which modules the User has subscribed, each time referring to a different service level.
The contractual documents, in descending order of priority, are as follows:
This access is granted in SaaS mode, including:
The Application is remotely accessible over the Internet and accordingly requires an active Internet connection, which shall be the User's responsibility after having been informed that the quality and speed are critical elements for optimal use.
Subject to compliance with the terms stipulated in this document, Koalys grants the User non-exclusive and non-assignable right of access to the Application.
Availability includes initial parameters for the Application, i.e. prior to first use. All later parameters shall be the subject of a separate agreement.
By parameters is understood the adaptation of the basic elements to the User's specific requirements, without rewriting all or part of the source code, by using the Application's current functions and programming them in accordance with the User's particular requirements. Programming of parameters does not include the development of special modules, the transfer of existing data to the implemented platform, nor the customization of the graphics and ergonomics of the Application.
The User will supply, at its sole responsibility, all information required for programming the parameters.
Authorized Users appointed as such by the User are the only ones to have access to the System, in accordance with the terms stipulated herein.
Authorized Users must, inter alia, prior to having access for the first time to the System, be trained by Koalys, which will only take place following activation of the accounts.
The Special Terms state the price of training.
The User has secure, encrypted access to the data, in HTTPS mode on a secure server.
The Application's access procedure and security are described in the Reference Document. The current Reference Document has been brought to the attention of the User, who confirms that the level and type of security measures satisfy it.
The Microphone can be made available to the User upon request.
This availability is without warranty and in accordance with the conditions specified in the Special Terms.
Prior to validation of its account, the User will have received, acknowledged and accepted the special technical features required for use of the System as stated in the Reference Document.
Compliance of the User's infrastructure is at its sole responsibility. The User acknowledges that development of the System and in particular of the Application might involve changes to the special technical features required for use.
Remote use of the Application absolutely requires that the User has access to a public telecommunications network that allows it to access an IT network that supports the standards employed by the Application. It is the User's responsibility to arrange said access to the communications networks.
It is expressly agreed that the future compliance of the User's IT installation (including its internal network) in terms of both hardware and software is the sole responsibility of the User and that it shall bear the expenses, including costs of migration from technical platforms related in particular to upgrades of the operating system and database management.
The User expressly acknowledges having been fully informed of the features of the System and confirms that Koalys has duly fulfilled its obligation of the provision of advice in this regard.
Information concerning developments of the system and in particular of the Application and the resulting technical special requirements required for optimum use, will be regularly published by Koalys on its website, by mail or any other medium of its choice, or by a new version of the Reference Document. The User undertakes to consult this information and to comply with it if necessary.
The User assumes responsibility for use of the System. It also assumes responsibility for use of the System by Authorized Users. It is expressly agreed that during use of the System, compliance with the identification procedure is valid and sufficient proof to establish with certainty that use is by an Authorized User of the User, for which it assumes responsibility.
The System is a diagnostic help tool and not an automated diagnostic. It does not replace the opinion of a practitioner or his/her experience. The User should accordingly not base its diagnosis solely on reliance on the system.
In the event of a claim or action against Koalys involving use of the System or any incident affecting the Data, the User fully warrants Koalys or possible subrogee for any conviction or penalty that might be ruled against it.
It shall be the User's responsibility if misuse has been permitted, whether its fault or not. The same shall apply in the event of theft or loss of means of access and/or identification, if the User will not have validly informed Koalys and allowed it to renew the means of access and/or identification within a reasonable time.
Koalys records accesses to the Application in a log file that holds the time and length of the connection, as well as the means of access and identification used. The User expressly accepts that this log file is sufficient proof determining with certainty that use of the Application was made by an Authorized User at its responsibility and that is sufficient to invoke the responsibility and the obligation of warranty referred to above. The log file is held by Koalys until it is certain that no claim will be made against it. The User accepts that it will be held for that period.
Koalys hosts all the User's Data on its servers or those of its suppliers and/or subcontractors.
The User's Data hosted on the servers of Koalys or its subcontractors remain the entire property of the User.
At any time during the contract period the User can obtain a copy of the Data in accordance with the methods and conditions stated in the Reference Document.
Koalys expressly warrants that neither it nor its subcontractors will access this Data and will not make any use of it, except:
Koalys carries out backup at least once per twenty-four hours.
In the event of data reconstitution through use of the Data backed up by Koalys, it will inform the User of the date and time of the available backup in order for it to re-enter subsequent data. The User cannot claim any compensation for the loss of subsequent data.
The User accepts in advance that in the event of an incident or claim, the possible reconstitution of data (its own or that of third parties) might cause a slowing down of the Application during the actual reconstitution and even unavailability. The User cannot claim any compensation for this reason.
In the event of termination of use of the Application for any reason, Koalys undertakes to transfer to the User, if it so requests, the Data in the state in which it was at termination.
This transfer will take place in the format and data structure selected by Koalys. The User cannot claim any adaptation of the export format of this Data.
In the event that the User does not request the return of the Data within twelve months from the date of actual termination of use, Koalys is authorized to destroy the Data.
The User has been informed that all or some of the services that are the responsibility of Koalys have been contractually awarded to an independent subcontract supplier, without any effect on the rights or obligations of the parties to this transaction. Koalys will limit its subcontractors to companies in its own country, in a member state of the European Union, or in a country whose level of personal data protection is acknowledged as adequate by the competent authorities.
The User and Koalys acknowledge that the Application might contain undiscovered and unidentified errors. Koalys undertakes to endeavor to correct these Errors as stated below.
Any Error must be notified to Koalys in an incident report that describes the circumstances and the effect. This report must be in writing (which can be electronic).
If applicable, the Error will be corrected by Koalys. In the event of a Blocking Error on a major function of the System, Koalys will supply at its choice, within 5 working days, either a workaround solution or an interim correction.
The User expressly accepts that Koalys, if it so wishes, may replace the current version of the Application with a new version.
The User accepts that the change of version of the Application may lead to a temporary suspension of the ability to use the Application and of access to the User's Data.
The User cannot object to an update of the version being used if it is free, even if the functional scope has been changed.
Koalys declares it is the holder of all the intellectual property rights applicable to the Application and is duly the holder of the user and/or operating rights for the third-party software required for its operation.
Throughout the period of use, Koalys grants the User a non-exclusive and non-transferable right of access and use for the Application, for which only Authorized Users may benefit.
Koalys does not grant the User any intellectual property rights in the Application, which remain the entire and exclusive property of Koalys. The User undertakes not to harm, whether directly or indirectly, the rights of Koalys and to take all steps required to ensure compliance with its ownership rights in the Application; it warrants compliance for its Authorized Users.
The User undertakes to only use the System and the information about it for its own purposes, purely for its professional activity, or for teaching purposes, in the event of the use of the System in a school or other educational institution.
The User undertakes not to develop or market the Application or products that might compete with it. It so warrants for its employees and subcontractors and is responsible for their actions.
Koalys undertakes to ensure the permanent security of the User's Data and security of access and use of the Application according to the methods described in the Reference Documents ad hoc. The Reference Document valid at the date of signature of this document has been brought to the attention of the User, who is satisfied with the measures described therein.
The Data contains personal data concerning the health of the person taking the hearing test. As a practitioner the User alone is responsible for handling the personal data used in the System. Koalys' role is exclusively that of a supplier of technologies, and a technology subcontractor to the User. Each party is responsible, insofar as it concerns it, compliance with applicable legislation for the handling of personal data, including the possible update of the declaration and/or prior authorization.
Each party declares having all the rights and authorizations required for compliance with its obligations, without limitation or reserve, in particular for each of the elements it will make available for the other party.
Koalys is subject to an obligation of means.
In the event of unavailability of the production environment of the Application related to a cause for which Koalys takes responsibility, the User will only be able to claim repair of any possible damage for as long as the downtime lasted, continuously during working hours, for a period of 48 hours from notification to Koalys by the User of the problem encountered.
In all events, Koalys cannot be held responsible and no compensation shall be due to the User:
In all cases, the responsibility of Koalys is limited, per annum, to an amount equal to 50% of the amounts paid annually to Koalys by the User in execution of the contract between the parties, even if the actual damage was greater.
Without derogating from the right to mention the User in the User references, both parties expressly undertake to comply and ensure compliance by their staff and various service providers with the strict principle of commercial confidentiality in respect of the other party and not to disclose to a third-party, whether for a fee or free of charge, in whatsoever form, any information about the other party, without the express written authorization of that party. Each party undertakes to comply with this material obligation throughout the period of execution of this agreement and for three years thereafter.
Each of the parties undertakes not to disclose to third-parties the concepts, ideas, know-how and technologies related to the Application and/or the handling of information made available by the other party in execution of this agreement.
Each party's responsibility shall be lifted in the event that it shall be impossible to execute its obligations in whole or in part on account of force majeure.
The parties hereby recognize the following as cases of force majeure: riots, total or partial strikes, internal or external to the company, lock-outs, extreme bad weather, electricity cuts or breakdowns of the public communications networks, epidemics, blockages of transportation or supply, for whatsoever reason, earthquakes, fires, storms, floods, water damage, governmental or legal restrictions.
It is also expressly agreed between the parties that the following events are cases of force majeure: the destruction of hardware, computer attacks or hacking, blocking in whole or in part of the networks, bandwidth, energy supply (such as electricity), cancellation or interruption, whether temporarily or permanently, and for whatsoever reason, of access to the Internet, to the means of telecommunications whose cause is outside the control of either party, juridical or regulatory restraining orders applying restrictions to the subject of execution of this agreement or to free circulation.
The current Reference Documents have been sent to the User, who has accepted them.
Any change, addition or replacement of a Reference Document will be notified to the User by Koalys using a medium of its choice.
In the event of a dispute on the general conditions of use, the French version alone shall take precedence over all others for the signatory parties.