The collection and processing of Personal Data, carried out when you use the Services, is carried out in accordance with Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (the “General Data Protection Regulation” or GDPR). You have the right to access, modify, rectify and delete data concerning you at any time. To exercise this right, you just have to send your request by post or by email to DOMOHEALTH’s head office:
EPFL Innovation Parc, Bât. D,
Personal Data that you provide as a result of registering or accessing the DOMOHEALTH Services:
We collect Personal Data when you register on our Site or Mobile Software and create your account. This Personal Data includes the email address and the DOMOHEALTH password. Except in the context of an order to purchase a product on our Site, we do not collect any information related to your credit card or any other financial information. We also collect information when you install a DOMOHEALTH Product, such as the location of the installation. We collect Personal Data or Measures when you use DOMOHEALTH Products and Services. We may also collect Personal Data or Measures through the automated means we use to monitor or operate the Services, such as, but not limited to, information about your Product, its capabilities and applications, how you use it, your activities related to the Services, your activity on the application, your IP address, your browser, your unique advertising identifiers (i.e. ‘ad-ID’ or ‘IDFA’), etc.
Our Services have optional features that require us to collect additional information when you use them. If you choose not to provide the information required to use a feature, you will not be able to use that feature. For example, you cannot share your location with your contacts if you do not allow us to collect your location data on your device. The data involved is: location, steps and contact access. You can manage permissions in your Settings/Settings menu on Android and iOS devices.
Personal Data you provide through other uses of the Services: we collect Personal Data when you access the DOMOHEALTH Services and/or any other part of the Site and you choose to provide Personal Data through the Site. For example, we collect Personal Information when you complete a survey, register for a promotional or special offer, send us an email message, participate in a forum or online community, customize the Services.
We use your Personal Data and Measures only for the purposes below:
Performance and monitoring of the Services: we use your Personal Data so that you can access the Services and so that we can ensure and monitor the use you make of our Services. As part of the Services, we may use your Personal Information to provide you with personalized analysis and advice. We also give you the opportunity to store, review and edit your Personal Information or other information on our Site.
Surveys, Contests and Other Special Offers: From time to time, we offer our users the opportunity to participate in surveys, contests and other special offers. If you provide us with Personal Information in connection with such surveys, contests or other special offers, that Personal Information will be used only for such purposes.
Questions and requests: If you contact us by email or other means, we will use the Personal Information you provide to respond to you or to resolve your concern.
Communication about Products, Services and Events: When you register with DOMOHEALTH Services to receive information, you agree that DOMOHEALTH may use your Personal Information from time to time to contact you in the future and keep you informed about products, services and events that may be of interest to you. These communications will be made with the possibility of declining your participation at any time, upon request.
Research and Data Analysis: In order to understand and meet the needs of the users of our Site and Services, DOMOHEALTH regularly conducts research on the profile, interests and behaviour of its users, as well as on the measurements made by the Product. This research is based on anonymised data, metrics and other information. This research may be collected and analysed as raw data or in aggregate form and DOMOHEALTH may share this anonymised data with advertisers, researchers, business partners, publications or any other third party. This data will not be able to identify you and therefore will not be considered Personal Data.
Improving the Services: We may use your anonymized Personal Data, anonymized aggregated Personal Data or other anonymized data collected through the Services to help us improve the content and functionality of the Services, to better understand our users and to improve our Services.
We may share your application usage data associated with your mobile identifier with providers (refer to Chapter 13, Definition) that comply with the Personal Data Regulation ‘GDPR’, in order to improve the use and reliability of our products and applications.
DOMOHEALTH’s use and transfer of information received from Google APIs to any other application will be in accordance with the Google API Services User Data Policy, including the Limited Use Terms.
We may use your mobile advertising ID to evaluate and improve our advertising campaigns, with the support of partners who ensure the privacy of the data exchanged.
Orders: we may use your Personal Data collected through our Site to respond to orders for Products that you may place through the DOMOHEALTH Services. Notwithstanding anything to the contrary herein, we will use your credit card and other financial information for the sole purpose of processing and fulfilling the order.
We consider that respect for your Personal Information and your privacy is central to the relationship between us.
We inform you, without diminishing your rights, that certain Personal Information and Measures may, under certain circumstances, be shared with and used by third parties in the following circumstances
Business Transfers: As we develop our business, we may buy or sell certain businesses or assets. In the event of a sale, merger, reorganization, dissolution or other similar arrangement, Personal Data may be part of the assets transferred.
DOMOHEALTH Internal Operational Functions: DOMOHEALTH, like many other companies, sometimes uses other companies to perform certain internal operational functions, such as mailing, maintaining databases, auditing the Services, etc. When we use another company to perform these functions, we will use the services of a third party. When we use another company to perform such a function, we only provide them with the information they specifically need for their tasks and ask our service providers for commitments similar to those made by DOMOHEALTH to you; this information is used only for DOMOHEALTH’s internal needs, under DOMOHEALTH’s control.
Legal requirements: DOMOHEALTH may disclose Personal Data if required to do so by law or in the good faith belief that such disclosure is necessary to (i) comply with a legal obligation, (ii) protect or defend the rights or property of DOMOHEALTH, (iii) act in urgent circumstances to protect the personal safety of the users of the Site or the public, or (iv) protect against legal liability.
Third parties upon action or authorization of the User: if you decide to share your Personal Data or Measures on other platforms than our Site, such as, but not limited to, social networking sites, or to make your Personal Data or Measures available to all, other users as well as third parties, you must be aware that these Personal Data or Measures you have decided to share may be used by any third party.
Anonymised Personal Data: As described above, we may share information about your Personal Data that does not take the form of Personal Data. For example, we may share aggregated, raw or anonymised data with advertisers, researchers, business partners, publications or other third parties.
The Personal Data collected will be kept for the following periods:
Data necessary for the operation of your product and related services:
User and identification Data is kept for the duration of the customer relationship.
Anonymised Data relating to connected products is kept for 5 years after the end of the customer relationship.
Connection Data is kept for 3 months.
Customer Support Data is retained for the duration of the customer relationship.
Online Shop Data is retained for the duration of the customer relationship except for purchase data which is retained for the applicable legal period.
Email Data for marketing purposes is retained until users unsubscribe.
Survey Data is anonymised.
Competition Data is retained for 2 years.
Note: The end of the customer relationship is formalised by an explicit request from you to firstname.lastname@example.org to delete your user account.
You have a right of access, rectification and opposition to the Personal Data concerning you, by making a written and signed request, accompanied by a copy of the identity document with the signature of the holder of the document, specifying the address to which the reply should be sent or by sending an e-mail to email@example.com which may ask you to confirm your identity.
You may use the Site without providing any Personal Data. However, if you decide not to provide Personal Data, you may not have access to certain areas of the Site, and/or you may not be able to use certain DOMOHEALTH Services or Products which require for their operation the communication of certain data, such as geographical position, temperature measurements etc. You have the choice of whether or not to allow us and/or third parties to contact you with their products, services and/or events that may be of interest to you. You can control all your choices by accessing the ‘My Account’ section of the Site.
DOMOHEALTH takes reasonable steps to protect your Personal Data provided through the Site from loss, misuse, unauthorized access, disclosure, alteration or destruction. However, no transmission via the Internet or email is ever completely secure or error-free. In particular, we cannot guarantee the security of e-mail sent to or from this Site. We therefore urge you to exercise extreme caution when sending information to us via email or internet transmissions. Please take this into account when disclosing Personal Information on the Site.
You may contact us at the following address: firstname.lastname@example.org.
Supplier: A Supplier performs a service for DOMOHEALTH with particular specifications of DOMOHEALTH and is a subcontractor, according to the GDPR.
Partner: A Partner provides a service to DOMOHEALTH and is also a data controller, according to the GDPR.
GDPR: General Data Protection Regulation
The French text is the authentic text. The English version is a translation
The T&Cs govern the Client's rights and obligations with respect to DOMO's provision and Customer's access to and use of the services specified in the Order Form (the Services), including the provision of the "Domo.health Pro Platform" (the Platform) as a SaaS offering (the SaaS Services), with the functionalities, modules and limitations specified in the Order Form.
b. User Categories
The Platform may be used by the following categories of users: (i) the Customer; and (ii) the Customer's employees who have been authorized to use the Platform by the Customer (together, the Users). Unless otherwise specified, the provisions of the T&Cs apply to all Users.
c. No other obligations
DOMO has no obligation to provide any services, products, licenses or software that are not expressly specified in these T&Cs or in the Order Form.
By subscribing, creating an account or logging into the Platform and/or signing an Order Form, the Client expressly agrees to be bound by the terms of the T&Cs.
For the avoidance of doubt, if the Client is a legal entity, any subscription to the use of the Services by any of the Client's employees, agents or representatives, on behalf of the Client, shall be deemed to be acceptance of the terms of the T&Cs by the Client. Any person subscribing to the use of the Services or using them on behalf of a legal entity represents and warrants that they are duly authorized to do so.
Subject to the Client's compliance with all the terms and conditions of the T&Cs, and in particular the payment of the applicable Fees, DOMO undertakes to provide the Services. The Services may include, if and to the extent provided for in the Order Form: (i) the Integration Services in accordance with Art. 3(ii) Maintenance and Support Services pursuant to Art. 7and/or (iii) the Additional Services described in the Order Form.
b. Obligation of means
By default, DOMO is only bound by an obligation of means for the provision of the Services. DOMO will provide the Services in accordance with business usage, with the care and diligence required of a similar service provider.
c. Obligation of result
DOMO has an obligation of result only if such an obligation is expressly provided for in the Order Form for Deliverables and if their Specifications (as these terms are defined in art. 4.a) are described in the Order Form. In this case, the provisions of Art. 4 apply.
DOMO will endeavor to provide the Services within the timeframes set forth in the Order Form. However, if the agreed deadlines are not expressly stipulated as binding in the Order Form, they are only indicative.
3. INTEGRATION & CUSTOMIZATION
The integration services provided by DOMO are detailed in the Order Form and may include, but are not limited to, the initial configuration of the Platform in the customer's environment, data migration, testing and training, and any Customer-specific development (the Integration Services).
DOMO will provide Integration Services if and to the extent provided for in the Order Form. DOMO may also agree to provide additional Integration Services that are not described in the Order Form on a time-sensitive basis, in which case DOMO will notify Customer prior to providing the applicable Integration Services.
c. Client's obligations
The Client has the following obligations (in addition to those specified in Art. 8) with respect to the provision of the Integration Services: (i) provision of the IT infrastructure and personnel necessary for the provision of the Integration Services; (ii) access to (test) data and provision of Customer data in the specified format for the implementation of the data migration; (iii) rapid implementation of interim tests and interim decisions in accordance with the project plan; and (iv) acceptances and partial acceptances of the Deliverables. Delays on the Client's side and additional work for DOMO caused by incorrect or late performance of the Client's obligations will be invoiced to the Client.
The Integration Services are deemed to have been completed and accepted at the latest at the beginning of their implementation within the Platform.
If the Purchase Order expressly identifies one or more specific items to be delivered by DOMO ( Available) and if the technical specifications of such Deliverables (Specifications) have been established by the Parties and approved by DOMO, these Deliverables constitute an obligation of result for DOMO. The provisions of this art. 4 apply only to Deliverables with an obligation of result.
Immediately following the delivery of any Deliverable, the Client shall verify whether such Deliverable contains any material non-conformities with respect to its Specifications which have an effective adverse impact on its use by the Client (Major Defects).
If any of the Deliverables contain Major Defects, the Client must notify DOMO in writing within a maximum period of 10 days from the date of delivery of the Deliverable, subject to a longer period expressly agreed in writing by the Parties. In its notification, the Client must provide a detailed description of the alleged Major Defects.
DOMO will correct Major Defects at no additional cost and within a reasonable period of time. Customer shall provide DOMO with such additional information and assistance as DOMO may reasonably require to correct the Major Defects, at no cost to DOMO. If, after two unsuccessful attempts, the third acceptance test fails again, Customer shall be entitled to continue to demand rectification of the Deliverable or to terminate the Agreement and claim reimbursement of any Fees paid to DOMO, to the exclusion of all other remedies.
If the Client has not notified DOMO of Major Defects within 10 days of the date of delivery of a Deliverable, or within a longer period expressly agreed in writing by the Parties, or if the Client begins to use a Deliverable, such Deliverable shall be deemed to have been accepted without reservation, and Art. 4.d no longer applies. If Customer requests changes to Deliverables that have already been accepted and DOMO agrees to provide such services, the additional services will be billed separately.
f. Minor defects
If the execution of an acceptance test reveals defects that are not considered Major Defects, the Client must accept the Deliverable. As a general rule, these defects will be corrected within the scope of the Maintenance Services (as defined in Art. 7.b), unless otherwise agreed in writing by the Parties.
g. Single Recourse
The right to claim correction of any Major Defect at no additional cost, pursuant to Art. 4.d, is Customer's sole and exclusive remedy and, to the extent permitted by applicable law, Customer expressly waives any other remedies it may have, including the right to claim a reduction in Fees and the right to have a third party correct any Major Defect or other non-compliance with DOMO's fees.
5. ACCESS AND USE OF SAAS SERVICES
Subject to the Client's compliance with all the terms and conditions of the T&Cs, in particular the payment of the applicable Fees and compliance with the limitations specified in Art. 8.b, DOMO grants Customer, during the Total Period, a revocable, non-exclusive, non-transferable right to access and use the SaaS Services, including the Platform and the content displayed on or generated by the Platform (the Content), without having the right to grant sub-licenses and in strict accordance with the T&Cs and the documentation provided by DOMO, on its own behalf and for internal purposes only. For the avoidance of doubt, Customer shall not modify or prepare derivative works based on the SaaS Services, nor may it copy or reproduce the SaaS Services, except as expressly specified in the Order Form.
b. Authorized Users
Also subject to the limitations set forth in the Order Form, Customer will use the SaaS Services through its own employees, agents and/or representatives who need access to the SaaS Services only ( Authorized Users), and will take appropriate steps to ensure compliance with the Agreement by such Authorized Users. Customer is expressly prohibited from using the SaaS Services on behalf of or for the benefit of third parties, or from sublicensing the SaaS Services to third parties, without the express prior written consent of DOMO.
Customer shall use the SaaS Services for its own business purposes only through its Authorized Users, and will take appropriate steps to ensure compliance with the T&Cs by such Authorized Users.
If the use of the SaaS Services is subject to specific restrictions (e.g., limited number of concurrent users or devices, named users, or other limitations), as specified in the Order Form or in the documentation provided by DOMO, Customer shall use the SaaS Services in strict accordance with such restrictions.
d. Limited Licenses
If specified in the Order Form, and always subject to Customer's compliance with all other terms of the T&Cs, DOMO may make the SaaS Services available under limited licenses, subject to the following additional conditions and limitations:
Trial Period: If specified in the Order Form, the SaaS Services may be made available [free of charge/at a discounted rate] for a limited period of time - at which time the license will automatically be converted to a full license - exclusively for the purpose of evaluating the Platform for the acquisition of a full license, excluding any commercial use.
Beta Services: DOMO may make Beta Services available to Customer at no additional charge. Beta Services are new or different services, or features thereof, made available to customers for testing and evaluation purposes, such as pilot releases, limited releases, early access, etc. and are clearly designated as a beta version or by a similar description. Customer may choose to use these beta services at its sole discretion. Beta Services are for evaluation purposes and not for production use, are not fully supported, and may be subject to additional terms and charges that may be presented to Customer. The Beta Services are provided on an "as is" and "as available" basis without any warranties, support, maintenance, storage, service level agreements, or indemnification obligations of any kind. For the avoidance of doubt, all of Customer's restrictions and obligations under the Agreement also apply to the Beta Services. DOMO may discontinue the Beta Services at any time, in its sole discretion, and may never make them available to the public.
e. SaaS offer
The Platform is provided as a SaaS (Software as a Service) offering. Consequently, DOMO only grants the Client a right to access and use the Platform and does not provide the Client with any copy of the Platform.
If, as part of the Services, DOMO customizes, develops, or makes available additional features for the Platform and/or Content, or provides patches, bug fixes, updates, or upgrades to the Platform and/or Content (Developments), such Developments will automatically become part of the SaaS Services, unless DOMO provides otherwise.
Customer acknowledges that DOMO may make changes to the Platform or Content, including changes to the look or functionality of the Platform, and that DOMO shall have the absolute right to remove any Content from the Platform or modify the functionality thereof in its sole discretion.
6. ACCOUNT & CREDENTIALS
In order to access the Platform, each Authorized User must have created a personal account (the Account) and be logged in to that Account.
Customer warrants that all information provided by Authorized Users as part of the registration process or otherwise is true and accurate. Customer shall ensure that Authorized Users keep such information up to date at all times.
If DOMO issues credentials to Users, such credentials shall be used exclusively by the Authorized Users for whom such credentials were issued, on behalf of and for the benefit of Customer. If the Credentials are issued to the Customer without specifying the relevant Users, such credentials may be used by any Authorized User, strictly on behalf of and for the benefit of the Customer.
Customer is responsible for the confidentiality of the identifiers issued by DOMO and shall immediately notify DOMO of any loss or unauthorized disclosure of such identifiers, which shall then be deactivated and replaced by DOMO. DOMO may charge a fee for the replacement of any identifier.
Customer shall maintain an up-to-date list of Authorized Users, which Customer shall make available to DOMO upon request without delay.
7. MAINTENANCE & SUPPORT
a. Availability of SaaS Services
DOMO will endeavor to maintain the availability of the SaaS Services, but does not guarantee their full availability.
Service levels and any service credits in connection with the SaaS Services are only agreed to by DOMO if expressly provided in the Order Form, in which case it must contain a Service Level Agreement (SLA).
b. Services de Maintenance
In providing the SaaS Services, DOMO will continuously seek to identify and resolve issues that may adversely affect the proper functioning and availability of the SaaS Services (the Maintenance Services). These Maintenance Services include repairs (rectification of defects and errors to restore functionality) and maintenance (to maintain the functionality of the SaaS Services).
The Customer is not entitled to claim a specific development, adaptation or improvement of the SaaS Services as well as additional services (which may, however, be provided pursuant to Art. 7.c). DOMO welcomes feedback and undertakes to take into consideration the requests for development made by the Client, but does not commit to the fulfilment of these requests.
As a general rule, the Maintenance Services are deployed on a "Zero Downtime Deployment" basis. However, DOMO does not exclude that the deployment of the Maintenance Services may result in a total or partial unavailability of the SaaS Services and DOMO does not give any guarantee to the Customer with regard to the availability of the SaaS Services during the deployment of the Maintenance Services.
As part of the Maintenance Service, DOMO will provide technical assistance services for the notification and correction of defects or errors affecting the SaaS Services (Support) only to the extent such Support is provided in the Order Form. Support is available between 8:00 a.m. and 6:00 p.m. CET on business days (at DOMO's headquarters) via email and/or phone.
8. CLIENT'S OBLIGATIONS
a. Payment of Royalties
Customer shall pay the fees set forth in the Order Form or by any other appropriate means (e.g., the fee schedules provided to Customer by DOMO) (the Royalties), in accordance with the conditions set out in Art. 12.
b. Correct use
Customer shall comply with, and shall cause its Authorized Users to comply with, at all times all laws and regulations applicable to the use of the Services, as well as the terms and limitations of any license or other right granted, as set forth in the Agreement or in writing by DOMO. In particular, Customer and Authorized Users shall not, without the prior consent of DOMO, and whether during or after the Total Period: (i) use the Services for any unlawful purpose (ii) use the Services on behalf of or for the benefit of third parties; (iii) attempt to copy, modify, create derivative works from, republish, transmit, distribute or make available or disclose to third parties (other than authorized users) all or any part of the Services, Content, Platform or their infrastructure; (v) access the source code of the Platform, attempt to reverse compile, disassemble, reverse engineer, or reduce to a human-perceivable form all or any part of the Platform or its infrastructure; and (vi) access or use any portion of the Services for the purpose of building a competing product or service or copying their features or user interface.
c. Client's Infrastructure
Customer shall procure and maintain at its own expense an infrastructure that complies with the minimum requirements for the use of the Platform, as specified from time to time by DOMO in the Platform documentation.
e. Licenses & Permissions
Customer must retain all necessary permits and licenses to use the Services.
f. Single point of contact(s)
If specified in the Order Form, Customer will make available to DOMO a person(s) as a single and trusted point of contact to (i) provide information about Customer's activity, as may be required by DOMO for the provision of the Services and to ensure effective communication (including in connection with technical support or user manual questions), and (ii) billing-related questions and communications.
Customer shall provide DOMO with all assistance and information reasonably required by DOMO for the proper performance of the Services. In particular, the Client shall:
i) spontaneously provide any information necessary or useful for the proper performance of the Agreement of which it is aware;
ii) provide DOMO with access to its premises and infrastructure, if such access is necessary or useful for the proper implementation of the Agreement, or for the verification of such implementation, and provide it with adequate means and resources (e.g. serviced offices, network, access, etc.); and
iii) comply with all instructions and/or guidelines from DOMO in connection with the Services.
The SaaS Services may contain tools that allow DOMO to verify the Client's compliance with the T&Cs and DOMO has the right to temporarily or permanently suspend access to the Services and the Platform and/or to deactivate any identifier issued for the use thereof in the event of non-compliance with the T&Cs.
In addition, DOMO has the right to verify the Client's compliance with the Agreement once a year during normal business hours. The Client undertakes to provide free of charge all assistance and information necessary for the purposes of this audit. If an audit shows that Customer has exceeded the metrics or other limitations specified in the Order Form, Customer shall pay the difference between the Fees actually paid (if any) and the Fees that should have been paid, plus 5% interest, from the first fee exceeded. In this case, the Client will also have to pay the costs incurred for the audit. The right of termination provided for in Art. 19.d is also applicable.
j. Customer Default
In the event that Customer fails to comply with its obligations set out in the T&Cs or in the Order Form, DOMO shall be relieved of its obligations under the Agreement and shall not assume any liability in this regard (without prejudice to DOMO's other rights under the Agreement).
9. CUSTOMER DATA
Customer and its Authorized Users may provide documents, information, and other data through the use of the Services and the Platform ( Customer Data).
Subject to Art. 10.b and 13.c, between the Parties, the Customer Data is and remains the sole and exclusive property of the Customer and nothing in the T&Cs shall be construed as a transfer of ownership of the Customer Data to DOMO.
c. Use of Customer Data
Customer grants DOMO a non-exclusive, worldwide, royalty-free, irrevocable license to use Customer Data for the sole and exclusive purpose of providing the Services or improving the Platform, including for collecting, processing, storing, using, generating, anonymizing, modifying, creating derivative works from, displaying, translating, sublicensing, and transferring Customer Data to third parties, as well as the training of algorithms using Customer Data, only to the extent necessary for the aforementioned purposes. For the avoidance of doubt, DOMO will not sell or otherwise trade Customer Data.
The Client warrants (i) that it has valid grounds and, where applicable, that it has obtained all required authorizations and consents for the processing of Customer Data under the T&Cs, and (ii) that the Customer Data does not infringe any law or regulation, the T&Cs or the rights of a third party. DOMO may remove any Customer Data that DOMO believes violates this warranty.
e. Deletion and Return of Customer Data
Upon termination of the Agreement, DOMO shall, within a reasonable period of time following a written request from Customer, provide Customer with a final extract of the Customer Data and permanently delete or anonymize any copies of Customer Data still under its control. In any event, DOMO is entitled to permanently delete or anonymize Customer Data (i) 60 days after termination or non-renewal of the Agreement or (ii) if an Account has been inactive for 12 months or more.
10. INTELLECTUAL PROPERTY
In the relationship between DOMO and the Client, DOMO is and remains the sole owner of all rights, titles and interests, registered or unregistered, arising from any national or international legislation, on copyright, databases, trademarks, domain names, designs and patents, know-how, confidentiality and/or trade secrets, and all other intellectual property rights or similar proprietary rights of any kind (Intellectual Property Rights) in the Services (including, for the avoidance of doubt, any Deliverables, Developments, the Platform and Content), except only for Customer Data. Nothing in the T&Cs shall entail an assignment or transfer of the Intellectual Property Rights to the Client.
b. Usage data
Domo owns all rights and title to, and may freely use for any purpose (including, without limitation, data mining, benchmarking and analysis, or to develop and market new services), any data or information (i) collected, processed, developed, produced or obtained from cookies or other tracking and analytics technologies present on the Platform (including all tracking data related to users), (ii) relating to Customer's access to and use of the Platform by Customer and Authorized Users or other Users, including, among other things, the number and duration of visits and, (iii) provided that reasonable efforts are made to remove any reference to Customer and any identifiable person, all data entered by Authorized Users (Usage Data).
c. Notice of Violation
If Customer becomes aware of a breach or imminent risk of infringement of any Intellectual Property Right relating to the Services, Customer shall immediately notify DOMO and provide DOMO with all relevant information about such infringement or risk of infringement. DOMO has the sole authority to decide on the action to be taken in response to such breach or risk of breach. Customer shall provide DOMO, at its own expense, with all reasonable assistance required by DOMO to protect its Intellectual Property Rights, in accordance with Customer's instructions.
d. Infringement of Intellectual Property Rights
If DOMO is prevented from providing the Services due to claims of Intellectual Property Rights of third parties and such impediment is not removed within 30 days, or if the Client is found, in a final decision of a court of competent jurisdiction not subject to appeal, to have infringed or misappropriated Intellectual Property Rights of third parties due to the use of the Services, DOMO undertakes, at its own expense, to (a) obtain for Customer the right to continue to use these Services; (b) replace or modify such Services in such a way that they do not infringe or misappropriate the Intellectual Property Rights of third parties and that the Customer may use them freely; or (c) if DOMO is unable to make any of the foregoing approaches or determines, in its reasonable judgment, that it is commercially unreasonable to do so, DOMO may terminate the Agreement with immediate effect, by refunding to Customer all Prepaid Fees for the period during which Customer is unable to use the Services, which is the Client's sole and exclusive remedy.
Customer expressly acknowledges that any infringement of DOMO's Intellectual Property Rights will cause irreparable harm to DOMO, for which monetary damages may be inadequate, and that DOMO may therefore seek injunctive or other relief provided by law in any jurisdiction, in the event of a breach.
11. THIRD-PARTY CONTENT
The Services may contain content and/or software components embedded in or provided with the Services, developed, distributed, and/or licensed by third parties (Third Party Content). Such Third Party Content is licensed, and Customer must use it in strict compliance with the applicable terms and conditions with the relevant third party. DOMO will endeavor to identify any Third Party Content in the documentation of the Services.
b. Open source software
Nothing in the T&Cs shall restrict, limit or affect in any way the rights or obligations that the Customer may have, or the conditions to which it may be subject, under any open source software license applicable to any free software that may be incorporated into and/or provided in conjunction with the Services.
12. FINANCIAL CONDITIONS
Fees are due and payable in advance, on a monthly basis (unless otherwise specified in the Order Form), and non-refundable upon termination. Additional charges incurred in connection with DOMO's provision of the Services, or Customer's use of the Services, are billed on a monthly basis, and must be paid within 30 days of the invoice date.
DOMO's Fees and Rates are exclusive of taxes (including VAT).
Payments are made by bank transfer to DOMO's bank account, as indicated to the Client.
d. Suspension of Services
Customer's continued use of the Services is subject to timely payment of all Fees. DOMO may temporarily cease providing the Services if Customer defaults on payment of the Fees due.
e. No compensation
Customer is not entitled to set off any amounts owed by DOMO to Customer against any Royalties due to DOMO, subject to the prior express written consent of DOMO.
Changes to the Fees, if any, will be effective from the next Renewed Term, subject to 4 months' written notice from DOMO. If Customer's Fee template is no longer available, the Fee template will automatically be transformed into the closest existing Fee template as of the Renewed Term, as indicated by DOMO in its notice to Customer. Notwithstanding the foregoing, DOMO reserves the right to discontinue support for an existing Royalty model at any time without notice.
13. DATA PROTECTION
If the provision of the Services involves the processing by DOMO of (i) personal data transmitted by the Customer or Authorized Users (Customer Personal Data), in particular in connection with Customer Data, or (ii) personal data relating to Usage Data (Personal Usage Data)), DOMO and Customer will fully comply with their respective obligations under applicable data protection laws and regulations.
b. Roles of the Parties.
In such cases, DOMO will process the Customer's Personal Data (i) as a processor, exclusively for the purposes agreed in the T&Cs and only to the extent necessary to fulfil the obligations set out in the T&Cs, in accordance with the instructions of the Customer, who will act as the data controller; and (ii) for DOMO's legitimate business operations related to the provision of the Services. DOMO will process Personal Usage Data as the sole controller of such data.
c. Obligations de DOMO
DOMO undertakes to comply with Swiss data protection legislation and to obtain the Client's prior consent in the event of subcontracting the processing of the Client's Personal Data. DOMO only undertakes to comply with the obligations relating to the General Data Protection Regulation (GDPR) if expressly stated in the relevant Order Form.
DOMO will not process Customer Personal Data for its own purposes. Notwithstanding the foregoing, Customer acknowledges and agrees that DOMO may use Customer Personal Data received in connection with the performance of the Agreement for its own purposes to the extent that cumulatively (a) DOMO fully complies with applicable laws and regulations in this regard, (b) Customer Personal Data is fully anonymized by DOMO or is aggregated in such a way that a re-identification of the individuals affected by the personal data in question does not (c) its use is made for statistical, research or development, benchmarking, archiving or other purposes not related to particular individuals, (d) DOMO agrees and acknowledges that it processes such data as the sole controller with respect to all processing of personal data for such purposes and (e) any results will be published in a form that does not identify the subject of the personal data in question.
d. Obligations of the Client
Customer shall ensure, with respect to all Customer Personal Data processed by DOMO in connection with the Services, that such data has been collected and transferred to DOMO in strict compliance with applicable data protection or data privacy laws and regulations. In particular, the Client must:
i) have and maintain at all times valid grounds for the processing of such personal data, including obtaining valid consent from data subjects for the processing of their personal data, if such consent is required under applicable data protection legislation; and
ii) provide data subjects with adequate information on the collection and processing of their personal data.
The Client is solely responsible for the processing of its personal data, if any, in connection with the Services. Customer acknowledges and agrees that DOMO considers any processing of Customer Personal Data in connection with the Services, as permitted under the Agreement, as well as any instructions from Customer relating to such processing activities to be in compliance with applicable data protection or data privacy laws and regulations.
By accepting the T&Cs, Customer expressly acknowledges and agrees that Customer Personal Data or Personal Usage Data may be transferred to and processed on servers located outside of its jurisdiction, including in jurisdictions that may not have data protection and privacy laws and regulations equivalent to those in Customer's jurisdiction.
DOMO may forward to Customer any request, request, inquiry, or other action from a supervisory authority and/or third parties (including data subjects) directed against DOMO with respect to the processing of Customer Personal Data, and it is Customer's responsibility to respond to such requests in accordance with the law. If DOMO is required to take compliance action itself, for example by responding to a request from a supervisory authority or third party and/or by cooperating with investigations, and/or providing assistance to the Customer, the Customer shall fully indemnify DOMO for its efforts and costs, including reasonable attorneys' fees, incurred in this context. Queries, requests, inquiries or actions relating to Personal Usage Data will only be processed by DOMO.
The Parties may agree, in a separate agreement or contract or in any other document, specific provisions regarding the processing of the Customer's Personal Data in connection with the Services, in which case such provisions shall take precedence and replace this art. 13.
Confidential Information means any information disclosed by either Party (as the context the Disclosing Party) to the other Party (as the context may be, the Recipient Party), directly or indirectly, in writing, orally or through inspection of tangible objects, which is designated as "confidential", or any other similar designation, or which may reasonably be considered to be of Confidential. Confidential Information includes the content of the Agreement (but not the fact that the Parties are cooperating together), all information about the Disclosing Party's activities and operations, and, more generally, all information relating to or held or controlled by the Disclosing Party that the Recipient Party will become aware of in connection with the performance of the Agreement. The Platform, Content, Services, Deliverables, and all Usage Data are considered Confidential Information and the property of DOMO only, with DOMO acting as the Disclosing Party with respect to such data. Confidential Information does not, however, include information that: (i) has been made public without restriction prior to the time of disclosure by the Disclosing Party; (ii) become publicly known without restriction upon disclosure by the Disclosing Party without action or inaction by the Recipient Party; (iii) is already in the possession of the Recipient Party at the time of disclosure by the Disclosing Party; (iv) is obtained by the Recipient Party from a third party without breach of that third party's confidentiality obligations; or (v) is independently developed by the Recipient Party without use of or reference to the Disclosing Party's confidential information.
b. Obligation of confidentiality
The Recipient Party shall not, and shall instruct its employees, agents, contractors or representatives not to (a) disclose, sell, license, transfer or make available to any person or entity any Disclosing Party Confidential Information, except to its employees, agents, contractors or representatives who have a legitimate need to know such Confidential Information for the performance of the Recipient Party's obligations under under the Agreement (and only to that extent), and/or (b) use, reproduce or copy any Disclosing Party's Confidential Information, except to the extent necessary for the performance of its obligations under this Agreement.
c. Ownership and restitution
All Confidential Information shall remain the property of the Disclosing Party and all documents, electronic media and other tangible materials or portions thereof, which contain Confidential Information of the Disclosing Party, shall be delivered to the Disclosing Party promptly upon its written request.
Nothing in the Agreement prevents DOMO or Customer from complying with applicable laws. The Recipient Party may therefore disclose the Disclosing Party's Confidential Information in connection with subpoenas, court orders, other legal process, or any other legal requirement, provided that the Receiving Party gives the Disclosing Party written notice of such requirement (except as expressly prohibited in such subpoena, court order or other legal process) prior to such disclosure and take reasonable steps to protect the Confidential Information from public disclosure, and provided further that any disclosure is limited to the minimum necessary to comply with legal requirements.
Customer acknowledges that a breach of its duty of confidentiality may result in irreparable harm to DOMO, which may not be adequately compensated in the form of damages. Accordingly, DOMO may seek and obtain injunctive relief against breach or threatened breach of the foregoing covenants, in addition to any other legal remedies that may be available, under contract or at law.
DOMO may refer to Customer as a customer of the Services, and Customer grants DOMO a limited license to use Customer's name, logos, and trademarks for the sole purpose of referring to them in connection with DOMO's marketing activities.
16. NO WARRANTY
The Services (including, for the avoidance of doubt, the Platform, any Developments and the Content) are provided AS IS and AS AVAILABLE. To the fullest extent permitted by applicable law, DOMO disclaims all warranties with respect to the Services, whether express, implied, or statutory, including any warranties of merchantability, fitness for a particular purpose, quiet enjoyment, and non-infringement of third party rights. In particular, DOMO does not represent or warrant that the Services will meet Customer's requirements, that the operation of the Services will be uninterrupted or error-free, that any errors will be corrected, that it will ensure the continued compatibility of the Services with any third-party products, even if they were compatible at any given time, that the Services will always be available and will remain available without change or that certain Royalty models available at any given time will remain Available.
17. LIMITATION OF LIABILITY
DOMO's liability under the Agreement, whether in contract, tort or any other form of liability, is excluded to the fullest extent permitted by applicable law. In particular, without prejudice to the foregoing, to the extent permitted by applicable law, DOMO shall not be liable for mere negligence or for any damage or loss, whether foreseen or foreseeable, or whether advised by DOMO or the Customer of the risk thereof, related to loss of use, business interruption, loss of actual or anticipated profits, loss of revenue or loss of benefits, loss of actual or anticipated profits, loss of anticipated savings, loss of opportunities, loss of goodwill, loss of reputation, data damage or corruption, or any other indirect, special, incidental or consequential damages or losses of any kind, regardless of the form of action, whether in contract, tort, strict liability or otherwise.
b. Use of the Internet
There are risks associated with using the Internet, including the risk that the data transmitted may be intercepted, altered or deleted. By using the Platform, the Client accepts these risks. DOMO accepts no liability in this regard.
c. Use of the Services
Use of the Services (including the Platform) is entirely at Customer's own risk, and DOMO expressly disclaims any and all liability for Customer's use of the Services and/or for decisions made by Customer based on knowledge gained from using the Services.
d. Limited amount
In no event shall DOMO's total liability in any 12-month period exceed the amount of Royalties actually paid by Customer during the 12 months preceding the events giving rise to Customer's claims.
The exclusions and limitations set forth in this art. 17 extend to directors, employees, agents, representatives and auxiliaries of DOMO.
The Client agrees to defend and indemnify DOMO, its directors, employees and auxiliaries, from and against any liability, loss, cost, damage or expense, including attorneys' fees, resulting from (i) the Client's use of the Services other than as permitted by the T&Cs and in strict compliance with the documentation provided by DOMO for the Services; or (ii) DOMO's use of any Customer Data as permitted by the T&Cs.
In the event of any claim or proceeding against DOMO, its directors, employees or assigns in connection with Customer's use of the Services or DOMO's use of Customer Data, DOMO shall (i) promptly notify Customer; and (ii) allow Customer to assist DOMO in defending and settling such claims or proceedings with counsel of Customer's choice and at Customer's own expense, if and to the extent permitted by applicable procedural rules.
19. TERM AND TERMINATION
a. Coming into force
The Agreement shall enter into force upon the Client's acceptance of the T&Cs in accordance with Art. 1.d.
The Agreement shall remain in effect for the initial term set forth in the Order Form or, in the absence of a specified term, for an initial term of 2 years, subject to non-renewal or termination in accordance with this Art. 19 (the Initial Period).
The Agreement will automatically renew upon the expiration of the Initial Term or the current Renewed Term (each a Renewed Period and, with the Initial Period, the Total Period), for a new consecutive Renewed Term for a period of 1 year, subject to prior written notice of non-renewal by either Party with 3 months' notice or termination in accordance with this art. 19.
d. Termination for Cause
DOMO may terminate the Agreement with immediate effect in the event of Customer's material breach of its obligations under the Agreement, provided that, if Customer's breach can be remedied, in DOMO's sole discretion, DOMO shall first give Customer 20 days' written notice to remedy such breach to DOMO's complete satisfaction. DOMO may also terminate the Agreement in the event of a violation of the rights of a third party or a risk of violation of such rights, as a result of Customer's use of the Services.
e. Effects of Termination
In the event of non-renewal or termination of the Agreement, and in addition to the consequences described elsewhere in the T&Cs:
i) DOMO will cease providing, and Customer will cease using, the Services;
ii) all rights of use and access granted to the Customer under the GTC (in particular pursuant to Art. 5.a) will cease and all access to the Platform and credentials will be disabled and deleted;
iii) the Client will permanently delete any part of the Platform and/or the Content stored or installed on its computer systems, if any;
iv) all Fees already paid by the Client remain the property of DOMO and are non-refundable to the Client; and
v) Customer agrees to pay all Fees due to DOMO immediately.
All terms that are expressed or intended to survive, and all provisions of the Agreement necessary for its interpretation or performance shall continue to apply regardless of the reason for the termination or expiration of the Agreement.
During the Total Period and for a period of 2 years after the expiration or termination of the Agreement, Customer shall refrain, directly or indirectly, or through any other party, from encouraging, inducing or otherwise soliciting (or attempting to encourage, induce or otherwise solicit) any DOMO personnel to terminate their employment contract with DOMO, or to hire such a person.
In the event of a violation of Art. 20.has, the Client shall immediately pay DOMO a penalty corresponding to 12 months' gross salary for the personnel concerned. The payment of the penalty does not release the Client from its obligations under Art. 20.has and does not affect DOMO's right to claim damages.
a. Independent Contractors
The Parties acknowledge and agree that they are independent contractors with no authority to contract for the other or to bind or bind the other in any way to any agreement of any kind or to assume any liabilities of any kind in the name or on behalf of the other. Under no circumstances shall either Party, or any of its employees, as the case may be, hold itself out as an agent, employee, joint venture, or partner of the other Party, or be considered as such. Neither Party shall pay any social security contributions, unemployment insurance, federal or cantonal withholding taxes, any other applicable taxes, whether federal, cantonal or local, or provide any other contributions or benefits that might be expected under an employer-employee relationship.
Subject to Art. 13.c, DOMO may use subcontractors for the provision of the Services. DOMO's use of subcontractors does not relieve it of the duties or obligations incumbent on it under the T&Cs and which must be imposed on subcontractors.
c. Force majeure
Neither Party shall be liable for any delay or failure to perform its obligations under the T&Cs for reasons beyond its reasonable control, such as natural disasters, wars, strikes, power outages, internet outages, epidemics, pandemics or other similar events. Such an excuse for delay lasts only as long as the event remains beyond the control of the Party concerned. However, the Party concerned shall endeavour to minimize delays caused by an event beyond its control. The Party concerned must inform the other Party without delay of the occurrence of such an event, failing which the performance by the Party concerned shall not be considered excused under this Art.
The Order Form may only be modified by a written document signed by both Parties. DOMO reserves the right to modify the T&Cs by written notice to the Customer at least 4 months prior to the end of the Initial Term or any Renewed Term, in which case Customer's sole remedy shall be to terminate the Agreement in accordance with Art. 19.c. In the absence of termination, such changes will take effect at the beginning of the new Renewed Term.
The Agreement constitutes the entire agreement between the Parties and supersedes all prior representations, understandings or understandings between them, with respect to the subject matter of this Agreement.
In the event of any conflict or contradiction between the provisions of the T&Cs and those of any other contractual document (such as the Order Form or any Schedule), the T&Cs shall prevail, subject to express and specific derogations, deletions or additions contained in the Order Form.
If any provision of the Agreement is found to be invalid or unenforceable for any reason, the Parties agree to replace it with a valid and fully enforceable provision reflecting the original intent of the Parties to the greatest extent possible. In any case, all other provisions of the Agreement will remain valid and enforceable to the fullest extent possible.
h. Electronic form
The terms "performance", "signature" and other similar terms in the Agreement shall be deemed to include non-qualified electronic signatures (e.g. Docusign or any other equivalent electronic signature provider) that have the same legal effect, validity or enforceability as a manually signed signature; while the term "in writing" includes communications by e-mail or other electronic form.
i. No Waiver
The fact that one Party does not at all times require the other Party to comply with some of its obligations under the GC does not affect that Party's right to continue to require the other Party to fully implement its obligations thereafter.
Neither Party may assign and transfer any or all of its rights and obligations under the Agreement, in whole or in part, to any third party without the prior written consent of the other Party; however, it is specified that DOMO is authorized to assign and transfer all or part of its rights and obligations under the Agreement to a third party that acquires all or almost all of its activities related to the Services and/or the Platform, without the Client's consent.
k. No Third-Party Beneficiaries
The Agreement is binding and inure solely to the benefit of the Parties (and their respective successors and assigns). Nothing in the Agreement is intended to confer on any third party any rights, benefits or remedies of any kind under or as a result of the T&Cs or the Order Form.
22. APPLICABLE LAW AND JURISDICTION
a. Governing Law.
The Agreement and/or any use of the Services shall be governed by Swiss substantive law, to the exclusion of its provisions of private international law.
Any dispute or controversy arising out of or in connection with the Agreement and/or Customer's use of the Services shall be subject to the exclusive jurisdiction of the competent ordinary courts at the place of DOMO's registered office. Notwithstanding the foregoing, nothing in the T&Cs shall prevent DOMO from seeking injunctive or other remedies available at law in any jurisdiction for infringement of its Intellectual Property Rights.
domo.health Pro Platform | Terms & Conditions, version [August 2023]