Our terms-and-conditions
General Terms and conditions
Terms & Conditions
GENERAL TERMS OF SERVICE
Latest version, dated February 6, 2022
Our Terms Of Services Level Of Agreement
The purpose of these General Terms of Service is to define the terms and conditions governing the provision of
and use of ScoobyMedia Services.
These General Terms of Service form, together with the applicable Specific Terms of Service and all of the
documents which they make reference to, constitute a single contract (hereafter the “Contract”) between ScoobyMedia
governed by private or public law, creating a Client Account on the ScoobyMediaWebsite (hereafter the “Client”).
The Client and ScoobyMedia are individually and jointly referred to as the “Party” or “Parties”, respectively.
Capitalized terms have the meaning set forth in the present General Terms of Service.
Table of Content
1. ORDERING SERVICES
2. SERVICES
3. TERMS OF USE OF THE SERVICES
4. MEASURES TO PREVENT SPAMMING FROM ScoobyMedia'S NETWORK
5. MITIGATION (protection against DOS and DDoS attacks)
6. ScoobyMedia SUPPORT
7. RESPONSIBILITY
8. FINANCIAL CONDITIONS 13
9. DURATION, RENEWAL AND TERMINATION OF SERVICES
10. CONFIDENTIALITY 11. GENERAL PROVISIONS
12. JURISDICTION AND APPLICABLE LAW
13. DEFINITIONS
14. PROVISIONS APPLICABLE TO CONSUMERS
1. ORDERING SERVICES
1.1. Client Account
The Client must have a valid Client Account to order ScoobyMedia Services. The Client
creates its Client Account online on ScoobyMedia Website. The Client shall provide all the required
information (email address, name, address, bank details, etc.), and undertakes to provide correct and up
to date information throughout the entire duration of the Contract. When a Client Account is created and
used by a person acting in the name and on behalf of the Client, such person warrants that it has full
power and authority to represent, enter into and perform this Contract on behalf of the Client.
1.2. Account Activation.
Prior to the activation of the Client Account, as well as at any time while the Contract
is in effect, ScoobyMedia reserves the right to verify the accuracy of the Client information, and to request
supporting documentation from the Client. ScoobyMedia reserves the right not to activate, or to deactivate,
the Client Account should any information provided by the Client be incomplete, inaccurate, or
fraudulent.
1.3 Orders.
Once the Client Account has been activated by ScoobyMedia, the Client can order Services.
Depending on Services, Orders can be placed through ScoobyMedia Website and/or directly through the
Client’s Management Interface and/or by using an API that ScoobyMedia may provide for that purpose. The
Client is solely responsible for the management of its Client Account and associated authentication
credentials (user names, passwords, etc.). Any Order placed through the Client Account is deemed to have
been submitted by and be binding on the Client thereby agreeing to be unconditionally bound by the
Terms of Service. The conditions and timeframes for the provision of Services vary depending on the
Service ordered. Some Services are made available only upon receipt by ScoobyMedia of the corresponding
payment from the Client in advance for the Services. It is the Client’s responsibility to ensure that the
delivery terms for the ordered Services meet its needs.
1.4. Account Closing.
Client may request to close its Client Account through Client Management Interface by
opening a support ticket. A Client Account can only be closed once all associated Services have been
terminated and paid for until their termination. Should the Client Account not be active for more than 24
months, for instance if no associated Services are used during that period, ScoobyMedia may decide to close
that Client Account. In that event, Client will be informed of its Client Account inactivity and will be invited
to log back on its Account within the next 30 days. Should the Client fail to do so, the Account will be
closed. Once the Client Account has been closed, it cannot be reactivated and all the data associated to
that Client Account will be deleted, save for ScoobyMedia’s right to archive certain data to comply with its
legal obligations and defend its rights pursuant to ScoobyMedia personal information policy.
2.SERVICES
2.1. Applicable Terms of Service.
The provision and use of the Services are governed by these General Terms
of Service, the Specific Terms of Service applicable to the selected Services, the “Data Processing
Agreement” Appendix, any other conditions referred to by the General Terms of Service and Specific
Terms of Service, such as Third Party Product Terms of Use, along with any other information given to
the Client upon the Order (“Terms of Service”). The use and/or the download of Third Party Products
provided by ScoobyMedia in the provision of the Services constitutes acceptance of the Third Party Product
Terms of Use in accordance with Article 3.11. The Specific Terms of Service, and the Third Party Product
Terms of Use supplement these General Terms of Service. In the event of contradiction, the Specific
Terms of Service, as well as the General Terms of Service, shall prevail over the Third Party Product
Terms of Use. The Terms of Service in effect are available on ScoobyMedia website or may be sent to the
Client upon request to ScoobyMedia Support. The Terms of Service may vary depending on the country
where the Services are located and the local laws that will be applicable.
2.2.
Information related to the Services. ScoobyMedia makes available to the Client via ScoobyMedia Website,
online resources which enable the Client to be informed of the characteristics of the Services offered.
These resources may include, in particular, (a) information regarding various available features,
configurations, options and ranges and (b) documentation, technical guides and/or examples (or use
cases) regarding the Services for a better understanding and use of the Services. The Client may obtain
additional information regarding the Services by contacting ScoobyMedia Support as indicated in article
“ScoobyMedia Support” below. In cases where ScoobyMedia offers Services which comply with known
standards or specific regulations which apply to certain activities, ScoobyMedia shall communicate its
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scope of responsibility as well as the conditions in which ScoobyMedia complies with said standards or
regulations.
2.3
ScoobyMedia commitments and obligations. ScoobyMedia undertakes to exercise reasonable care and skill
in providing the Services in accordance with the characteristics, terms and Service level agreements
indicated in the Contract. In particular, ScoobyMedia agrees to exercise reasonable care and skill in keeping
in place a competent team responsible for assisting the Client and handling Incidents (“ScoobyMedia
Support”) and ensuring the availability and security of the Services in accordance with the applicable
terms and performance levels. ScoobyMedia is subject to an obligation of means.
2.4.
Subcontracting. Subject to the provisions of the “Data Processing Agreement” Appendix, ScoobyMedia may
subcontract all or part of the Services to its Affiliates. ScoobyMedia may freely provide the Services through
Third-Party Providers, without having to inform the Client or obtain it prior approval. However, unless
the Specific Terms of Service provide for the contrary, no performance of the Services implying access
to the Content stored by the Client shall be subcontracted outside of ScoobyMedia Group of companies.
ScoobyMedia shall in all cases remain primarily liable for the Third-Party Providers it may subcontract to
provide the Services.
3.TERMS OF USE OF THE SERVICES
3.1. Compliance with the Terms of Service.
The Client agrees to order and use the Services in accordance
with the Terms of Service in effect. The Services must be used in good faith. In particular, the Client
undertakes to comply with these General Terms of Service, the Specific Terms of Service and the
applicable Third Party Product Terms of Use, as well as any information communicated to the Client at
the time of the Order. When using the Services on behalf of a third party, or authorizing a third party to
use the Service the Client undertakes before any use of the Service(s) by such third party, to
communicate and obtain their approval on the Terms of Service and guarantees compliance of the
Terms of Service by the said third party.
3.2.
ServicesSelection. Before ordering and using the Services, the Client shall familiarize itself with all of
the applicable Terms of Service (in particular, the Specific Terms of Service and the Third Party Product
Terms of Use), and study all of the documentation, configuration, options and ranges of services
available, in order to select Services and characteristics suited to its needs and those of the third parties
for whom or on whose behalf the Services will be used. In particular, the Client shall verify that the
Services are suited to the legal and regulatory requirements applicable to the activities performed with
the Services. In order to obtain any additional information regarding the Services, the Client may
contact ScoobyMedia Support as set out in article “ScoobyMedia Support” hereafter. Services terms and
characteristics are be updated regularly. The Client is responsible to take note of these updates,
particularly when placing a new Order.
3.3. Connection. To use the Services, the Client must ensure that it has access to a remote connection (such
as the Internet or a private network), which it is solely responsible for and bears the costs of. The Client
is hereby informed that the Internet presents technical hazards and security risks that are external to
the technical measures used by ScoobyMedia in the provision of the Services. ScoobyMedia shall not be held
liable for any failure from Internet access providers or other third party data transport networks
(including but not limited to connection lines lack of reliability, bandwidth fluctuations, connection
interruptions, etc.), nor for the consequences of said failures, particularly when they result in Services
unavailability or discontinuity.
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3.4. Means of authentication. Client is responsible for the management and confidentiality of the means
of authentication necessary for connecting to and using the Services. The Client shall ensure that Users
are knowledgeable of and follow standard practices to maintain the confidentiality of their
authentication credentials. The Client is solely responsible for any consequences which may arise from
the loss, disclosure, or fraudulent or illicit use of Users authentication credentials. ScoobyMedia shall in no
way be held liable in this regard. The Client undertakes to immediately inform ScoobyMedia of any loss or
disclosure of any authentication credentials, and to immediately change said authentication
credentials.
3.5.
Content. Except for items provided by ScoobyMedia, ScoobyMedia does not handle the Content and shall not
access said Content for any other purpose than as necessary to provide the Services. ScoobyMedia does
not perform any verification, validation or update operations on said Content. Likewise, ScoobyMedia does
not perform any particular backups of Content stored in connection with the Services. Therefore, the
Client is solely responsible for taking all necessary measures to safeguard its data in order to protect it
against risk of loss or degradation regardless of cause. The Client shall ensure that the Content is legal
and used in accordance with applicable industry standards, laws and regulations. Any use of illegal or
fraudulent Content (such as the distribution, publication, storage or transmission of sexually explicit,
obscene, offensive, pedophile, anti-Semitist, racist, hateful content or materials inciting to crimes
against humanity, acts of terrorism, , to hatred or discrimination towards individuals by reason of their
gender, religion, sexual orientation or identity, or disability), or the illegal or abusive use of Content (for
example, fraudulent use of Content, or use of Content in violation of rights belonging to a third party
such as personality rights, copyrights, patents, trademarks or other intellectual property rights) within
the scope of Services is prohibited, and can lead, at ScoobyMedia discretion, to immediate suspension of
all or part of the Services, the deactivation of the Client Account and/or the termination of the Contract
by ScoobyMedia, without prejudice to other rights and remedies ScoobyMedia may have under the Contract
or at law.
3.6.
Compliance with laws and regulations – Prohibited activities. The Client shall use the Services in a
reasonable manner and shall comply with all applicable laws and regulations. Explicitly forbidden actions
include, but are not limited to, (a) abuse, fraudulent or excessive use of the Services and resources made
available to the Client, particularly any use of a nature that threatens the stability and security of the
ScoobyMedia systems or which can result in a degradation of the performance of the Services provided to
other ScoobyMedia clients, (b) intrusions or intrusion attempts launched from the Services (including, but
not limited to, port scanning, sniffing, spoofing, and more generally, attacks on external parties originating
from resources made available by ScoobyMedia) except Penetrating Tests specifically authorized by
ScoobyMedia pursuant to these General Terms of Service, (c) any use or attempted use of spam or any other
technique similar to spamming, and (d) use of illicit or prohibited content as specified in paragraph 3.5,
“Content”. For clarity sake, crypto currency mining, denial of service attacks, spamming, or any other
activity designed to, or capable of disrupting, damaging or limiting the functionality of any Services are
strictly prohibited. This does not affect the Client’s right to use consensus mechanisms such as “proof of
stake” to verify transactions in the blockchain, provided always such mechanism does not fall under the
restriction set forth in paragraph (a) above.
3.7.
Suspension of Services. ScoobyMedia reserves the right to suspend all or part of the Services in the event
of (a) a known risk to the stability and/or security of ScoobyMedia systems or environment, to the Services
and/or to Client Content, (b) scheduled maintenance, (c) a request issued by a legal authority or
competent judicial authority, (d) notification by a third party in accordance with applicable laws, or (e)
Client noncompliance with all or part of the Terms of Service. Said suspension may occur immediately
and without prior notice in case of emergency or necessity, and particularly in the case of an event such
as described in point (a), (c) and (d) above, or in case of illicit or fraudulent use of the Services, or use in
violation of the rights of a third party, and more generally, of any use which may trigger the liability of
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ScoobyMedia. Except for request issued by a legal authority or competent judicial authority requests or for
noncompliance with the Terms of Service, ScoobyMedia shall endeavour to minimise the suspension
impact on the normal operations of the Services. Any such suspensions shall in no way release the
Client from its obligation to pay the full amounts due to ScoobyMedia under the Contract, which is without
prejudice to the Client’s right set forth in article “Liability” hereafter if such suspensions result from
ScoobyMedia’s failure to fulfil its obligations. Client can consult the maintenance schedule using the
interface provided for this purpose. In the event any such suspension results from Client’s failure to
fulfil its obligations under the Contract, the suspension shall take place without prejudice to
ScoobyMedia’s right to terminate the Contract in accordance with article “Duration, Renewal and
Termination of Services” hereafter, and without prejudice to ScoobyMedia's other rights and remedies at
law. Except in cases of termination or nonrenewal of Services, suspensions of Services shall not result
in the deletion of Client’s data. Unless suspensions result exclusively from ScoobyMedia’s failure to fulfil
its obligations, the duration of the aforementioned suspensions shall not be deemed as unavailability
of Services in application of the service level agreement provided in the Contract.
3.8.
Updates to Services. ScoobyMedia may, at its sole discretion, modify the Services at any time, and add,
modify or remove Services ranges, options or features, as well as upgrade their performance. Services
are described online on the ScoobyMedia Website. The Client is responsible for keeping abreast of any
updates to the Services, which are immediately applicable to any new Orders. Concerning the Services
in use by the Client, the latter shall be informed by email or via its Management Interface of any
substantial updates which are of a nature to downgrade said Services, at least thirty (30) calendar days
before their implementation. Nevertheless, modifications to Third Party Products and in urgent cases
(such as security risks, or legal or regulatory compliance updates) may result in immediate
modifications to the Services. Subject to the article “Condition Specific to Consumers”, in case of an
update downgrading existing Services in use by the Client (removal of functionality, performance
downgrade, etc.), the Client may terminate the relevant Services by registered letter with
acknowledgment of receipt, or through a specific form provided in its Management Interface, within
thirty (30) days from the date the relevant update is implemented.
3.9. Intellectual property. Usage rights. All of the items (software, Infrastructure, documentation, etc.)
made available to the Client by ScoobyMedia in the provision of the Services and during the term of the
Contract remain the exclusive property of ScoobyMedia or the third parties which have granted the rights
to use them. ScoobyMedia grants the Client a non-exclusive license to use the said items only in accordance
with and for the duration of the present Contract. With the exception of the aforementioned items made
available to the Client by ScoobyMedia in the provision of the Services, the Client remains solely
responsible for acquiring all of the authorisations and usage rights for the elements and Content (data,
software, applications, systems, websites, etc.) which it uses and operates in relation to the Services.
The Client and Users retain all intellectual property rights in their respective Content which ScoobyMedia
shall not use except to the extent necessary to perform the Services. Subject to mandatory legal
provisions in effect, the Client is not authorized to decompile, disassemble, reverse-engineer the
software, source code and algorithms used in connection with the Services.
3.10. Compliance with Sanctions.
3.10.1. The Client shall at all times comply with Sanctions.
The Client represents and warrants that:
a) it is not, and was not previously, a person which has been designated under, targeted by, or otherwise
subject to, any Sanctions;
b) it is not owned or controlled by, or acting for or on behalf of, an individual or entity which has been
designated under, targeted by or otherwise subject to, any Sanctions; and
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c) the Services will not be sold, exported, diverted or otherwise transferred to any individuals or entities
located in countries or regions subject to comprehensive Sanctions or trade embargoes, to the
governments of any of these countries or regions, or to any person or entity that is otherwise targeted
by Sanctions laws, or to any person or entity that is directly or indirectly involved in acts of terrorism,
or in connection with weapons of mass destruction or missile applications; and
d) it will not use, deal with, sell, supply, transfer or export, or broker the use, dealing with, sale, supply,
transfer or export of the Services in a manner that would otherwise violate Sanctions.
3.10.2.
The Client shall inform ScoobyMedia immediately if any of the representations and warranties in
this clause cease to be accurate in any respect at any time during the term of this Contract.
3.10.3.
ScoobyMedia is not obliged to perform any obligation under this Contract to the extent that the
performance of such obligation would breach Sanctions applicable to ScoobyMedia or expose ScoobyMedia to any
risk of enforcement action or punitive or restrictive measures or other adverse action under Sanctions.
3.10.4.
In the event that:
a) the Client breaches any provisions of this clause;
b) the representations and/or warranties set out in this clause cease to be accurate in any respect at any
time during the term of this Contract; or
c) clause 3.10.3 applies,
ScoobyMedia, in its discretion, shall be entitled torterminate all or part of this Contract, by providing
written notice to the Client upon such terms and with such effect as specified by ScoobyMedia in such
written notice. ScoobyMedia reserves the right to refuse Orders submitted (a) from countries subject to
Sanctions, or (b) by citizens of those countries or individuals subject to Sanctions.
3.11. Third Party Products. Subject to specific commitments undertaken within the scope of the applicable
Specific Terms of Service,
(a) ScoobyMedia is not responsible for Third Party Products made available
within the scope of the Services which may contain technical errors, security vulnerabilities,
incompatibilities or instabilities, and offers no guarantee for the Third Party Products made available
by ScoobyMedia to the Client in the provision of the Services (including all related information and items
such as software, systems, applications, etc.), and
(b) the Client is only authorised to use the Third Party
Products made available to it by ScoobyMedia in accordance with the terms of the Contract, and in
particular is forbidden from decompiling, accessing the source code, reinstalling the Third Party
Products on any other infrastructure software or systems made available to Client. The Client uses the
Third-Party Products entirely at its own risk, in accordance with these Terms of Service, and is
responsible to ensure that such Services are suited to its needs and the purposes for which it uses them.
3.12.
Services Continuity and Reversibility. Unless provided otherwise in the Specific Terms of Service,
the termination of Services for any reason whatsoever (including without limitation, the Contract or
Services termination or non-renewal, failure to comply with the Terms of Service, etc.), as well as
certain operations to update or reinstall the Services, shall automatically result in the irreversible
deletion of all Content (including information, data, files, systems, applications, websites, and other
items) that is reproduced, stored, hosted, collected, transmitted, distributed, published and more
generally used and/or operated by the Client in connection with the Services, including any potential
backup. Before the termination or expiry of the Services, and before proceeding with any deletion,
update or reinstallation of Services, the Client is solely responsible to perform any operations (such as
backup, transfer to a third party solution, Snapshots, etc.) which are necessary to safeguard its own
Content. Upon Client’s request, and subject to the provisions of article “Confidentiality” below,
ScoobyMedia will provide technical information regarding the Services so as to facilitate Client’s
reversibility operations and Content recovery. Such assistance may result in additional charges for time
worked, based on the financial terms available on ScoobyMedia Website or upon request to ScoobyMedia
Support. However, ScoobyMedia does not proceed to any operation of restitution or Client’s Contents
migration. Such operations are under the Client’s exclusive responsibility. Except for (i) any data that
ScoobyMedia must keep in accordance with applicable laws and regulations, (ii) personal data set forth in
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the “Data Processing Agreement” Appendix and (ii) any data necessary to defend its rights, ScoobyMedia
will not to keep a copy of the Client's data following the termination of Services, unless otherwise
agreed by the Parties or provided otherwise in the applicable Specific Terms of Service.
3.13. Penetration Tests. The Client may, directly or through a duly appointed third party auditor of its choice,
carry out penetration tests on the Services (hereinafter "Penetration Test(s)") without prior notification
of ScoobyMedia. These Penetration Tests shall be carried out in accordance with the laws and regulations
in force. The Client shall obtain the authorisation of the Users and rights holders within the scope of
the test. Should the Client have these Penetration Tests performed by a third party auditor, their
agreement shall include all the conditions of this article. The Client declares and warrants to ScoobyMedia
that all the conditions for conducting the Penetration Tests stipulated herein will be respected,
including by the auditor who acts under the full responsibility of the Client.
Under no circumstances shall the Penetration Tests
(a) target other ScoobyMedia target elements and
ScoobyMedia Infrastructures other than those used exclusively by the Client (including but not limited to
ScoobyMedia shared infrastructure, networks and services),
(b) disrupt the proper functioning of the
Services and ScoobyMedia infrastructure and networks and/or
(c) have any impact on the Services,
resources, networks and infrastructure provided by ScoobyMedia to other clients. Any attempt to intrude
into environments or systems used by other ScoobyMedia clients is expressly prohibited.
The Client is solely responsible for all consequences that may result from the performance of the
Penetration Tests, including when carried out by a third party auditor. Client is sole responsible to carry
out or to have carried out in advance, all necessary backups to prevent any data loss and to restore and
to be able to continue to use the target elements of the Penetration Tests (systems, applications, data,
etc.),
should an incident occur during the Penetration Tests.
Client is informed that if, within the framework of the Services, protection mechanisms, such as
systems to prevent the sending of fraudulent or massive mail (SPAM) or against computer attacks by
denial of service (DOS or DDOS), have been put in place, these mechanisms will not be deactivated for
the Penetration Tests, and may therefore result in the unavailability of the Services. The Client is
responsible for informing any person likely to be affected by such unavailability.
Upon completion of the Penetration Tests, a written audit report will be drawn up and communicated
to ScoobyMedia upon first request or whenever it is of interest to ScoobyMedia(in particular in the event of a
flaw or vulnerability in ScoobyMedia's Services or Infrastructures, or that could impact other ScoobyMedia
clients).
The audit report, its contents, and more generally all information disclosed or collected in the course
of the audit and concerning, directly or indirectly, ScoobyMedia, are considered strictly confidential, and
may under no circumstances be published or disclosed to third parties without ScoobyMedia's prior
written consent.
In the event of non-compliance by the Client and/or the third party auditor with all or part of the terms
and conditions of this article, ScoobyMedia reserves the right to immediately suspend access to its
Services, without prejudice to any damages ScoobyMedia may claim.
4. MEASURES TO PREVENT SPAMMING FROM ScoobyMedia'S NETWORK
4.1. Traffic monitoring measures. ScoobyMedia implements technical measures intended to prevent the
sending of fraudulent emails and spam from its Infrastructure. ScoobyMedia monitors outgoing traffic
from the Service towards port 25 (SMTP server) on the Internet, involving monitoring traffic by means
of automatic tools. The outgoing traffic referred in this paragraph shall be monitored by ScoobyMedia
with a delay of a few seconds, rather than being filtered or intercepted. These operations shall be
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conducted by ScoobyMedia concurrently and not, under any circumstances directly between the Services
and the internet. ScoobyMedia will not conduct any tagging of e-mails, and will not modify e-mails sent
by the Client in anyway whatsoever. No information shall be stored by ScoobyMedia during these
operations aside from statistical data. The operation in this paragraph shall be conducted regularly
and in a fully-automated manner by ScoobyMedia without any human intervention involved in the
monitoring of traffic to port 25 (SMTP port).
4.2
Blocking e-mails identified as spam. Should e-mail be identified by ScoobyMedia as spam or
fraudulent e-mails be sent from the Client’s server,, ScoobyMedia shall inform the Client by e-mail and
block the Server’s SMTP port.
4.3.
Unblocking conditions. The Client may request the unblocking of the SMTP port through the
Management Interface. Any new e-mail identified as spam will entail a new blocking of the SMTP port
by ScoobyMedia for a longer period of time determined at ScoobyMedia’s reasonable discretion. Upon the third
SMTP blocking, ScoobyMedia reserves the right to deny any further request to unblock the SMTP port.
4.4 Data. ScoobyMedia does not keep any copy of e-mails sent from the Service's SMTP port, even when they
are identified as spam.
5. MITIGATION (protection against DOS and DDoS attacks)
5.1
Protection Measures. ScoobyMedia implements protection against DOS and DDoS-type (Distributed
Denial of Service) hacking attempts if these attacks are considered to be serious enough by ScoobyMedia
to justify such protection. In implementing such protection, ScoobyMedia shall use reasonable endeavors
to ensure that the operation of the Client’s Services is maintained throughout the duration of a DOS
or DDoS attack. These measures involve monitoring the traffic sent to the Client’s Services from
outside ScoobyMedia’s network. Traffic identified as illegitimate shall then be rejected by ScoobyMedia prior
to reaching the Client’s Infrastructure, thus allowing legitimate users to access the applications
offered by the Client in spite of the attack.
5.2.
Scope of the protection. The protection measures outlined in this article shall not apply in the case
of attacks such as SQL injection, brute-force, abuse of security vulnerabilities, or attacks of a similar
nature to the latter. Given the high technicality of the measures, ScoobyMedia responsibility is limited to
provide reasonable endeavors and certain attacks may not be detected by the protection measures
implemented by ScoobyMedia. The Infrastructure and the Service may be temporarily suspended and
unavailable. Given the nature of a potential DOS or DDoS attack and their complexity, ScoobyMedia may
implement different levels of traffic protection in order to preserve its Infrastructure and the Services.
5.3.
Detection of the attack. The mitigation of a DOS or DDoS attack is activated only upon detection of
the attack by ScoobyMedia. Thus, until the mitigation is activated, the Service will face the attack directly,
which may lead to the temporary unavailability of the Service. Mitigation is activated for an undefined
period of time and automatically deactivated once the attack and illegitimate traffic have ended.
While mitigation is activated, ScoobyMedia does not guarantee the accessibility of the Client’s
applications but it shall endeavour to limit the impact of a DOS or DDOS attack on the Client’s Services
and on ScoobyMedia’s Infrastructure. If, in spite of the activation of mitigation, a DOS or DDOS attack is
of such a nature as to adversely affect the integrity of ScoobyMedia’s Infrastructure or the infrastructure
of the other ScoobyMedia clients, ScoobyMedia will strengthen its protection measures which may lead to
the deterioration of the Client’s Services or impacting its availability for which ScoobyMedia shall not be
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liable. All or part of the traffic generated by the attack may not be detected by ScoobyMedia and may
therefore impact Client’s Services.
5.4. Client’s configuration. The effectiveness of the mitigation depends also on the appropriate
configuration of the Client’s Services. In this regard, the Client must ensure that it has the adequate
resources to administer the configuration of the Client’s Services properly. The Client shall be solely
responsible for ensuring it secures its Services, implementing security tools (firewall, etc.),
periodically updating their system, backing up their data and for ensuring the security of their
software (scripts, codes etc.).
6. ScoobyMedia SUPPORT
6.1.
ScoobyMedia Support team. ScoobyMedia Support team is responsible for handling Incidents which may
occur in relation to the Services, and to provide the Client, upon request, with information regarding
the Service. Except for the other levels of Support referred to in article 6.4 below, ScoobyMedia Support
is available in English only and information regarding the Services is available during business hours
only. ScoobyMedia infrastructures are monitored 24/7, 365 days a year. To ensure the continuity of such
monitoring on a 24/7/365 basis, ScoobyMedia reserves the right to subcontract part of the Support in
accordance with section “Subcontract” hereunder.
6.2.
Contact ScoobyMedia Support. Client may contact the ScoobyMedia Support by email, using a special form
available in the Management Interface, or during business hours by telephone by calling +44
333552092. ScoobyMedia will create a ticket (“Incident Ticket”) for each request or Incident report
received. The Client will be informed of the creation of the Incident Ticket and its corresponding
number. The Client can access the history and status of its requests and Incidents reported through
its Management Interface. The Client undertakes not to make use of the ScoobyMedia Support wrongfully
or abusively. Before contacting ScoobyMedia Support, the Client must first consult the resources and
information available on the ScoobyMedia Website (user guides, use cases, product documentation, etc.),
and in its Management Interface (reporting, monitoring, etc.). The Client shall not (a) contact the
ScoobyMedia Support for services or products that it has not contracted from ScoobyMedia cloud directly or
(ii) place the ScoobyMedia Support teams in direct contact with its own clients or any other party external
to the Contract. ScoobyMedia reserves the right to refuse to accept any request which does not meet the
aforementioned conditions.
The Client undertakes to adopt an appropriate, cordial and respectful behaviour in its interactions
with ScoobyMedia Support. ScoobyMedia reserves the right to no longer reply to the Client’s requests and to
immediately terminate the Contract in case of abusive, outrageous, or degrading behaviour.
Furthermore, such behaviour may result in legal action taken against the Client, for which purposes
ScoobyMedia may resort to any means of evidence which it deems useful and relevant (extracts of
communications with the Client, screenshots, emails, recording of telephone calls, etc.). Subject to
the other levels of Support referred to in article 6.4 below, ScoobyMedia Support is included in the price
of the Services.
6.3.
Incident handling. In case of malfunction of the Services, the Client shall firstly perform the technical
tests recommended on the ScoobyMedia Website. In the event these tests do not resolve the Incident, the
Client may report the Incident to ScoobyMedia Support as set out above and provide as much information
as possible to facilitate a proper diagnosis. When an Incident is reported, ScoobyMedia Support shall carry
out the necessary investigation to identify the cause of the observed malfunction and establish a
diagnosis. The Client agrees to remain available at all times in order to collaborate with ScoobyMedia on
a proper diagnosis and resolution of the Incident, in particular by providing ScoobyMedia with any
additional information, and by performing all of the necessary tests and verifications. Within the scope
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for Incident handling, ScoobyMedia and its Affiliates are expressly authorized by the Client to connect to
the Client Services at both the hardware and software levels, in order to take any action that is
necessary to perform a diagnosis. This connection may require the Client to perform an action on its
Service. ScoobyMedia will keep the Client reasonably informed of the progress of the operations. If
ScoobyMedia establishes that its Services are available and functioning properly, or that the existence of
the Incident cannot be confirmed, or that the Incident does not fall under the responsibility of
ScoobyMedia, ScoobyMedia shall inform the Client accordingly. In this case, the time spent by ScoobyMedia on
performing the diagnosis and assisting the Client may be charged to the Client as an additional service
provided, based on the fee schedule available on the ScoobyMedia Website or provided to the Client.
ScoobyMedia reserves the right to refuse any assistance if it ascertains, during its investigation, that the
Client is using the Service in violation of the Contract or of any applicable law or regulation. If the
Incident appears to fall under ScoobyMedia’s responsibility, ScoobyMedia will complete the diagnosis and
work to re-establish the availability of the impacted Services. In this case, the work performed by
ScoobyMedia shall not result in any additional charges. The diagnosis shall be established by ScoobyMedia
using any means necessary, and particularly based on exchanges between the Parties and data from
the ScoobyMedia information system (such as login data) which the Client hereby expressly agrees may
be admissible and fully enforceable. Subject to any applicable Specific Terms of Service and other
levels of Support referred to in article 6.4 below, ScoobyMedia does not provide any warranty as to
intervention or Incidents resolution times.
6.4. Other levels of Support. In addition to the ScoobyMedia Standard Support described above, ScoobyMedia
offers other levels of Support which allow the Client to benefit from additional services and levels of
commitment. The terms and conditions for these Support levels are described in the Specific Terms
of Service and corresponding documentations available on the ScoobyMedia Website or upon request to
ScoobyMedia Support.
7. RESPONSIBILITY
7.1.
Authority. Each of the Parties warrants and represents that it has full power and authority to enter into
and perform the Contract. In particular, the Client and ScoobyMedia represent and warrant that they hold
all of the authorisations, skills and knowledge (particularly of a technical nature) which enable them
to respectively use and provide the Services in accordance with the terms and conditions of the
Contract.
7.2.
Responsibility of ScoobyMedia. In cases where the applicable Specific Terms of Service include
commitments from ScoobyMedia to particular levels of service, the corresponding payments or credits
which may be due by ScoobyMedia to the Client shall constitute the Client's sole and exclusive remedy
for ScoobyMedia’s failure to comply with the level of service committed to in the relevant Specific Terms
of Service and ScoobyMedia's entire liability for failing to meet the relevant level of service. Client hereby
waives any right to claim additional damages with that respect. In the absence of an applicable
commitment to a given level of service, under no circumstances shall the total aggregate liability of
ScoobyMedia(including its Affiliates, subcontractors and providers) to the Client (however arising) under
or in relation to this Contract, including (but not limited to) liability for breach of contract,
misrepresentation (whether tortious or statutory), tort (including but not limited to negligence),
breach of statutory duty, or otherwise, exceed (i) the total amount of sums paid by the Client to
ScoobyMedia for the impacted Services over the course of the six (6) months prior to the Client’s claim for
compensation or (ii) the direct damages suffered by the Client if such damages are lower. Any action
against ScoobyMedia shall be filed no later than two years following the date on which the Client becomes
aware of the damage.
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7.3.
Limitation of liability. Under no circumstances shall ScoobyMedia be liable under or in connection with
this Contract for any:
(A) use of the Services by the Client or a third party in breach of the terms and conditions of the
Contract;
(B) non-execution, failure, interruption, malfunction, interruption or unavailability of the Service
resulting from a third party (except ScoobyMedia subcontractors), from Client, a Third Party
Product, or a Client’s breach of any obligation hereunder;
(C) indirect or consequential loss or damage whatsoever;
(D) loss of business, (including without limitation commercial damages, lost orders, operational
losses), loss of revenue, loss of reputation, harm to the company’s image, loss of actual or
anticipated profits, loss of contracts or Clients, loss of opportunity, loss of goodwill, loss of,
damage to or corruption of data (such as, untimely disclosure of confidential information
concerning them resulting from a vulnerability or hacking of the system, legal action by a third
party against the Client, etc.), in each case regardless of whether any of the types of loss or
damage listed in this paragraph (D) are direct, indirect or consequential.
(E) loss, disclosure or illicit or fraudulent use of Users’ authentication credentials by the User or
any third party;
(F) suspensions of access, or temporary or permanent suspension of operated Services in
accordance with article 3 of these General Terms of Service (notably a request issued by a
legal authority or a competent judicial authority);
(G) loss of, damage to, alterations of all or part of the Content (including information, data,
applications, files or other items) hosted on the Infrastructure insofar as ScoobyMedia is not
responsible of Client’s activities continuity and notably backup operations;
(H) lack of suitability of the Services to the needs of the Client (including in relation to the
sensitivity of the relevant data);
(I) security incidents related to the use of the Internet, particularly in case of loss, alteration,
destruction, disclosure or unauthorized access of Client data or information on, or from, the
Internet; AND
(J) impairment of systems, applications and other items installed by the Client on the
Infrastructure.
ScoobyMedia DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES
PROVIDED TO THE CLIENT. THE CLIENT ACKNOWLEDGES THAT ScoobyMedia, ITS AFFILIATES, AND THEIR
RESPONSIBLE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND SUPPLIERS SHALL NOT BE LIABLE
FOR DAMAGES RESULTING FROM, INDIRECTLY FROM THE CONTRACT EXCEPT FOR ANY DIRECT
CONSEQUENCES CAUSED BY THE PERSONAL FAULT OF ScoobyMedia OR ITS REPRESENTATIVES. THIS
SECTION SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS CONTRACT.
7.4.
Responsibility of the Client. The Client bears all risks related to its activities and is sole responsible
for the use of the Services made available by ScoobyMedia. Client is responsible for complying with the
Terms of Service in effect, including procuring that any third party that uses the Services, or on whose
behalf the Service are used, comply with such Terms of Service. Client is responsible for (a) ensuring
the Services ordered are suited to its needs and the needs of third parties for whom or on whose
behalf they are used, (b) the Content, such as information, data, files, systems, applications,
software, websites, and other elements which may be reproduced, hosted, installed, collected,
transmitted, distributed or published, and more generally used and/or operated within the scope of
the Services, as well as (c) the management and use of said Content (in particular their verification,
validation, updating, deletion, backup, and along with any measure designed to protect against the
loss or alteration of the Content), including when the Content belongs to a third party or is used or
operated by or on behalf of a third party, and (d) the compliance with applicable laws and
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Regulations. When the Client uses the Services in the scope of a business activity, or when acting on
behalf of a third party, Client shall subscribe to a third-party insurance policy, from a AAA insurance
company, covering the entire amount of damages which may be incurred by Client, and undertakes
to maintain that insurance policy (or any other equivalent insurance) for the entire duration of the
Contract.
7.5.
Client guarantee. Each Party guarantees it practices activities complying with the regulation in
effect. The Client guarantees notably ScoobyMedia against any consequences resulting from (a) the use
or exploitation of illicit content within the scope of the Services, (b) fraudulent use of the Services or
use that does not comply with the Terms of Service in effect or any applicable laws and regulations,
(c) the use of Services made in violation of third party rights, (d) the lack of suitability of the chosen
Services to its needs or the needs of its Users and of any third party on whose behalf the Services are
used, or (e) the loss of, or unauthorized or fraudulent use of, Users’ authentication credentials. The
Client undertakes to take appropriate action in the event of any action, claim or complaint by a third
party relative to the Content and/or the Terms of Service, including those by legal or judicial
authorities, and to indemnify and hold harmless ScoobyMedia against any damages, losses and
expenses which may result therefrom (including legal judgements, reasonable legal defense costs,etc.).
7.6.
Third Parties. ScoobyMedia makes no commitment hereunder towards any third parties, including
Users, and no stipulation of the Contract may be interpreted as creating third party beneficiaries of
the present Contract (including but not limited to under the Contracts (Rights of Third Parties) Act
1999). The Client is solely responsible for its relationship with any third parties (notably the Users of
the Services) and shall indemnify and hold harmless ScoobyMedia against any action, claim or complaint
of third parties with respect to ScoobyMedia Services. The Client shall notify ScoobyMedia in writing, as
quickly as possible, of any such claims, complaints and/or legal action, detailing the subject matter
of the claim as well as any useful information so that ScoobyMedia may communicate to the Client any
items in its possession which may be appropriate. ScoobyMedia reserves the right to take part into such
litigations.
7.7.
Force majeure For the purposes of this article 7.7, "Affected Party" means a party to this Contract
which is affected by, or which claims to be affected by, a Force Majeure Event. "Force Majeure Event"
means an event the occurrence of which is beyond the reasonable control of the Affected Party,
including (without limitation) the following:
(a) Act of God (including earthquake or other natural
aisaster), act of terrorism, war or warlike operations, civil unrest or riot;
(b) default of third parties,
industrial action (other than of the Affected Party’s own workforce), fire, flood, explosion or malicious
damage, or failure of plant or equipment (but only to the extent that any of these is beyond the
reasonable control of the Affected Party); and (c) change of law, regulation or industry standard, or
governmental order or direction. Neither Party shall be in breach of this Contract nor liable for any
delay in performing, or failure to perform, any of its obligations under this Contract if such delay or
failure results from a Force Majeure Event. In such circumstances, the Affected Party shall inform the
other Party as quickly as possible in writing, detailing the circumstances and the expected duration
of the Force Majeure Event, and shall keep the other Party regularly informed of the status of the
situation. If, despite the efforts of the Affected Party in breach, the period of delay or nonperformance continues for more than thirty (30) consecutive days, the Party not affected may
terminate without liability whatsoever all or part of the Services affected by the Force Majeure Event
with immediate effect by giving notice to the Affected Party.
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8. FINANCIAL CONDITIONS
8.1.
Price of Services. The prices of the Services invoiced to the Client are those in effect at the time of
invoicing, as published on ScoobyMedia Website. The prices may also be communicated upon request
sent to ScoobyMedia Support. Unless stipulated otherwise, all prices are in GBP. ScoobyMedia offers
different types of rates depending on the type of Service (monthly flat-rate, yearly flat-rate, per use
pricing, etc.). These rates may be linked to a commitment to a particular Duration and/or a specific
method of invoicing. Should several types of prices be available for the same Service, the Client may
select the one of its choice when submitting its Order. All taxes applicable to the Services (excluding
taxes on ScoobyMedia revenue) shall be added to the price of the Services and due by the Client without
this being deemed a change in the price as set forth by article 8.2 of this Contract. In the absence of a
special pricing scheme, the prices of the Services shall include the cost of acquisition of the licenses
and rights to use the tools, software and Operating Systems used by ScoobyMedia and/or which are
made available to the Client by ScoobyMedia within the scope of the Services. The Client is responsible
for acquiring and fulfilling its obligations in respect of all licenses and usage rights that are necessary
to operate or make use of the Content within the scope of the Services. The methods for calculating
the price of the Services, as well as the billing units, are defined on the ScoobyMedia Website and in the
applicable Specific Terms of Service. The Client is responsible for taking note of this before
submitting its Order. Each billing unit begun shall be invoiced and due in full, even when it is not
totally used. Some Services shall incur additional installation or activation costs.
8.2.
Changes to prices. ScoobyMedia reserves the right to change its prices at any time. Pricing changes are
immediately applicable to any new Orders. If Services are in use at the time of a price increase, the
Client shall be informed of the change by email at least thirty (30) calendar days in advance. In such
a case and subject to article “Conditions Specific to Consumers” the Client has the right to terminate
without penalty the impacted Services within thirty (30) calendar days upon the notification of the
said price increase. Such termination shall be notified by registered letter with acknowledgement of
receipt or through a specific form provided in the Management Interface. In the absence of said
termination, the Client shall be deemed to have accepted the new prices.
8.3.
Invoicing. The Services shall be invoiced based on Client Orders and Services Services as established
by ScoobyMedia in its information system, which shall be deemed as admissible and fully enforceable to
the Client. The periodicity (monthly, yearly, or other) of invoices and the timing of their issuance
(upon ordering or in arrears) varies from one Service to another. The terms of invoicing of the prices
of the Services are defined on the ScoobyMedia Website and in the applicable Specific Terms of Service.
The Client is responsible for taking note of these before submitting its Order. After each payment,
ScoobyMedia shall send the Client an invoice. The Client expressly agrees that this invoice shall be sent
to it electronically. The invoice is sent to the Client by email and/or made available to the Client
through the Management Interface. The Client is responsible for keeping a copy of the invoice in
accordance with regulations in effect. Invoices made available to the Client in the Management
Interface shall remain available for a period of twelve (12) months thereafter.
8.4.
Payment. Depending on the Service, invoices are payable on receipt, it being understood that
invoices are issued either at the time of the Order, or in arrears. The Client is responsible for selecting
its desired payment method amongst the available payment methods in the Management Interface.
The available payment methods may vary from one Service to another and are published on
ScoobyMedia Website. The Client is responsible for taking note of this before submitting its Order. In
relation to Services payable in arrears, ScoobyMedia reserves the right to invoice the Client for said
Services before the end of a calendar month in the event that the total Services consumed by the
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Client during the month in question reach a significant amount. The Client is fully responsible for
payment of Services in accordance with the Contract. The Client undertakes to select a valid payment
method in its Client Account, and to maintain the necessary funds to pay for the Services throughout
the duration of the Contract. Except for the cancellation right set forth in article “Conditions Specific
to Consumers”, the Client remains liable to pay the price in its entirety. Consequently, (i) the Client
waives any right to claim any reimbursement resulting from the non-use, the partial-use, suspension
or cessation of the use of Services before the end of the Service Duration and (2) in the event of split
payment(s) (e.g. monthly, yearly installments), the Client remains liable to pay the price in its entirety
for the whole commitment period subscribed to at the time of the Order. Those provisions are
without prejudice to the Client’s right to engage ScoobyMedia’s liability in accordance with article
“Liability” hereafter in case such situation results from ScoobyMedia’s failure to fulfil its obligations.
8.5.
Default or late payment. In case of default or late payment, including partial payment, ScoobyMedia
may charge the Client (i) late payment penalties from the day following the payment due date and
(ii) interest on the overdue amount at the applicable rate under the Late Payment of Commercial
Debts (Interest) Act 1998, accruing on a daily basis from the due date up to the date of actual
payment, whether before or after judgement. Furthermore, as a result of such default or late payment
persisting for more than (4) calendar days after notification sent to the Client by email, without
requiring any additional notification or formal notice, (a) all of sums remaining due by the Client
under the Contract shall become due regardless of their payment terms, and (b) ScoobyMedia shall have
the right, immediately without prior notice, to suspend and all or part of the Client Services (including
those which have been paid for), to refuse any new Order or renewal of Services and to terminate all
or part of the Contract. In case of default or late payment, business Clients shall also be liable to pay
a fixed recovery fee of 40 (forty) GBP, without prejudice to ScoobyMedia’s right to demand, upon supporting
documents, additional compensation in cases where the recovery fees are greater than the amount
of said fixed recovery fee.
8.6.
Dispute. In the event of any disagreement regarding invoicing or the nature of the Services, the
Client must notify ScoobyMedia Support through its Management Interface within one (1) month of the
date the invoice was issued. In the absence of said notification, and without prejudice to the Client’s
right to contest the invoice later on, the Client shall be liable to settle all unpaid invoices according
to the terms of the Contract. In case of failure to invoice the Services correctly or in the appropriate
timeframe, ScoobyMedia reserves the right invoice or correct the invoicing at any time, subject to any
mandatory applicable limitation.
9. DURATION, RENEWAL AND TERMINATION OF SERVICES
9.1.
Services Duration. The Contract is entered into for an indeterminate period of time and remains in
effect so long as the Client uses the ScoobyMedia Services. The Services duration is stated with the
pricing selected by the Client when submitting its Order (the “Duration”). In case of flat-rate or fixed
sum payments (monthly, annual or other), and subject to Article “Conditions Specific to Consumers”
and section “Termination for breach”, Client undertakes to use the Services throughout the Duration.
In the event of early termination or suspension of Services, Client shall pay for the total price of the
Services without any reduction or refund. In case of payment per use, the Services are made available
for an indeterminate period of time, and the Client may terminate the Services at any time in
accordance with the procedures in effect.
9.2.
Services Renewal. Services renewal conditions vary from one type of Service to another, as set out
in the Specific Terms applicable to such Services. Some Services renew automatically (“Auto-
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Renew”) while others are renewed upon payment in advance by the Client. In cases of Auto-Renew,
Client is responsible for selecting the renewal method of its choosing and the initial commitment
period. For certain Services, the Auto-Renew mode is activated by default. Renewals subject to
advance payment will be automatically rejected in case of default in payment or irregular payment
(incorrect amount, incomplete payment, payment which does not include the required references,
or issued using a method or procedure not accepted by ScoobyMedia). In case of payment by cheque,
Client is responsible to initiate the Services renewal and corresponding payment early enough for the
cheque to be effectively received by ScoobyMedia before the expiry date of the Services. ScoobyMedia
reserves the right to terminate the renewal, notably, with a reasonable prior notice, in case of a
Service’s end of life.
9.3.
Termination for breach. Without prejudice to other termination rights provided in the Contract,
either Party may terminate this Contract with immediate effect by giving written notice to the other
Party if the other Party breaches any provision of this Contract, which breach is irremediable or (if
such breach is remediable) fails to remedy that breach within a period of seven (7) calendar days after
being notified by registered letter with acknowledgement of receipt to do so.
Notwithstanding the foregoing, in case of malicious, illicit or fraudulent use of the Services, or a
breach of Article 3 “Terms of use of the Services” of these General Terms of Service, or use made in
violation of the rights of a third party, ScoobyMedia shall be entitled to terminate the relevant Services
or the Contract in its entirety with immediate effect by email and without prior formal notice. The
present paragraph shall not be deemed a waiver of ScoobyMedia’s right to suspend or interrupt the
Services in accordance with the provisions of the Contract, particularly in case of non-compliance by
the Client with the Terms of Service. Terminations for breach are without prejudice to any damages
which may be claimed by the injured party.
10. CONFIDENTIALITY
10.1.
Commitments. Each of the Parties undertakes, regarding any confidential information it receives
from the other Party or to which it has access to during the present Contract, to (a) use this
confidential information only for the sole purposes of executing the Contract, (b) preserve the
confidentiality of said information with the same degree of care used for its own confidential
information, and (c) give access to said confidential information only to its associates and Affiliates
who need to know the information as part of their function and provided that these recipients have
received prior notification of the confidential nature of the information and are bound by a
confidentiality agreement at least as protective as these provisions. Each Party is also allowed to
communicate the other Party’s confidential information to its counsels as long as they belong to a
regulated profession (e.g. lawyers, barristers, certified accountants and auditors). The Parties shall
not share or give access to the other Party’s confidential information to other persons than those
referred to above without the prior written consent of the other Party. The Parties shall be liable for
any failure to respect the obligations and restrictions by its representatives and by the third parties to
whom it has shared confidential information with. Shall be considered confidential the Contract’s
provisions and all information communicated between the Parties, or to which the Parties have access
during the execution of the Contract, regardless of its form and nature (such as, without limitation,
financial information, marketing information, trade secrets, know-how, information related to
security and to the Services terms of use). To be considered as a confidential information, it is not
necessary that the confidential nature of the information be mentioned on the document or other
media containing the information or indicated upon its divulgation. The Parties undertake to comply
with this confidentiality obligation for the entire Duration of the Contract as well as for a period of two
(2) years from its termination, regardless of the cause.
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10.2.
Exceptions. The confidentiality commitments defined above shall not apply to information for
which the recipient Party can demonstrate that (a) the recipient Party became legitimately aware of
the information without being required to keep them confidential prior to the other Party having
shared it, or (b) the information is, or becomes, publicly available through no fault of or failure to act
by the receiving Party (or persons for which it is responsible) in breach of this Contract, or (c) the
information becomes rightfully known to the receiving Party from a third-party source not known
(after diligent inquiry) by the receiving Party to be under an obligation to maintain its confidentiality,
(d) is independently developed by the receiving Party subsequent to such disclosure, by employees
without access to, or use of, the other Party’s confidential information, or (e) the divulgation of the
said information was authorised by the other Party as provided in the Contract’s provisions.
Notwithstanding the preceding, each of the Parties reserves the right to disclose information
received from the other Party (a) for the sole purpose of defending its rights, provided that the
confidential information shall be retained for the time legally required for their use as evidence, and
only be disclosed to those persons who need to know them within the course of the legal action or
procedure in question (judges, lawyers, etc.), those persons being bound by professional secrecy or
otherwise by a confidentiality agreement, or (b) at the request of a competent legal or judicial
authority, provided that the disclosure shall be strictly limited to the request of said authority, and,
subject to any legal requirements or injunctions to the contrary, the recipient Party shall inform the
other Party of said request.
11. GENERAL PROVISIONS
11.1
.Severance. If any provision of this Contract, or the application of such provision, is determined by a
court of competent jurisdiction to be invalid or unenforceable for any reason and to any extent, the
said provision shall be interpreted by the courts in a way that stays as close as possible to the original
intent of the Parties.
The Parties will modify that provision with a valid and enforceable provision that to greatest extent
possible, achieves the intended commercial result of the original provision. All other provisions of
this Contract remain in full force and effect.
11.2. Titles. The article and paragraph headings are for convenience only and shall not affect the
interpretation of this Contract.
11.3. Waiver. No failure or delay by ScoobyMedia to exercise any right or remedy provided under this
Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent
or restrict the further exercise of that or any other right or remedy. No single or partial exercise by
ScoobyMedia of such right or remedy shall prevent or restrict the further exercise of that or any other
right or remedy.
11.4.
Entire agreement. The Contract is made up of the Terms of Service which constitute the entire
agreement between the Client and ScoobyMedia in relation to its subject matter, excluding any Client’s
general terms and conditions, other documents, discussions and previous exchanges between the
Parties. It replaces and extinguishes all prior agreements, arrangements, collateral warranties,
collateral contracts, statements, assurances, representations and understandings of any nature
made by or on behalf of the parties in relation to the same, whether oral or written. Each party
acknowledges that in entering into this Contract it has not relied upon any oral or written statements,
collateral or other warranties, assurances, representations or undertakings which were made by or
on behalf of the other party (whether innocently or negligently) in relation to the subject-matter of
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this Contract at any time before its signature (together "Pre-Contractual Statements"), other than
those which are set out in this Contract. Each party hereby waives all rights and remedies which might
otherwise be available to it in relation to such Pre-Contractual Statements. Nothing in this article
10.14 shall exclude or restrict the liability of either party arising out of its pre-contract fraudulent
misrepresentation or fraudulent concealment.
ScoobyMedia may, at any time and by right, amend the Terms of Service in effect. Such amendments
shall be immediately applicable to every new Orders. The Client will be notified via email or through
its Management Interface of any amendment to the Terms of Service applicable to Services currently
delivered to Client. Such changes to the Terms of Service shall be in effect thirty (30) calendar days
after the notification is sent. Notwithstanding the foregoing, any change to Third Party Product
Terms of Use and any implementation of a new regulation may be immediately applicable to the
extent ScoobyMedia does not control such events. Subject to conditions applicable to Consumers, if the
new Terms of Service should be less favorable to the Client, Client may terminate the corresponding
Services within thirty (30) calendar days following the new Terms of Service entry into effect. Such
termination shall be notified via registered letter with acknowledgement receipt or via the form
provided in the Management Interface.
11.5.
No Partnership or Agency. Nothing in this Contract is intended to, or shall be deemed to, establish
any partnership or joint venture between the Parties. The Parties remain independent contractors in
the course of their business, neither party being the agent of the other Party. Nothing herein
authorises either Party to make or enter into any commitments for or on behalf of the other Party.
Each Party confirms (i) it is acting on its own behalf and not for the benefit of any other person and
(ii) it is fully independent and responsible for the management of its business and affairs, as well as
for all of its actions, and will assume all the risks related to its activities.
11.6.
Assignment. Neither Party shall assign or transfer any or all of its rights and obligations under this
Contract without the prior written consent of the other Party. Notwithstanding the foregoing, each
Party shall be entitled to transfer all or part of the Contract to its Affiliates, provided it notifies the
other Party in writing as soon as reasonably practicable and it remains liable for any breach of this
Contract by said Affiliates. The following operations shall not be considered assignments or transfers
pursuant to this article and are therefore authorised:
(a) changes in shareholders, changes of
holdings, or change of control of either Party, and
(b) mergers, acquisitions, sale of business assets
or activity, divestments, or any other operations which involve a transfer of the assets of either Party.
If one of the Parties performs one of the operations mentioned in point
(a) or (b) above, it shall inform
the other Party. If the operation is performed to the benefit of a direct competitor of the other Party
or a party with whom the other Party has a pre-existing dispute that other Party shall have the right
to terminate the Contract without damages being due.
11.7.
Notices. Information communicated by email shall be deemed received at the time indicated by
ScoobyMedia server. This information shall be retained by ScoobyMedia for the entire Duration of the
Contract and for the three (3) years thereafter. Unless other means of communication orrecipient are
stated in the Contract, all notifications, formal notices and other communications provided for in the
Contract shall be deemed validly delivered if they are sent to: [email protected]
ScoobyMedia: By registered letter with acknowledgment of receipt at Support Service -
Client: By registered letter with acknowledgment of receipt at the postal address provided by the
Client in its Client’s account or by email at the email address indicated in its Client’s account.
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11.8.
Advertising and promotion. Unless otherwise decided by the Client via the form available for such
purpose in its Management Interface, ScoobyMedia is allowed to mention its commercial relationship
with the Client in its usual course of business towards clients and prospects. Any other mention by
ScoobyMedia about the Client, and any other use of signs (logos, trademarks, etc.) notably for
advertising purposes, exhibitions, conferences and in specialised publications for market
professionals, as well as in its brochures, commercial documents and ScoobyMedia website is submitted
to Client’s prior consent.
11.9.
Admissible evidence. It is expressly agreed that the data of the ScoobyMedia information system or of
its subcontractors, such as login logs, consumption records, order and payment summaries, Incident
reports or other reports, can be used as evidence vis-à-vis the Client, and are deemed as admissible
including in the context of legal disputes.
11.10.
Computation of time. Time periods shall be calculated in calendar days and are counted starting
on the next day of the event triggering them.
11.11.
Survival. Notwithstanding the expiry of the term or early termination of this Contract, the
provisions of Articles "Confidentiality", "Responsibility", "Intellectual Property”, "Notices",
"Jurisdiction and Applicable Law" of the Contract which, by their nature or as a result of specific
provisions, extend beyond the term or this termination, both for the Parties and for their assignees,
until their respective expiry dates.
11.12.
Language. The Parties hereto have specifically requested that the Contract and any documents
relating thereto be written in the English language.
12. JURISDICTION AND APPLICABLE LAW
12.1.
Jurisdiction. The Parties irrevocably agrees that the courts of England and Wales shall have
exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract
or its subject matter or formation (including any disputes or claims relating to non-contractual
obligations).
12.2.
Applicable law. This Contract and any dispute or claim arising out of or in connection with it or its
subject matter or formation (including disputes or claims relating to non-contractual obligations)
shall be governed by and construed in accordance with the laws of England and Wales without giving
effect to principles of conflict of laws that would require the application of any other law.
13. DEFINITIONS
“Affiliate” means with respect to each Party, any entity which is (i) directly or indirectly controlled by such
Party, (ii) directly or indirectly controlling such Party, or (iii) under the same direct or indirect control as such
Party, provided that ''control'' means (a) the ownership of fifty percent (50%) or more of the voting rights or
other ownership interest in an entity, or (b) the ability to direct the business affairs or the composition of the
board of directors or equivalent body of another entity, whether through the ownership of voting rights, by
contract or otherwise.
“Client Account” (or Username or Email) means reference Account/Client login allowing the Client to subscribe
to ScoobyMedia Services.
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“Content” means information, data, files, systems, applications, websites and other items which are
reproduced, hosted, collected, stored, transmitted, distributed, published, and more generally used and/or
operated by the Client within the scope of the Services.
“Incident” means any event which causes or is likely to cause an interruption or disruption of the Services
provided to the Client by ScoobyMedia.
"Infrastructure" means all physical and virtual elements belonging to the ScoobyMedia Group or under its
responsibility, made available by ScoobyMedia in the context of the Services, such as for instance network,
bandwidth, physical resources and software and/or applications.
"Sanctions" means the applicable laws, regulations, embargoes and restrictive measures administered,
enacted or enforced by the European Union, France, any other European Union Member State, the United
Kingdom, the United States of America, the United Nations (including the respective governmental
authorities of any of the foregoing), and any other applicable sanctions authority, relating to economic or
trade sanctions, export or trade controls, non-proliferation, anti-terrorism and similar laws, regulations, rules
or requirements in force from time to time.
"Management Interface" or "Manager" means interface made available by ScoobyMedia, accessible by Client
remotely after authentication (by login and password).
"Order" means any order for Services submitted by the Client.
“ScoobyMedia Elements” means all elements (including software, data, Infrastructure, documents, etc.) made
available to the Client by ScoobyMedia as part of the Services pursuant to this Contract.
“ScoobyMedia Support” means ScoobyMedia team responsible for assisting the Client and handling Incidents.
“ScoobyMedia Website” means ScoobyMedia website accessible at ScoobyMedia.ovh or any other derivative
website belonging to one of its Affiliates.
"Services" means any services, such as the use of products, ScoobyMedia Elements (infrastructure, network, etc.)
and access to support, provided by ScoobyMedia to Client under the Contract.
"Specific Terms of Service" means the document describing one or more Services provided by ScoobyMedia,
setting out the terms and conditions of performance and use specific to such Service(s), and published on
ScoobyMedia Website or available to the Client upon request to ScoobyMedia Support.
“Terms of Service” means the most recent version of the terms and conditions applicable to Orders, including
but not limited to the General Terms of Service and the Specific Terms of Service applicable to relevant
Services, available on ScoobyMedia Website or upon request to ScoobyMedia Support.
"Third Party Products" means any product (such as an operating system, application, firewall, or hardware
component) developed and owned by a third party and made available to the Client by ScoobyMedia, or that the
Client has directly or indirectly procured from such third party.
“Third Party Product Terms of Use” means contractual terms specific to the use of Third Party Product
made available by ScoobyMedia in connection with the Services.
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“Third-Party Providers” means third parties including but not limited to, energy providers, network
providers, network interconnection point managers or collocated datacenters, equipment and software
providers, carriers, technical providers, security companies.
"User(s)" means the Client and any other person(s) accessing or using the Services (including access to or use
of any products configured within the Services by ScoobyMedia, the Client, its own clients or any third party) under
the responsibility of the Client.
14. PROVISIONS APPLICABLE TO CONSUMERS
These provisions apply only to Clients who are considered consumers under applicable consumer protection
legislation and supplement the other provisions of these General Terms of Service, which remain fully applicable
to said Clients subject to the provisions to which article 14.2 below expressly derogates.
14.1.
Additional stipulations.
This section 14.1
Supplements the other provisions of these General Terms
of Service, which remain fully applicable to Clients consumers.
14.1.1.
Provision of the Services.
ScoobyMedia undertakes to deliver the Service to the Client within the
timeframe indicated on the Order. If no timeframe has been indicated or if there is no agreement
on the delivery date, ScoobyMedia shall provide the Service within fifteen (15) days following
ScoobyMedia confirmation of the Order. Should the Service not be provided with the
aforementioned time, the Client may request the cancellation of the Order by registered letter
with acknowledgement of receipt or by creating a ticket through its Management Interface
indicating in the subject message “Termination for non-delivery of the Services”. Amounts paid
in advance by Client for these canceled Services shall be reimbursed within fourteen (14) days
following the Order cancellation.
Right of cancellation.
Pursuant to the Consumer Contracts Regulations 2013, the Client enjoys
the statutory right of cancellation. Client may exercise this right, without having to justify its
reasons nor pay any penalties other than any return fees, within a period of fourteen (14) days
from the day after the Order. The cancellation right shall be exercised before the expiry date
aforementioned either via the form available for such purpose in the Management Interface or
by filling the following cancellation form and addressing it to ScoobyMedia by registered letter with
acknowledgement of receipt, or by any other declaration clearly expressing its wish to exercise
this right.
Cancellation form:
“To the attention of ScoobyMedia"
(Support Service) via manager
The right of cancellation, when legitimately exercised, allows the Client to obtain
reimbursement for the goods and Services concerned by the exercise of said right, subject to
any reduction that ScoobyMedia may apply to reflect the value of the Services actually received by
the Client at the time that it exercises its right to cancel. ScoobyMedia will make it's actioned.
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reimbursement using the same means of payment used for the initial transaction, unless the
Client has expressly agreed otherwise. Client cannot exercise its right of cancellation for
Services which have been fully performed before the end of the cancellation period or for goods
and Services manufactured according to the consumer’s specifications or clearly customised.
Therefore, the Client is informed when placing the Order and is invited to waive its right of
cancellation in such circumstances.
Complaints.
All complaints regarding ScoobyMedia Services may be addressed:
- Firstly to the Customer service via the form available to the Client in its Management Interface.
- Secondly, if the Client has not received a reply within thirty (30) calendar days following the
receipt of its complaint, or in the event the Client is not satisfied with the response provided by
the Client Service, to: ScoobyMedia – National Customer Service –
Email: [email protected] The complaint of the Client shall be reviewed within thirty (30)
calendar days from the date of its receipt by the ScoobyMedia National Consumers Service.
- Thirdly, if the Client wishes to have more information on online dispute resolution, please
follow this link to the website of the European Commission:
http://ec.europa.eu/consumers/odr/. This link is provided as required by Regulation (EU) No
524/2013 of the European Parliament and of the Council, for information purposes only.
ScoobyMedia is not obliged to participate in online dispute resolution.
Guarantees. The Client may have statutory rights granted by law. These rights include the
obligation of ScoobyMedia to perform the Services with reasonable care and skill in accordance
with the Consumer Rights Act 2015. For more information about consumers’ legal rights, the
Client may consult the Citizen Advice website located at
https://www.citizensadvice.org.uk/consumer/. These General Terms of Service shall not affectsuch Client’s legal rights.
14.2. Overriding stipulations
. The following provisions replace the provisions of these General
Terms of Service to which they expressly derogate.
(derogates article 3.8)
Updates to Services.
ScoobyMedia may, at its sole discretion, modify the
Services at any time, and add, modify or remove Services ranges, options or features, as well as
upgrade their performance. Services are described online on the ScoobyMedia Website. The Client is
responsible for keeping abreast of any updates to the Services, which are immediately
applicable to any new Orders. Concerning the Services in use by the Client, the latter shall be
informed by email or via its Management Interface of any substantial updates which are of a
nature to downgrade said Services, at least thirty (30) days before their implementation.
Nevertheless, modifications to Third Party Products and urgent cases (such as security risks, or
legal or regulatory compliance updates) may result in immediate modifications to the Services.
In case of any update that downgrades existing Services (removal of functionality, performance
downgrade, etc.), the Client may terminate the relevant Services by registered letter sent to
ScoobyMedia address indicated at the section 14.1.3. “Complaints” or through a form provided for
in its Management Interface, within four (4) months from the date the relevant update is
implemented.
(derogates article 8.1)
Price of Services. The prices of the Services invoiced to the Client are
those in effect at the time of that the Client submits the Order, as published on the ScoobyMedia
Website, and include VAT. The prices may also be communicated to the Client upon request
from the Client to ScoobyMedia Support. Unless stipulated otherwise, all prices are in US.
ScoobyMedia offers different rates depending on the type of Service (monthly flat-rate, yearly flatrate, per-use pricing, etc.). These may be linked to a commitment to a particular period of time
and/or a specific method of invoicing. Should several prices be available for the same Service,
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Client may select the one of its choice when submitting its Order.
Some Services are only available for business Clients, not for individual consumers. The prices
of these Services are listed exclusive of any tax. In the absence of a special pricing mechanism,
the prices of the Services shall be deemed to include the cost of acquiring the licenses and rights
to use the tools, software and Operating Systems provided by ScoobyMedia and/or which are made
available to the Client in the provision of the Services. The Client is responsible for acquiring
and fulfilling its obligations in respect of all licenses and usage rights that are necessary to
operate or make use of the Content within the scope of the Services. The methods for
calculating the prices of the Services, as well as the billing units, are defined on the ScoobyMedia
Website and in the applicable Specific Terms of Service. Each billing unit begun shall be
invoiced and due in full. The Client is responsible for taking note of this before submitting its
Order. Some Services shall incur additional installation or activation costs.
(derogates article 8.2)
Changes to prices.
ScoobyMedia reserves the right to change its prices at
any time. Pricing changes are immediately applicable to any new Orders. For Services in use at
the time of an increase in their price, the Client shall be informed of the change by email at least
thirty (30) days in advance. In such case the Client, upon notification of said increase, has the
right to terminate the impacted Services within four (4) months without penalty. Such
termination shall be notified by registered letter with acknowledgement of receipt sent to
ScoobyMedia address indicated at the section 14.1.3.
“Complaints” or through a form provided for
such purpose in the Management Interface.
(derogates article 8.5)
Default or late payment. If the Client fails to make any payment due to
ScoobyMedia under the Contract by the due date for payment, then, the Client shall pay interest on
the overdue amount at the rate of 1% (one percent) per annum above the Bank of England's
base rate or the maximum rate authorized by laws if less. Such interest shall accrue on a daily
basis from the due date until actual payment of the overdue amount, whether before or after
judgment. The Client shall pay the interest together with the overdue amount. Furthermore, as
a result of such default or late payment persisting for more than (4) calendar days after
notification sent to the Client by email, without requiring any additional notification or formal
notice,
(a) all of sums remaining due by the Client under the Contract shall become due
regardless of their payment terms, and (b) ScoobyMedia shall have the right, immediately without
prior notice, to suspend and all or part of the Client Services (including those which have been
paid for), to refuse any new Order or renewal of Services and to terminate all or part of the
Contract.
14.2.5
(derogates article 11.4)
Entire agreement. The Contract is made up of the Terms of Service
which comprise the entirety of the Contract entered into between the Client and ScoobyMedia and
exclude any general terms and conditions of the Client and any other prior documents,
agreements, or discussions. ScoobyMedia may, at any time and by right, amend the Terms of
Service in effect. Such amendments are immediately applicable to every new Orders. About
those Services in use, the Client shall be notified via email or through its Management Interface
of any amendment to the Terms of Service in effect. Changes to the Terms of Service are in effect
within thirty (30) calendar days from the date the aforementioned notification is sent.
Notwithstanding the Third Party Product Terms of Service and legal and regulation compliance
may be immediately applicable. The Client may terminate the affected Services by within four
(4) months from the new Terms of Service in effect. Such termination shall be notified via
registered letter with acknowledgement receipt, or the form provided in the Management
Interface.
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(derogates article 12.1)
Jurisdiction. In case of dispute with the Client, the Court of the place of
residence of the defendant shall have express jurisdiction, or, at the choice of the Client, the
Court of the place to which the goods were delivered or the place where the services were
provided.
By using our hosting services, you acknowledge that you have read, understood, and agree to be bound by these Terms of Service.
