July 4, 2022 version
The present general conditions of service are concluded between :
Simplified joint stock company with a capital of 650,297 euros,
Whose head office is located at 78 rue de la Gare in Croix (59170) in FRANCE,
Registered with the RCS of LILLE MÉTROPOLE under the number 879 276 723,
Taken in the person of its legal representative
Hereinafter referred to as “AUSHA“,
On the one hand,
Any professional wishing to subscribe to AUSHA’s services on the basis of a quotation, including access to the AUSHA platform accessible via the website https://app.ausha.co (hereinafter referred to as “the Platform”).
Hereinafter referred to as “the Customer”,
On the other hand,
Hereinafter collectively referred to as “The Parties” and individually as “The Party”.
AUSHA is a platform for hosting and broadcasting podcasts, allowing customers to publish and manage their podcasts.
AUSHA’s services can be subscribed to through standard offers available online at https://app.ausha.co or through personalized offers established by quotation (reserved for companies). The present general terms of service apply only to the second category of offers.
Any Order placed with AUSHA implies the full and complete acceptance by the Client of these general terms of service. These terms and conditions shall prevail over any other general or specific terms and conditions of the Client.
AUSHA reserves the right to modify these general conditions of service at any time. However, it is agreed that the conditions applicable to the Customer will be those in force on the date of the Order.
The present general conditions of service are the exclusive property of AUSHA. Any reproduction, even partial, is strictly forbidden.
“Customer”: refers to the professional within the meaning of the Consumer Code who places an Order with AUSHA.
“Access Code”: means the personal identifier and password allowing the User to access the Customer’s Account.
“Order”: means the subscription to AUSHA’s Commercial Proposal by the Client.
“Account”: refers to the management space dedicated to the Client.
“Content”: refers to all audiovisual, textual, audio, graphic and photographic elements and hypertext links sent, transmitted, distributed and published by the Client via the Platform in any form whatsoever (Podcast, Package, Newsletter, etc.), excluding elements from AUSHA’s databases.
“Broadcast” or “Podcast” means the production of multiple audio files (Episodes) bundled together and available on the Internet.
“Episode”: refers to an audio sequence belonging to the Show. The Episode is defined by a title, a description and an image.
“RSS Feed”: means a file containing textual information about the Show and the Episodes. It is automatically updated each time the Show and Episodes change.
“Platform”: means the interactive tool offered by AUSHA, accessible via the website https://app.ausha.co.
“Cover”: means the image, the cover, illustrating the Podcast published by the Client.
“Commercial Proposal” or “Quotation”: refers to the commercial proposal and any annexes describing the terms and conditions of AUSHA’s offer: services subscribed to, deadlines, prices, any reservations, duration of validity of the offer, etc.
“Service”: all or part of the functionalities of the Platform and any other services provided by AUSHA (white label, personalized support, training, etc.) as specified in the Quotation.
“User” means the Customer, the Customer’s associates, the Customer’s own employees or the employees of companies with which the Customer has a contractual relationship, who have access to the Platform.
The purpose of the present terms and conditions is to define the contractual relationship between AUSHA and the Client and, in particular, the terms and conditions under which the Client places an Order.
The contract documents are in the following order of precedence:
the Commercial Proposal,
the present General Terms of Service,
the General Conditions of Use.
In the event of contradiction between them, the contractual documents shall prevail over one another in the order indicated above. They cancel and replace any contractual document previously signed between the Parties having the same object and in progress.
The Platform is accessible from a computer connected to the Internet and has functionalities allowing Clients to manage the publication and broadcast of their Shows and Episodes, to consult their listening statistics, to store Content, to communicate their Shows and/or Episodes via the RSS Feed, a public page, an audio player or social networks, to invite their listeners to subscribe to Newsletters and to send Newsletters and to program advertising spots.
The features to which the Customer has access are based on the Commercial Proposal.
Acceptance of the Commercial Proposal by the Client before the expiry of its period of validity constitutes a firm Order. All Orders are irrevocable, unless modified or cancelled in writing by AUSHA.
AUSHA will immediately send the Client an e-mail confirming the Order registered and containing the information provided by the Client.
All data provided and the recorded confirmation are considered proof of the transaction. AUSHA will archive the Orders and Order confirmations on a reliable and durable medium constituting a reliable copy, in accordance with Article 1379 of the French Civil Code.
Additional requests will be subject to a new Commercial Proposal under the same conditions.
If, during a previous Order, the Customer has evaded all or part of its obligation to pay the price stipulated, AUSHA may legitimately refuse to provide the Customer with a Commercial Proposal or to validate any new Order.
The Contract takes effect from the date of validation of the Commercial Proposal by the Customer for an initial period of one (1) year.
It will be renewed by tacit agreement for successive periods of 1 (one) year, unless terminated by email to [email protected] at least one (1) month before its anniversary date.
The Services are provided at the price mentioned in the Commercial Proposal drawn up by AUSHA and accepted by the Client. The prices are expressed exclusive of taxes. They are increased by the taxes in force on the day of the Order.
An invoice showing VAT will be sent to the Customer by e-mail.
Invoices are payable by credit card, bank transfer or direct debit within thirty (30) days from the date of the Order for the initial period, and then from each anniversary date of the Contract for each renewal period.
Payment for the Services subscribed to is due for the entire duration of the Contract, including when the Contract is terminated early on the basis of a contractual breach attributable to the Customer.
Any sum not paid on its due date by the Customer automatically produces, on the amount of the sum remaining due :
a fixed indemnity for collection costs of forty (40) euros, without prejudice to AUSHA’s right to request additional compensation if the collection costs incurred are higher than the fixed indemnity;
late payment interest at the rate of three times the legal interest rate, until full payment of the amount due by the Customer.
In the event of non-compliance with the terms of payment referred to in the Contract, AUSHA also reserves the right to:
– suspend the execution of its obligations, including the Customer’s access to the Platform, until full payment of the outstanding amounts;
– to require cash payment before any new Order.
AUSHA reserves the right to modify its rates at any time, provided that the following stipulations are met:
The price of the Services, as initially subscribed by the Customer, will remain applicable until the renewal date of the Contract. Any change in the prices will only be effective as of that date.
AUSHA will inform the Client of the change in its rates sufficiently in advance to allow the Client to terminate the Contract under the conditions set out in article 5 of these general terms of service, if it does not accept the new rates.
Customers whose subject matter of the Contract does not fall within the scope of their main activity and whose number of employees is less than or equal to five (5) have a right of withdrawal under the conditions below.
The Customer has a fourteen (14) day withdrawal period, which starts the day after his subscription, without having to justify his decision or pay any penalties.
This request must be made by registered letter with return receipt addressed to AUSHA.
In the event that the right of withdrawal is exercised, AUSHA will reimburse the Customer in full for all sums paid without undue delay and, at the latest, within fourteen (14) days from the date on which it was informed of the Customer’s decision to withdraw.
The refund will be made by the same means of payment as the one used by the Customer for the initial transaction, unless the Customer expressly agrees that AUSHA may use another means of payment and as long as this refund does not incur any costs for the Customer.
The exercise of the right of withdrawal terminates AUSHA’s obligation to provide the Services.
The Services will be made available to the Client on the dates and/or within the deadlines that may be indicated in the Commercial Proposal, these dates and/or deadlines being purely indicative. AUSHA will not be held responsible for any failure to meet these dates and/or deadlines.
The use of the Platform is possible as soon as the Customer has received the terms of access to his Account.
AUSHA undertakes to take reasonable measures to ensure that the Platform is accessible via the Internet 365 days a year, 24 hours a day, 7 days a week, with the exception of cases of force majeure, technical and/or computer and/or telecommunication difficulties and/or periods of maintenance (including updates).
AUSHA will not be held responsible for any unavailability of the Platform related to the Client’s Internet connection, equipment or maintenance operations necessary for the proper functioning of the Platform.
AUSHA reserves the right to interrupt, immediately and without prior notice, access to the Platform:
In order to carry out a technical intervention or any maintenance operation.
Whenever possible, AUSHA will inform the Client in advance.
If AUSHA receives a notice from a competent, administrative, arbitral or judicial authority, in accordance with the applicable laws or from a third party and, in particular, in accordance with the Law for Confidence in the Digital Economy of 21 June 2004.
In the event of use of the Platform in a manner contrary to this Agreement.
AUSHA reserves the right to make changes to the presentation, operation or functionality of the Platform at any time without prior notice to the Client.
AUSHA does not guarantee that the functionalities of the Platform are suitable for any particular use intended by the Client, and it is the Client’s responsibility to verify the suitability of the functionalities provided for his/her needs.
AUSHA provides the hosting of the Platform in conditions of security of access and premises in accordance with the rules of the art.
AUSHA provides the evolutionary and corrective maintenance of the Platform in such a way as to ensure its continuity and availability within the framework of an obligation of means.
The Client will automatically benefit from any updates made by AUSHA to the corresponding version of the Platform that it uses.
The Customer assures having taken knowledge, before the acceptance of the present, of the technical characteristics and the security devices of the Platform.
The Customer is responsible for all the equipment (hardware and software) required to use the Platform via the Internet. It must regularly update its equipment and its Internet connection, necessary for the proper functioning of the Platform.
AUSHA will not be held responsible for any incompatibility of the Platform with all of the Client’s equipment (hardware and software) that may result, in particular, from incompatibility with the version of the Client’s terminal or from the Client not updating the Platform.
AUSHA will not be held responsible for the availability of the Platform with any new equipment (hardware and software) for which the Platform is not up to date.
The use of the Platform is limited to the number of Users defined in the Order.
The Customer shall be responsible for the compliance of the Users with the Agreement and shall be solely liable in case of breach of the Agreement by the Users.
It is specified that access to the Customer’s Account is secured in such a way as to permanently protect, from third parties not authorized to take cognizance of it, all the Customer’s and/or User’s data that are brought to circulate through the systems within the framework of the use of the Platform.
The Customer is informed that the Access Codes allowing access to an Account are personal and confidential and that they cannot be communicated to third parties.
The use and preservation of the Access Codes is the sole responsibility of the Client, who will be solely responsible for the consequences that may result from their use by third parties who have knowledge of them. AUSHA will not be liable for any loss or damage arising from the Customer’s failure to comply with these requirements.
In the event of the loss or theft of the User’s login details, the Client undertakes to have the User change the password or to request its regeneration through the procedure established by AUSHA to recover the Access Codes as soon as possible.
The Customer guarantees that all information provided when subscribing to the Subscription is correct and undertakes to update it regularly.
In general, AUSHA undertakes to implement all technical means, in accordance with the state of the art, to maintain the integrity, security and confidentiality of access to the Platform.
However, the Customer remains solely responsible for the complete and regular backup of his data. He undertakes to back up his data and to ensure the security and confidentiality of said data.
AUSHA is only bound by an obligation of means with respect to the commitments contained herein.
The Client is aware of the technical hazards inherent in the Internet and the interruptions in access that may result. Therefore, AUSHA will not be held responsible for any unavailability or slowdown of the Platform.
The Parties expressly agree that AUSHA shall also not be liable for any interruptions to the Platform or damages related to:
to a decision of the authorities or to a case of force majeure as defined in article 1218 of the Civil Code and by French jurisprudence;
an interruption in the supply of electricity or transmission lines due to public or private operators;
abnormal or fraudulent use by the Customer or third parties requiring the platform to be stopped for security reasons;
to an intrusion or fraudulent maintenance of a third party in the system, or to the illicit extraction of data, in spite of the implementation of the means of securing in accordance with the current state of the art, AUSHA bearing only an obligation of means with regard to the known techniques of securing;
the nature and content of the information and data created, transferred and/or communicated by the Client. In general, AUSHA cannot be held responsible for any data, information, results or analyses originating from a third party, transmitted or received through the use of the Platform that infringe the rights of third parties or that violate current legislation in any way;
loss or delay in the delivery of information and data, when AUSHA is not the cause of the delay;
the operation of the Internet network or telephone or cable networks for access to the Internet not implemented by AUSHA;
to a failure of the hosting servers.
The Client waives the right to take any recourse against AUSHA in the event of legal action being taken against it by a third party due to the illicit use or exploitation of the Platform.
AUSHA will not be held responsible for indirect damages or losses, loss of profit or anticipated savings, loss of income, loss of clients, loss of data or files, damage to the Client’s brand image or damages that do not result directly and exclusively from a failure of the Platform, nor from recourse by third parties.
In any case, the Parties agree that the total amount of the sums that AUSHA could be held liable for if it were to be held liable for any reason whatsoever will be limited to the sums actually paid by the Client to AUSHA during the term of the present contract.
The Platform is the exclusive property of AUSHA.
AUSHA is the owner of all the intellectual property rights relating to the Platform and, in particular, of all the graphic, sound, textual and software elements, including the underlying technology, or of any other nature, that make up the Platform.
The Client thus undertakes not to infringe AUSHA’s intellectual property rights and, as such, is prohibited from reproducing, representing, translating, modifying or disseminating, even partially, any element protected by intellectual property rights, without AUSHA’s prior express authorization.
Any reproduction of an element of the Platform by the Client without authorization from AUSHA constitutes an act of infringement that may be subject to criminal and civil prosecution.
The establishment of deep hyperlinks to the Platform is subject to the express prior consent of AUSHA.
The Customer is also prohibited from exploiting, in any capacity whatsoever, the Content and information appearing on the Platform.
Neither Party shall be considered in default hereunder if the performance of its obligations, in whole or in part, is delayed or prevented by the occurrence of a force majeure event as defined by Article 1218 of the Civil Code and by French case law.
In the event of a force majeure event, the Party affected by the force majeure shall promptly inform the other Party of its duration and foreseeable consequences, and shall use its best efforts to limit its scope.
Should such circumstances continue for more than fifteen (15) days, the Parties agree to enter into discussions to modify the terms of their mutual commitments.
If no commitment is possible, then these commitments may be eliminated by either Party without damages, by simple written notification by registered letter with acknowledgement of receipt.
Each Party undertakes to treat as confidential, and not to reproduce or disclose, other than for the sole purpose of performing the Contract, any information provided by the other Party for the implementation and during the performance of the Contract and which, by reason of its technical, commercial or financial content, should be considered as confidential as it includes elements that are not publicly disclosed and/or are purely personal to the Party concerned.
This obligation of confidentiality shall not apply to information that the Party can demonstrate has come to its attention in a manner other than under the Contract or that is in the public domain.
This duty of confidentiality shall also not apply where a Party is obliged to provide information pursuant to legal provisions, orders issued by a public body or court decisions.
The obligations of the Parties with respect to the confidential information shall remain in effect for the duration of the Contract and for as long after its termination as the information concerned remains confidential to the disclosing Party and, in any event, for a period of two (2) years after termination of the Contract.
Any serious breach by one of the Parties of any of its obligations under the Contract, not remedied within fifteen (15) days of the sending of a registered letter with acknowledgement of receipt, shall entitle the other Party to unilaterally terminate this Contract, without prejudice to any damages to which it may be entitled hereunder, and subject to compliance with the above notice period.
Termination of the Agreement for any reason whatsoever shall result in the removal, as of the effective date of termination, of all access by the Customer to the Platform’s features.
It is the Client’s responsibility to take all necessary measures to recover its data and Podcasts before deleting its access to the Platform. The Customer acknowledges and accepts that its data will, in any event, be automatically deleted by AUSHA at the end of a period of thirty (30) days from the date of termination of the Contract.
AUSHA is entitled to use subcontractors to carry out its obligations under the Contract.
AUSHA is responsible for the work and services of its subcontractors under the same conditions as for its own work or services.
AUSHA will be authorized to use the Package, the brand, the logo, the name and/or the title of the Podcasts in its commercial documentation and on its website, for the purpose of promoting the Platform and the Company’s services, upon prior validation by the Client.
The computerized registers kept in AUSHA’s computer systems under reasonable security conditions will be considered as proof of the communications, orders and payments made between the Parties.
It is formally agreed between the Parties that any tolerance or waiver by one of the Parties in the application of all or part of the undertakings provided for in this agreement, regardless of the frequency and duration thereof, shall not constitute a modification of this agreement, nor shall it generate any right whatsoever.
If any of the provisions of the Agreement are found to be invalid under any applicable law or statute, they shall be deemed unwritten and shall not invalidate the Agreement.
In case of difficulty of interpretation between any of the headings in the clauses and any of the clauses, the headings will be declared non-existent.
The Contract expresses the entirety of the obligations of the Parties.
No indication or document may create obligations under the Contract unless it is the subject of an amendment signed by both Parties.
No correspondence prior to the conclusion of the Contract shall create any obligations under the Contract.
The Contract is subject to French law.
In addition, the language of the Contract is French. Thus, in the event that it is translated into other languages, only the French version shall be deemed authentic.
In the event that a dispute arises between the parties as a result of the performance or interpretation of the Contract, the Parties agree, prior to any legal action, that any claim shall be subject to prior formal notice by registered mail with acknowledgement of receipt, accompanied by any supporting documents.
If at the end of a period of thirty (30) days as from the sending of this letter, the Parties do not manage to agree on a compromise or a solution, the dispute will then be submitted to the exclusive competence of the courts of Lille.