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© FULLWHERE 2024
D.H. COMPANY is a simplified joint stock company, whose head office is located at 111 Boulevard de la Millière 13011 Marseille, registered in the Marseille Trade and Companies Register under number 889.362.398 (hereinafter referred to as the “” Society ”).
These General Terms and Conditions of Sale (hereinafter referred to as the” CGV ”) define the legal framework for the use of the “Fullwhere” software solution designed, developed and operated by the Company (hereinafter referred to as the” Solution ”) by its customers (hereinafter referred to as the” Customers ”). This solution is available in SaaS mode. “Software as a Service” is available online at https://app.fullwhere.com.
These Terms and Conditions also define the legal framework for the relationships established between the Company on the one hand and any Customer on the other hand. They are supplemented by the Special Conditions defining the specific terms of subscription for the Customer. The Company and the Customers are also hereinafter also referred to jointly as “Parties” and individually a “Party”.
It is possible to contact the Company at the address indicated at the top of this document, via the contact form available on the Company's website at https://www.fullwhere.com/ (hereinafter referred to as the” Platform ”).
As part of its duty to provide information and advice, the Company has made available to the Customer documentation presenting the Solution as well as these Terms and Conditions of which the Customer acknowledges having read. It is the Customer's responsibility, in particular on the basis of this information, to ensure the adequacy of the Solution to its own needs.
Each Customer declares and acknowledges, therefore, that they have read and understood the provisions of these Terms and Conditions, which are available at any time on the Platform, in a tab dedicated to this purpose or at the Customer's request to the Company. By using the Solution, Customers declare that they unreservedly accept these Terms and Conditions. At any time, if a Customer disagrees with one of the clauses of the T&Cs, he must immediately end the use of the Solution.
ARTICLE 1: DEFINITIONS
▪ Subscription: refers to the subscription offered by the Company and taken out by the Customer, and whose specific terms and conditions are defined in the Special Conditions signed by the Customer. The Subscription varies according to the metrics specific to the Services.
▪ Database: refers to all Data, generated by the Solution and made available to the Customer as part of the use of the Solution.
▪ Customer: refers to any customer of the Company who has taken out a Subscription in order to benefit from access to the Solution and the use of the Services.
▪ Account: refers to the personalized space accessible on the Solution, allowing Customers to access all the functionalities offered by the Company.
▪ Contents: refers to any text, graphic, image, music, video or other element that may be communicated to the Company or put online via the Solution by a Customer.
▪ Quotation: refers to the mission proposal provided by the Company to the Customer summarizing the Services as well as their cost. The Quotation is valid for one (1) month.
▪ Documentation : refers to the information provided by the Company in the form of user documentation accompanying the Solution and including all the functions and specificities of this Solution.
▪ Data : refers to the data, files and information, passing through the Solution, both the data transmitted by the Customer as part of the use of the Solution and those generated by the Solution as part of the Services.
▪ Personal data: refers to personal data within the meaning of regulation no. 2016/679, known as the general data protection regulation (“RGPD”) that the Customer collects, enters, provides, transmits or processes in the context of the use of the Solution and/or the Platform;
▪ Intellectual Property Law: refers to all literary and artistic property rights (copyright and related rights), industrial property rights (trademark, design and patent) provided for in the Intellectual Property Code and International Treaties;
▪ Identifiers: refers to the login ID and password specific to the Customer or to any user.
▪ User license : refers to the right of access and use by a User of the Solution, in accordance with the Subscription taken out by the Customer;
▪ Update : refers to the improvements made to the Solution, decided unilaterally by the Company, in view of functional changes and provided that such adaptations or evolutions do not make it necessary to rewrite a substantial part of the Solution. The Updates also include the correction of any anomalies in the Solution with respect to the Documentation.
▪ Platform : refers to the “Fullwhere” platform accessible online at https://www.fullwhere.com/ or any other domain name that will be transmitted by the Company.
▪ Prerequisites technics : refers to the minimum configurations required to allow optimal use of the Solution by the Customer. The Technical Prerequisites appear in Appendix 1 of the Terms and Conditions.
▪ Solution : refers to the “Fullwhere” software available in SaaS mode at https://app.fullwhere.com, granted in exchange for a Subscription.
▪ Services : refer to the various functionalities accessible when using the Solution, which the Customer can benefit from as part of their Subscription, defined below.
▪ Related Services : refers to all the services that the Customer benefits from, associated with the subscription to the Services as part of a Subscription.
▪ Support : refers to assistance in using the Solution. Support can only be provided by the Company to the extent that the Customer has the technical devices allowing Support.
▪ User : refers to a natural person who is part of the Customer's staff and authorized by the latter, or a logical or physical system, who can have access to the Solution for professional use.
ARTICLE 2: OBJECT
The purpose of these Terms and Conditions is to define the conditions under which the Company grants the Customer a right to use the Solution in SaaS mode and provides the Customer with the Services and Services Associated with this Solution.
These Terms and Conditions are concluded between the Parties throughout the duration of the provision of the Subscription taken out by the Customer and defined in the Quotation and in the related Special Conditions.
The Company reserves the right to modify these Terms and Conditions at any time. Any changes will take effect as of their publication. Customers agree to be notified of the updated T&Cs, which will prevail over all others, by email or by publishing them on the Platform. In the event that the Customer does not accept these modifications, he will be free to stop using the Solution and, if necessary, to terminate the Services. In the absence of cancellation, the new GTC will therefore be applicable from the next use or expiry of the Subscription following the entry into force of the new GCS.
By any use of the Solution as well as the Services, the Customer unreservedly accepts these Terms and Conditions. He declares and acknowledges, therefore, that he has read and accepted these Terms and Conditions.
ARTICLE 3: QUOTATION
When contacting the Company, the Customer communicates to the Company its needs relating to its activities in order to request to see a Quotation.
The Company will study the Customer's project and send him a Quote drawn up on the basis of the information he provided.
The Quotation is sent to the Customer free of charge by email to the address provided when the contact was made. It specifies the characteristics of the Subscription and the Services provided, the amount and duration of the Subscription.
If the Customer accepts the Quotation, he must inform the Company, which will send him an order form in the form of Special Conditions relating to this Quote.
To confirm his subscription to the Subscription in a firm and definitive manner, the Customer must return to the Company the signed Quotation and Special Conditions, using the electronic signature procedure sent by the Company, which shows his agreement of will and his acceptance of these terms and conditions.
Once the Quotation is returned by the Customer, an email acknowledging receipt of the order is sent to the Customer by the Company. The contract will be validly concluded between the Company and the Customer after signing the Quotation and the Special Conditions will bind them irrevocably. The Customer will therefore not be able to cancel his order, unless expressly agreed by the Company, except under the conditions set out in article 9 hereof.
In the absence of receipt of the Quotation and the Special Conditions signed within a period of one (1) month from the date of its sending, the proposal is deemed to have lapsed.
The Customer may inform the Company at any time that it wishes to entrust it with the execution of one or more specific additional services not included in the Subscription.
The Company must inform the Customer as soon as possible (and no later than ten (10) days after the request) the Customer whether or not it accepts the service (s) that the Customer wishes to entrust to it. If necessary, the Company will send the Customer, within ten (10) calendar days from the transmission of the expression of need, an additional estimate.
Each service newly entrusted to the Company will be the subject of the signature of this additional quotation, expressly detailing all the execution methods as well as the Company's pricing conditions.
ARTICLE 4: SUPPLY OF THE SOLUTION
4.1 In return for the payment of the Subscription, the Company grants the Customer a non-exclusive right to access and use the Solution. This right of access and use is granted for the sole needs of the Customer's internal functioning within the limit of the acquired rights defined when the Subscription was taken out.
The Customer may not transfer all or part of the rights and obligations resulting from these Terms and Conditions without the prior written consent of the Company.
4.2 The right of use granted is limited to the number of named Users, according to the terms and conditions defined in the Subscription. By Named User, we mean:
▪ or Users, natural persons, designated by the Customer who have a personal username and password and who can access the Solution;
▪ and/or the logical or physical systems accessing and operating treatments with the Solution (workstations, mobile, etc.). This right of access to the Solution is granted exclusively for the professional needs of the Customer. Each access to a named User constitutes a User License. The number of User Licenses subscribed by the Customer is defined by the Special Conditions signed by the Customer. The Customer undertakes to keep the list of its named Users up to date and to make available the list of its named Users.
4.3 The Company undertakes to provide the Solution in accordance with the Subscription purchased and the Special Conditions, which specify in particular the content, the limitations, the duration if it is extended, and the associated procedures, the methods of implementing Updates and Support.
ARTICLE 5: ACCESS TO THE SOLUTION
5.1 Access by the Customer to the Solution is carried out from any computer equipped with an operating system and Internet browsers compatible with the Solution. All costs related to accessing the Solution, whether hardware, software or Internet access costs, are exclusively the responsibility of the Customer. The Technical Prerequisites are listed in Appendix 1 of the present.
5.2 The Customer accesses the Solution by creating an Account, giving him access to a client area. The Company provides the Customer with a number of Identifiers allowing access to Users. The Identifiers provided are strictly personal and confidential.
The Customer is informed that the Company has technical systems to control the shared use of Identifiers (in particular via IP addresses).
The Customer is fully responsible for its use of Identifiers as well as that by Users. He undertakes to make every effort to keep the Identifiers secret and will ensure that no other person not authorized by the Company has access to the Solution. In general, the Customer assumes the security of the systems for accessing the Solution.
In the event of loss, theft or accidental disclosure of an Identifier, the Customer will inform the Company which will send new Identifiers. All possible costs relating to the procedure for retrieving Identifiers are borne by the Customer.
In the event of fraudulent use of the Customer's identifiers due to a fault or negligence attributable to the latter, the Customer will be liable to the Company for any loss or deterioration of Data whatsoever, and more generally for any damage suffered as a result of an unauthorized use of the Solution, including an unauthorized reuse of the Data.
ARTICLE 6: DESCRIPTION OF SERVICES
The Company offers performance management services. marketing, the monitoring and improvement of customer satisfaction as well as in the e-reputation.
The Subscription to the Solution gives the Customer access in particular to the following Services:
▪ Centralization of customer feedback;
▪ Tools for communicating with end customers and responding to customer feedback;
▪ Implementation of satisfaction surveys;
▪ Collaboration and support of the Customer's internal teams in the context of customer feedback management.
The Services offered by the Company are subject to change.
The Company reserves the right to offer any Services it deems useful, in a form and according to the functionalities and technical means that it considers most appropriate to provide these Services. In particular, the Company may offer other functionalities specific to the Customer, as part of its Subscription, in the manner provided for in the Special Conditions.
The Customer acknowledges and accepts that the Company does not guarantee any exclusivity for the provision of the Services and that therefore, the Company reserves the right to offer its Service offers to any third party including those exercising an activity competing with that of the Customer. The Customer acknowledges having accepted this absence of exclusivity without reservation and renounces in advance any liability action against the Company in this respect.
ARTICLE 7: UPDATE - MAINTENANCE
7.1 The Customer is informed that legislative and regulatory changes may, at any time, make the Solution unsuitable.
The Company, as part of the Support, will update the standard Solution so that the Solution meets the new legal and regulatory provisions, provided that such adaptations or developments do not make it necessary to rewrite a substantial part of the Solution.
The Customer is also informed that the evolution of technologies and the demand of its customers may lead the Company to carry out Updates, which may lead to an evolution of the Technical Requirements, for which the Company cannot be held responsible.
Prior to the Update, the Customer will be sent a notification of the deployment of the Update before its implementation.
The Update will be carried out in the following manner:
▪ online when the Update is intended to correct any anomalies;
▪ every semester when the purpose of the Update is to make improvements in light of functional changes;
▪ at intervals of one week when the Update concerns the security system.
7.2 In order to ensure optimal use of the Solution, the Company will regularly check the proper functioning of the Solution in order to detect the risks of operating anomalies and to remedy them in advance.
The Company undertakes to ensure corrective maintenance operations for the Solution in such a way as not to prevent access to the Solution by the Customer.
The Company is also committed to continuously improving existing functionalities and correcting operational anomalies in the Solution.
For the purposes of maintaining the Solution, the use of the Solution may be interrupted, in general during non-working hours and non-working days. The Customer will be notified of maintenance operations in advance by email and through an information window when accessing the Solution.
ARTICLE 8: ASSOCIATED SERVICES
8.1 Data Storage and Security Measures
All Customer Data is stored in a database, on one or more servers located on a dedicated and secure site.
The Company is committed to implementing technical means in accordance with the state of the art to ensure the physical and logical security of the servers and networks under its responsibility and control. As soon as it is aware of it, each of the Parties will report, as soon as possible, to the other Party any fact that may constitute an attack on the physical or logical security of the environment of the other Party (attempted intrusion for example).
The Company undertakes to take all useful precautions in accordance with the state of the art to preserve the security of the Data so that they are not, as a result, deformed, damaged or communicated to unauthorized third parties. Consequently, the Company undertakes to respect and to ensure that its staff comply with the following obligations:
▪ not to make copies of the documents and Data carriers entrusted to it, except those strictly necessary for the execution of the Solution;
▪ not to use the Data for purposes other than those of these Terms and Conditions;
▪ not to disclose the Data to other persons, whether private or public, natural or legal persons, unless such disclosure is required by law or a competent judicial or administrative authority or is necessary in the context of legal action.
8.2 Monitoring system
The Company uses all the necessary means to ensure the traceability of users by IP, in order to ensure the secure operation of the Solution.
The Company will set up access control to the premises in which the services relating to the Solution are performed, in order to authorize access only to persons authorized by the Company or accompanied by authorized personnel. The Company will take all measures to avoid intrusions.
The Company will implement the necessary measures to allow access to the Solution only to persons authorized by the Customer.
In order to guarantee the confidentiality of data in transit between the Customer and the access point to the Solution, all connections are secure. Data flows, which use insecure telecommunications networks, use recognized security protocols such as HTTPS (based on SSL/TLS Secure Socket Layer/Transport Layer Security) or SFTP (based on Secure Shell - SSH).
8.3 Assistance and Support
Throughout the period of provision of the Solution, the Company provides Customers or Users designated by the Customer with assistance via an online support platform accessible at https://intercom.help/fullwhere/en/ and providing Customers with useful information relating to the use of the Solution as well as a discussion channel (chat). The use of this assistance platform is subject to these Terms and Conditions.
The purpose of this Associated Service is to bring to the attention of the Company any malfunctions of the Solution, which are not attributable to misuse or non-compliant use or to a modification of access by the Customer.
In the event of malfunctions of the Solution found, the Customer must indicate to the Company the conditions for the occurrence of the malfunctions as observed by the Users as well as the level of severity of the malfunctions.
The Company undertakes to analyze the malfunctions observed and brought to its attention by the Customer within forty-eight (48) hours and to provide a response within a maximum of seven (7) working days. Once the malfunctions have been corrected, the Customer will receive a notification informing him of the correction of the malfunctions observed.
In the event that the malfunctions cannot be corrected immediately, the Company will put in place a workaround solution in order to ensure the continuity of the operation of the Solution.
Any fees and costs relating to the correction of malfunctions that would be due directly or indirectly to a foreign cause and in particular to an error of use by the Customer and/or any third party, will be the sole responsibility of the Customer. The Company cannot mitigate the consequences of maneuvers or uses prohibited by these Terms and Conditions, nor those resulting from a modification of the hardware environment or the software environment of which the Company has not been notified and to which it has not given its approval, without this list being exhaustive.
8.4 Exclusions
The Company may provide additional services (advice, support, support, configuration, training, interoperability) other than those exclusively provided by the Solution or included in the Associated Services.
Any additional service to be performed by the Company must be the subject of an estimate and a written and express acceptance by the Customer. It will be invoiced separately from the payment of the Subscription price.
ARTICLE 9: FINANCIAL CONDITIONS
9.1 Price and payment
The prices fixed on the Quotation when subscribing to the Services are in euros excluding taxes. The financial conditions as well as the details of the prices are mentioned on the Quotation and in the Special Conditions.
Access to the Solution by the Customer and its use by the Users are subject to the payment by the Customer of the Subscription price, as defined and in accordance with the terms and conditions determined in the Quotation and in the Special Conditions.
Any change in the scope of the Services initially determined will be subject to additional billing.
Any decision to discount, reduce or apply degressive rates, based on a percentage or a fixed price, remains at the sole discretion of the Company. Any discounts or rebates granted to the Customer may in no way give rise to a right acquired for subsequent orders.
Under no circumstances may payments be suspended or subject to any compensation without prior written agreement between the Company and the Customer. Any suspension, deduction or compensation made unilaterally by the Customer will be treated as a default in payment and will result in all the consequences of late payment.
9.2 Price review
The price list may be updated every year and can be updated by the Company at any time by respecting at least a notice of 3 months.
9.3 Billing procedures
Unless otherwise and specifically agreed between the Parties, Payment for the Subscription to the Solution is made monthly on the 1st of the month, by bank debit.
The payment of any invoice relating to an additional service must be made by the Customer, by bank transfer or direct debit, within a maximum period of thirty (30) days from the date of receipt of the invoice, unless otherwise stipulated in the Special Conditions.
The Company is in no way a banking institution and all intermediary payment services are provided by a payment provider, approved and specialized in these services. Bank information is transmitted exclusively to this payment provider in a secure manner.
9.3 Late payment
In the absence of payment by the due date, a penalty for late payment calculated on the basis of an interest rate fixed at three (3) times the legal interest rate as well as a fixed compensation for recovery costs of forty euros excluding taxes (40€ excluding tax) will be payable by the Company without prior notice of default, without prejudice to any recourse and any procedure that the Company may take against the Customer. Where applicable, when these costs exceed the amount of this compensation, the Company may claim additional compensation from the Customer, upon presentation of supporting documents specifying the steps taken.
Any complaint relating to an invoice must be sent in writing to the Company's head office eight (8) days after receipt.
The Company reserves the right, ten (10) days after the sending of the formal notice to pay, in the recommended form, which has remained partially or completely without effect, to suspend the Solution and any service in progress until full payment of the amounts due. This suspension cannot be considered as a cancellation of the Subscription.
In the same way, the Company reserves the right to refuse any order from a Customer with whom there is a dispute relating to the payment of a previous Order.
All unpaid fees, following a bank rejection of a payment by the Customer, will remain the financial responsibility of the latter.
ARTICLE 10: INTELLECTUAL PROPERTY
10.1 Each Party is and remains the owner of its distinctive signs, namely registered trademarks, corporate names, trade names, trade names, signs, domain names and more generally the identification signs of persons, products and/or services even if they do not benefit from specific legal protection, prior to and/or external to the contract concluded between the Parties.
10.2 The general structure of the Solution, and all the elements composing them (such as in particular logos, domain names, phonographic or video recordings and their associated elements, including photographs, images, texts and biographies of the authors, performers and/or any other entitled to the phonographic or video recordings as well as the visuals of the packaging of these recordings) are the exclusive property of the Company and/or its licensors.
The Company owns all applicable intellectual property rights relating to the Solution or declares, when a third party owns the intellectual property, to have obtained from this third party the right to market or distribute the Solution. The Company grants the Customer a personal, non-exclusive, non-transferable and non-transferable right to use the Services for the duration of the Subscription.
The provision of the Solution to the Customer does not confer any title or intellectual property rights in the Solution or the Services. The temporary provision of the Solution and the provision of the Services cannot be interpreted as the transfer of any intellectual property right transferred to the Customer.
As such, the Customer may not harm the Solution in any way whatsoever and in particular use the Solution in a manner that is not in accordance with its destination and with the conditions set out in the GCS.
Consequently, the Customer is prohibited in particular, and without this list being exhaustive, from:
▪ reverse engineer the Solution in order to develop a competing product or service and/or to copy, reproduce any functionalities, functions or graphic attributes of the Solution;
▪ use the Solution other than in accordance with its professional destination, i.e. in accordance with their Documentation and for the sole professional needs of its activity;
▪ distribute the Solution, exploit it for commercial purposes, make it available to third parties or rent it unless otherwise provided in the corresponding Order Form or in the Special Conditions;
▪ alter or disrupt the integrity or execution of the Solution or the data contained therein;
▪ obtain or attempt to obtain unauthorized access to the Solution or to the systems or networks associated with it;
▪ download or reproduce the Solution code or translate the form of this code in order to obtain the information necessary for the interoperability of the Solution with other Software created independently;
▪ carry out any decompilation of the Solution outside of the cases provided for by law.
The name, logos, designs, models, stylized letters, figurative marks, and all signs represented on the Platform are and will remain the exclusive property of the Company. No title or right to any element or software will be obtained by downloading or copying elements from the Platform. It is strictly forbidden to reproduce (except for personal and non-commercial use), publish, edit, non-commercial use), publish, edit, transmit, distribute, show, remove, delete, add to this Platform, and to the elements and software they contain, nor to modify them or to perform any work using them as a basis, nor to sell or participate in any sale in connection with this Platform, the elements of the Platform or any related software. The Content available as part of the Services are digital files protected by national and international copyright and related copyright provisions. As such and in accordance with the provisions of the Intellectual Property Code, only their use in an exclusively private setting is authorized. Any use for purposes other than private exposes the Customer or the User to civil and/or criminal legal proceedings.
10.3 Any knowledge, method or technique, know-how or invention, software, software, software, software, software, software, databases or other computer developments, regardless of their nature or medium, whether or not they are covered by intellectual property rights, including industrial property rights, that the Company owned in its own right prior to the date of entry into force of the contract between the Parties (hereinafter the” Own knowledge ”) remain the property of the Company which owns them.
Their use by the Customer is limited to the framework of the Contract. Their use under the Contract will not grant the other Party the right to use them for other projects, products or applications without the prior written consent of the Party with its Own Knowledge.
10.4 For Services consisting and/or resulting in the creation of creations, works, methods, techniques and know-how, analyses, developments, notes, videos, recordings, reports, reports, specifications (collectively referred to as “” The Results ”), regardless of the nature or form, created, developed, produced or provided by the Company, alone or with the Customer and/or third parties, on behalf of the Customer, it is agreed that the Company transfers to the Customer exclusively and definitively, as and when they are realized, all intellectual property rights of an asset nature relating to the Results.
As part of this transfer, the Company transfers to the Customer in particular:
▪ the rights of use and commercial exploitation, in any form, even if not provided for or not foreseeable at the date of signature of the contract between the Parties,
▪ reproduction rights, by any means and on any medium, known and unknown at the date of signature hereof,
▪ representation rights by any process, known and unknown on the day of signature,
▪ the rights of modification, adaptation, translation, translation, evolution, evolution, addition, deletion..., of all or part of the creations that are the objects of the Services,
▪ the rights to incorporate, in whole or in part, into any pre-existing or to be created work,
▪ the rights to rewrite in another computer language,
▪ the rights to port, to other hardware or to adapt to operating systems other than those used or known at the time of signature hereof,
▪ the rights to transfer the benefits of this transfer to any third party of their choice,
▪ source codes, object codes, and associated documentation;
▪ all technical and/or methodological know-how;
▪ functionalities in that they, when expressed, would allow the writing of a computer program that is technically different but imitates the methodology used;
▪ interface elements, including screens, editions, or menus;
▪ the description, titles and structure of the data, regardless of the tool in which these elements are stored/used, in particular all the elements stored in the database;
▪ the settings, whether in the form of database tables, files with binary structure or text files,
▪ and in general, all the author's financial prerogatives over his creation.
This transfer is effective both for France and abroad and for the entire period of legal protection recognized in the Results.
The Company undertakes to provide the Customer with all the elements useful for the exploitation of the Results.
The Company guarantees the Customer that he owns all the intellectual property rights and all the authorizations required to perform the Services and the peaceful exercise of rights, as set out in this article. It guarantees that the use by the Customer of the Results does not in any way infringe the rights of third parties. The Company has made all the necessary commitments to its staff to carry out this transfer and guarantees the Customer against any recourse as a result.
ARTICLE 11: OBLIGATIONS
11.1 Customer Obligations
In order to allow the Company to be able to deliver services in accordance with its expectations in terms of nature and quality, the Customer undertakes to collaborate with the Company actively and to transmit to it all essential information that would not have been transmitted during the contact and the Customer's request for a Quote. In particular, it is up to it to precisely describe its needs and ensure transparency on its activities, its positioning and the targeted prospects as well as the various networking platforms used with its end customers.
More generally, the Customer undertakes to make available to the Company all the information that may enable the Company to provide its Services.
For this purpose, the Customer designates a privileged interlocutor to ensure the follow-up in the various stages of the Services provided by the Company. It will be designated by the Customer on the validated Quotation or by any means following this acceptance.
The Customer undertakes to comply with the terms of these Terms and Conditions and to use the Solution in accordance with the laws and regulations in force.
The Customer undertakes to respect the laws and regulations in force and not to infringe the rights of third parties or public order.
The Customer agrees to refrain from:
▪ To use the Solution in any illegal manner, for any illegal purpose or in any way that is incompatible with these Terms and Conditions;
▪ To sell, copy, reproduce, rent, rent, lend, lend, distribute, distribute, distribute, distribute, transfer or sublicense all or part of the Content appearing on the Solution and/or the Platform or to decompile, reverse engineer, disassemble, modify, modify, display in a form readable by the Customer, display in a form readable by the Customer, attempt to discover any source code or use any software that activates or includes all or part of the Solution;
▪ To attempt to gain unauthorized access to the Solution's computer system, or to engage in any activity that is disruptive, decreases the quality or interferes with the performance or deteriorates the functionalities of the Solution;
▪ To use the Solution for abusive purposes by deliberately introducing viruses or any other malicious program into it and to attempt to access the Solution in an unauthorized manner;
▪ To infringe the Company's Intellectual Property Rights and/or to resell or attempt to resell the Content to third parties;
▪ To denigrate the Solution, the Contents and the Company on social networks and any other means of communication.
The Solution is used by the Customer under his control, his direction and under his sole responsibility. The Customer guarantees that Users comply with these Terms and Conditions and is solely responsible for the content distributed and/or downloaded via the Solution and assumes full responsibility for the accuracy, integrity and legality, reliability and timeliness of the information transmitted to the Company under these Terms and Conditions. Therefore, the Customer is responsible for:
▪ the implementation of all useful processes and measures intended to protect its User workstations, hardware, software, passwords, in particular against any viruses and intrusions;
▪ the establishment of the necessary backup means, external to the Associated Services provided by the Company.
▪ compliance with the latest updated version of the Technical Prerequisites in order to avoid harmful consequences such as slowdowns, blockages, data alterations;
▪ the choice of the access provider or the telecommunications medium, the Customer having to take care of administrative requests and contract the necessary subscriptions for which he will bear the cost;
▪ the appointment, among its staff, of a privileged contact of the Company acting as an administrator, for the Customer, of the Solution and in particular with regard to security aspects;
▪ the use of Identifiers and access codes that are chosen by the Customer when executing the Solution. He will ensure that no person not authorized by him has access to the Solution. In the event of unauthorized access, the Customer will inform the Company without delay;
▪ the errors committed by its staff in the use of the Solution and the procedures that allow them to connect to the Solution, in particular concerning the means of accessing and browsing the Internet. The Company will be released from any responsibility concerning the nature and content of the Customer's information or Data and the resulting exploitation.
If, for any reason, the Company considers that the Customer is not complying with these Terms and Conditions, the Company may at any time, and at its sole discretion, limit or suspend its Subscription temporarily or permanently, delete its access to the Solution and take any measures including any civil and criminal judicial action against it.
Consequently, the User assumes full responsibility for the accuracy, integrity and legality, reliability and timeliness of the information transmitted to the Company under these Terms and Conditions.
The User acknowledges that the responsibility of the Company can under no circumstances be sought in the event that the information transmitted is not free of rights or is contrary to the rights of a third party.
11.2 Obligations of the Company
The Company undertakes to inform the Customer of any event that would be likely to compromise the provision of the Solution, including if this event is attributable to a third party.
The Company undertakes to implement all the means necessary for the execution of the Solution under the conditions provided for in the offer subscribed by the Customer.
The Company is committed to providing all the care and diligence necessary to provide a quality service in accordance with the practices of the profession and the rules of the art. The Company is committed to:
▪ intervene quickly in the event of an incident. In the event of a serious incident affecting the proper functioning of the entire Solution, the Company will endeavor to take any measures necessary for the continuity of the Solution. During this period, the Customer accepts that, as a result of this incident, the performance of the Solution may be partially degraded.
▪ ensure that the quality of its tools is maintained at the best level;
▪ allow the Customer to hide their Personal Data;
▪ protect, as far as possible, its hosting platform.
It is agreed between the Parties that the Company will remain, in all circumstances, free to determine its industrialization policy.
Therefore, the Company may without constraint design, organize and size the Solution, modify it and develop it, as needed, with the partners and suppliers of its choice without the Customer's prior written agreement, as long as this does not reduce the Company's commitments.
ARTICLE 12: DATA
12.1 Ownership of the Data generated by the Solution
All Data generated as part of the use of the Solution remains the sole property of the Company. The architecture of the Databases, its presentation and its layout (without this list being exhaustive), are the property of the Company and are protected by copyright.
As part of the Subscription and Services, the Customer has a simple, non-exclusive right to use the Solution and the Database for its internal needs.
The reproduction, reuse, adaptation, exploitation of the Database or its content by the Customer outside the framework of the use of the Services is prohibited.
As such, the Customer is not authorized to:
▪ Use the Solution and its Database in order to create a new database that is not directly related to its own internal purposes;
▪ Manipulate or use the Solution and its Database in a way that could directly or indirectly compete with the Company;
▪ Transfer the data contained in the Database to or on one or more other platforms, applications or databases of a third party,
▪ Reuse the data contained in the Database for use other than strictly necessary for its internal needs, in particular any resale, distribution or provision of the data to third parties, including in a free, exceptional and fragmented manner.
The Company reserves the right to verify by any means that the Solution and its Database are used under the conditions of these Terms and Conditions and are not reproduced without its authorization.
12.2 Ownership of the Content distributed by the Customer
The Content delivered by the Customer and/or Users to the Company and stored as part of the use of the Solution remain the exclusive property of the Customer.
The reproduction or use by the Company of Customer Content, outside of the framework of the provision of the Services, is prohibited.
However, the Customer expressly authorizes the Company to host its Contents on the server and to use them, in particular for the purposes of operating the Solution and providing the Services, but also to exploit them for statistical, learning and improvement purposes.
Therefore, the Customer declares:
▪ be the holder of the moral and economic rights relating to the Content that he communicates to the Company via the Solution or in the context of the provision of the Services, or hold the necessary authorizations for the publication of this Content and for its exploitation by the Company;
▪ that the publication and use of Content on or through the Solution does not infringe, misappropriate, or violate the rights of third parties, including, but not limited to, privacy rights, advertising rights, advertising rights, copyright, trademark, and other Intellectual Property Rights.
12.3 Personal data
It is recalled that the Company acts as a subcontractor, on instructions from the Customer, who is qualified as the person responsible for the processing of Personal Data. The Customer is informed that it is up to him to comply, under his sole responsibility, with the obligations incumbent on him under the applicable regulations on the protection of Personal Data, and in particular (i) the General Data Protection Regulation (EU) no. 2016/679 (” RGPD ”), as well as (ii) any applicable local regulations of an EU Member State relating to the processing of Personal Data.
As soon as Personal Data is collected by the Customer or transferred by the Customer, or by the Company at the instruction of the Customer, it is the Customer's responsibility to ensure that the collection, processing and/or transfer of Personal Data is authorized.
As a subcontractor of Personal Data, the Company undertakes to process the Customer's Personal Data only according to the Customer's documented instructions or as part of what is necessary for the provision of the Services, and to make copies of documents containing the Customer's personal data only for the provision of the Services or to fulfill a legal obligation.
However, the Company may use the Data for personal purposes as a joint data controller, including for commercial or statistical purposes and/or for the purposes of analysis, research and study, the Customer's Personal Data or the data resulting from the processing of said Customer Personal Data, including when such processing results in the anonymization of said data.
The Company also undertakes to keep the Customer's Personal Data only for the period necessary for the provision of the Services, unless there is a legal obligation to keep the Customer's Personal Data.
The Company undertakes to transmit, to the Customer as soon as possible, all information allowing the Customer to respond to any request made by a person concerned concerning his Personal Data processed by the Company on behalf of the Customer.
The Company implements technical and organizational security measures in order to guarantee the confidentiality, integrity, availability and traceability of Personal Data.
The Company undertakes to make Personal Data accessible only by personnel and contractors of the Company duly authorized and authorized for this purpose. It ensures that security incidents and data breaches are detected, resolved and reported. In this context, the Company recognizes that the Customer is solely entitled to determine: (i) whether or not the Data Breach should be notified to the persons concerned, to the competent authorities or to any other person under applicable regulations; and (ii) the content of said notification. The Company will take appropriate measures to (i) remedy the security incident, (ii) limit its effects, and (iii) make any appropriate changes to prevent the security incident from happening again. The Company must cooperate and provide the Customer with the necessary assistance with respect to any complaint made by a person concerned or any investigation or request emanating from a supervisory authority under the applicable regulations.
The Company must keep a record of the processing activities carried out on behalf of the Customer, including those entrusted to its own Personal Data subcontractors.
Unless expressly agreed otherwise, the Company undertakes to favor the processing of Customer Personal Data in the European Economic Area (“EEA”). In the event of a transfer outside the EEA, the Company undertakes to inform the Customer and to take the necessary measures and guarantees to ensure that the transfer complies with applicable regulations. The Company also guarantees that its subsequent subcontractors are bound by similar obligations with regard to the transfer of personal data to third countries.
The Company undertakes, at the request of the Customer, and in all cases following the termination or expiration of these terms and conditions, to return to the Customer the Customer's Personal Data in a legible and interoperable format and to destroy any copies of the Customer's Personal Data that it may have in its possession, except for the period when their archiving or storage is required by law or regulations in force.
ARTICLE 13: LIMITATION OF LIABILITY
The Customer acknowledges having been informed that the Company is subject to an obligation of means for the execution of the obligations imposed on it under these GCS.
In any event, the Customer remains responsible for its computer equipment as well as those used in connection with the Company. At no time does the Company guarantee the reliability or functioning of the Internet networks and telecommunications means used.
The Company cannot be responsible for the quality, availability and reliability of telecommunications networks, regardless of their nature, in the event of data transport or Internet access, even when the supplier is recommended by the Company.
The Company can also not be held responsible by the Customer for periods of interruptions related to update and maintenance operations.
The Company cannot be held responsible for any prejudice or damage arising directly or indirectly from the Customer's misuse of the Solution or Services.
Under no circumstances can the Company be held responsible, both with respect to the Customer and to third parties, for indirect damages. In particular, indirect damage is: loss of profit, increase in general expenses, loss of profit or customers, any operating loss, loss of profit or financial loss resulting from the impossibility of using the Solution.
In any event and regardless of the basis of liability of the Company, damages and any compensation due to the Customer may not exceed the amounts paid by the Customer as part of the operation of the Solution for the year in which the damage giving rise to compensation occurred.
The Customer undertakes to limit the extent of its damage in the event of a breach by the other Party. Only unavoidable harm will be compensated.
ARTICLE 14: TERMINATION
14.1 Termination for failure by a Party to meet its obligations
In the event of non-compliance by one or other of the Parties with the obligations referred to in these Terms and Conditions, the Subscription may be resolved at the option of the injured party.
It is expressly understood that this resolution for failure by a Party to comply with its obligations will take place automatically fifteen (15) days after the sending of a formal notice to comply, which has remained, in whole or in part, without effect. The formal notice may be notified by registered letter with a request for acknowledgement of receipt or any extrajudicial act. This formal notice must mention the intention to apply this clause.
14.2 Termination due to force majeure
In the event that a case of force majeure as defined in article 18 persists beyond thirty (30) days from its notification by one of the Parties, the Parties may unilaterally terminate the Subscription. The Subscription would then be resolved at the expiration of a period of fifteen (15) days after the sending of a registered letter with acknowledgement of receipt, without this termination giving the right to any Party to any damages. This letter should mention the intention to apply this clause.
ARTICLE 15: CONSEQUENCES OF THE TERMINATION OF THE SUBSCRIPTION
15.1 Retrieval and return of Data by the Customer
At the expiration of the Subscription or in the event of cancellation, access to the Solution is closed on the last day of the Subscription at midnight or the day the Subscription is cancelled.
The Customer must therefore have, before this deadline, recovered the Data accessible through the functionalities of the Solution or have requested the Company to return a copy of the last backup of the Data.
The Company undertakes to return all Data belonging to the Customer within thirty (30) days from the date of notification of the cancellation or the end of the Subscription. This return will be carried out in a standard market format chosen by the Company (such as a file in Word format or JavaScript Object Notation) and will be made available to the Customer in the form of a download or if the volume is too large, by sending an external medium and this, as part of a billable service within the limit of the cost of the external support and its secure sending.
From the sixtieth (60th) day from the day on which the Solution expires or when it is terminated, the process of deleting the Data will be initiated in order to make them unusable. This deletion will be carried out on the production data as well as on the saved data and this, according to the retention periods of the backups.
15.2 Compliance with intellectual property rights and confidentiality obligations
At the termination of the Subscription, regardless of the cause, the Customer undertakes not to copy, reproduce for the purpose of their communication to third parties and more generally not to reuse, disclose, distribute in any form whatsoever, translate or adapt the data obtained in the execution of the Services, nor to make any use of them likely to infringe the rights of the Company.
ARTICLE 16: CONFIDENTIALITY
For the purposes of these Terms and Conditions, the terms” Confidential Information (s) ” include any information or documents disclosed by each of the Parties to the other Party, in writing or orally, and including without limitation any written or printed documents, any trade secrets, know-how, information documents and more generally any information issued by a Party to the other Party.
However, the terms” Confidential Information (s) ” do not include information:
(i) who are, or will be at the time when they were revealed, available and known to the public other than as a result of a disclosure made in violation of these provisions;
(ii) that have been or would be communicated to one of the Parties by a third party who is not directly or indirectly linked to the other Party or one of its representatives;
(iii) that have been developed by one of the Parties based on information other than Confidential Information; or
(iv) disclosed or announced to the public by mutual agreement between the Parties.
Throughout the duration of this Subscription and for a period of eighteen (18) months from the date of expiration or its termination, the Parties undertake not to disclose Confidential Information in any manner whatsoever, including verbally, without the prior written consent of the other Party, without the prior written consent of the other Party, they undertake to:
▪ protect and keep strictly confidential, and treat with the same degree of care and protection that it accords to its own confidential information of the same importance as Confidential Information from the other Party;
▪ disclose internally only to its employees only and exclusively when this is necessary for the proper execution of these terms;
▪ not to copy, reproduce, or duplicate totally or partially when such copies, reproductions or duplications have not been authorized by the other Party and this, in particular, all Confidential Information and its reproductions, transmitted by each of the Parties with respect to the other Party, must be returned to the other Party within 48 hours at its request.
In the event that the legal or regulatory obligations of one of the Parties, in particular following a request from a judicial or administrative authority, or within the framework of regulations applicable to it, require the communication of Confidential Information to a third party or to make public Confidential Information, this Party will be authorized to do so.
The Parties, without prejudice to the provisions of this article, may communicate on the sole existence of their commercial relationships without harming the image of the other in any way, or disclose any Confidential Information. The methods of communication may be specified in the Special Conditions.
ARTICLE 17: AVAILABILITY — LACK OF GUARANTEE
The Customer accesses and benefits from the functionalities of the Solution through access via the Internet. The Customer may access and use the Solution at any time (24/24 hours and 7/7 days), except for periods of interruption related to maintenance operations and subject to periods of unavailability of the Solution.
The use of the Solution and the Services is granted “as is” without warranty of any kind, express or tacit, as to its performance or results. The risks inherent to quality, performance or result rest solely with the Customer.
The Company does not guarantee that the Solution is free of all defects or hazards but undertakes exclusively to remedy, with all reasonable diligence possible, the reproducible malfunctions observed in relation to the Documentation. The Company does not guarantee an error-free, punctual and secure supply of the Solution. The Company is not bound by any obligation to provide personalized assistance, in particular technical assistance.
The Company does not give any guarantee that the Solution and the Services comply with the specific needs or specific activity of a Customer. The Company does not guarantee the ability of the Solution to achieve objectives or results that the Customer would have set for himself and/or to perform particular tasks that would have motivated him in his decision to take out a Subscription.
The Customer acknowledges having been in a position to previously assess the capabilities of the Solution and the Services, in particular concerning technical specificities. The Customer may not require the implementation of new functionalities or developments.
ARTICLE 18: FORCE MAJEURE
Any event outside the control of a Party and against which it could not reasonably protect itself constitutes a case of force majeure and as such suspends the obligations of the parties, for example without this list being exhaustive: a strike or a technical failure (EDF, ERDF, EDF, telecommunications operators, telecommunications operators, Internet access or hosting providers, etc.), a stoppage of energy supply (such as electricity), a network failure (EDF, ERDF, telecommunications operators, Internet access or hosting providers, etc.), a stoppage of energy supply (such as electricity), a network failure (EDF, ERDF, telecommunications operators, Internet access or hosting providers, etc.) of electronic communication on which the Party concerned depends and/or of the networks that would replace it.
The Party invoking the impossibility of performance for a case of force majeure as defined in article 18 hereof, must inform the other Party by any means of the occurrence of the event which places it in the impossibility of performing its obligations as soon as it occurs and at the latest within 48 hours by specifying the nature, the starting point and the estimated duration of the event presenting the characteristics of force majeure.
The Party concerned cannot be held responsible, or considered to have failed to meet its obligations under these GCS, for non-performance related to a case of force majeure as defined by French law and case law, provided that it notifies the other party on the one hand, and that it does its utmost to minimize the damage and fulfill its obligations as quickly as possible after the cessation of the force majeure event, on the other hand.
ARTICLE 19: COMPREHENSIVENESS
The provisions of these Terms and Conditions as well as the Special Conditions express the entire agreement concluded between the Parties. They prevail over any proposal, exchange of letters prior to and after the conclusion of these terms and conditions, as well as any other provision contained in the documents exchanged between the parties and relating to the subject of the GTC, unless an amendment duly signed by the representatives of both Parties.
ARTICLE 20: NO RENUNCIATION
The fact that one of the parties to these GCS did not require the application of any clause, whether permanently or temporarily, can in no way be considered as a waiver of the rights of this party arising from this clause.
ARTICLE 21: NULLITY
If one or more provisions of these GCS are held to be invalid or declared as such in application of a law, a regulation or following a decision that has become final by a competent court, the other provisions of these GCS will remain in full force and scope.
If necessary, the Company undertakes to immediately remove and replace said clause with a legally valid clause.
ARTICLE 22: TITLES
In case of difficulty of interpretation between the title and the chapter of any of the articles and any of the clauses, the titles will be deemed unwritten.
ARTICLE 23: APPLICABLE LAW AND DISPUTE RESOLUTION
These Terms and Conditions are governed and interpreted in accordance with French law, without taking into account the principles of conflicts of laws.
In the event of a dispute that may arise during the interpretation and/or execution of these terms and conditions, the Parties agree to meet in order to find an amicable settlement or to submit this dispute to an alternative dispute resolution method.
Any dispute that could not have been resolved amicably by the Parties with respect to the interpretation, execution and termination of these GTC will be submitted by one or other of the Parties to the jurisdiction of the courts within the jurisdiction of the jurisdiction of the Company's head office.
ARTICLE 24: NOTIFICATION
Any notification or other communication to be made under the terms of the Subscription will be valid as long as it is made in writing and (i) delivered to a person against receipt or (iii) by electronic mail with acknowledgement of receipt or (iii) sent by registered letter with a request for acknowledgement of receipt sent as follows:
(i) To the Company: according to the contact details mentioned at the top of this document;
(ii) To the Customer: according to the contact details mentioned at the top of this document.
Any notice made under this section shall be deemed to have been made to the sender on the day indicated on the signed receipt or on the notice of postal deposit and to the addressee on the day mentioned on the signed receipt or on the notice of first presentation by the postal services.
APPENDIX 1: TECHNICAL REQUIREMENTS
The Customer expressly acknowledges having been informed that in order to make optimal use of the Solution, compliance by the Customer with all the Technical Prerequisites designated below is essential:
▪ A computer, tablet or any other equipment that allows him to access the Internet;
▪ An Internet connection;
▪ A Microsoft t™ Edge web browser, Google Chrome, Google Chrome, Mozilla FireFox, or Apple Safari;
▪ Acceptance of cookies by the web browser
▪ No tool such as “window blocker Pop-ups” activated natively in the web browser or by third-party tools.