General conditions of use, support and maintenance of the software Symalean
PREAMBLE
SYMALEAN's service provider is a publisher of Quality-Safety-Environment-EDM / Human Resources/Equipment resources software and a provider of associated services such as assistance in the use and maintenance of this software. The Client wishes to acquire the licences enabling it to use the Quality-Safety-Environment-EDM and/or Human Resources and/or Equipment resources Software and to use the assistance and maintenance services associated with this Software from a specialized Service Provider. The Client acknowledges having received from the Service Provider all the information necessary to assess the suitability of the Software and the associated support and maintenance services for its needs and to take all the necessary precautions for its use. The rights of use and the support and maintenance services of the SYMALEAN software are governed by the present general conditions. The Customer acknowledges having read the General Conditions before signing the order form. The Service Provider reserves the right to update the General Conditions and undertakes to inform the Customer by any means. Continued use of the Software and/or use of the support and maintenance services after the Service Provider has notified the Customer of any changes to the Terms and Conditions shall be deemed to be acceptance without reservation by the Customer of the new Terms and Conditions so notified. The latest version of the Terms and Conditions can be freely consulted by the Customer at any time on www.symalean.com/CGVLICENCE.
EXHIBIT :
ARTICLE 1. DEFINITIONS
Capitalized terms in the General Conditions, whether used in the singular or plural, have the meanings given below.
A subsidiary is any entity controlled by the client (the term "control" being understood in the sense of Article L.233-3 of the French Commercial Code);
Anomalies mean difficulties in the functioning of the application
- repetitive and reproducible - which can be of three types:
- A locking fault is any malfunction that makes it impossible to use the application;
-Semi-blocking anomaly means any operational anomaly that allows the application to be used for part of its features ;
- A minor anomaly is any minor operational anomaly that allows the full use of the application features, even if it is achieved by a workaround procedure;
The purchase order is the document signed by the customer that describes the software and the number of licenses purchased, as well as the duration and the conditions of renewal and payment of the support and maintenance services (called Maintenance and Help Desk);
Specific development means software created exclusively for the client by the service provider;
Documentation means paper documents or computer files relating to the use of the programme, regardless of their format;
Data means information, publications and, in general, data and information of any kind contained in the client's database;
By identifiers, we mean both the user's own identifier ("login") and the connection password ("password");
Software means the Quality-Safety-Environment-EDM/Human Resources/Equipment resources software in object code form marketed by the Service Provider and its associated Documentation and for which a right of use is granted to the Client hereunder;
Maintenance means all operations aimed at keeping the software in working order and updating it;
User means the person under the responsibility of the Customer (employee, worker, representative, etc.) who has access to the Software on his computer, tablet or smartphone under the user licence contracted by the Customer;
Theadministrator user is the person in charge of managing a computer system, who is responsible for its security, operation, exploitation or evolution.
ARTICLE 2. PURPOSE
The General Conditions define the conditions under which the Customer is authorized to use the Software and the associated support and maintenance services.
ARTICLE 3. CONTRACTUAL DOCUMENTS
The general terms and conditions between the service provider and the client are formed by the following contractual documents, presented in order of decreasing legal value:
- Where applicable, any amendment signed between the parties that modifies one or more contractual documents,
- the content of the general conditions
- the order form
- Documentation
In the event of a contradiction between one or more provisions contained in the above-mentioned documents, the document of higher rank shall prevail. No handwritten entry by the client in the order form or in any other contractual document shall have any value between the parties, unless the service provider accepts this change or entry in writing.
ARTICLE 4. LICENCES
When acquiring licences for electronic document management software for quality, safety and environment, human and equipment resources, the customer shall only benefit from the rights of use granted by the service provider. The use of the programme means its permanent or temporary reproduction to enable it to function in accordance with the provisions of these general terms and conditions and the documentation, insofar as the loading, displaying, execution, transmission or storage of the program requires its reproduction.
The right of use is granted exclusively in the form of encrypted source code for the internal operational needs of the customer and its affiliates, within the limit of the number of licences purchased, as indicated on the order form.
The software must be used in accordance with its exclusive use for any other purpose, namely
- in accordance with the provisions of these terms and conditions and the documentation;
- exclusively for the personal and professional needs of the client and its affiliates;
- within the limit of the number of identifiers (licences) acquired ;
Any use of the Software that does not comply with its intended purpose, as mentioned above, constitutes an infringement of the Software's operating rights and therefore an infringement of copyright in accordance with the provisions of Article L.335-3 of the French Intellectual Property Code. The client acknowledges that the software provided by the service provider is a work of the mind that the client and his staff are required to consider as such and that they are prohibited from doing so:
- any copy or reproduction of all or part of the said Programme or its Documentation by any means and in any form whatsoever, with the exception of the backup copy authorized in accordance with the provisions of the Intellectual Property Code (article L.122-5);
- any translation, adaptation, arrangement or other modification of the Program, with the exception of any specific adjustments and/or additional developments to the Programme that may be made in accordance with the associated Documentation.
- any intervention on the programs that make up the Software, whatever their nature, including for the purpose of correcting errors that may affect this Software, insofar as the right to correct these errors is reserved for the exclusive benefit of the Service Provider;
- any reproduction of the software code or translation of the form of this code in order to obtain the information necessary for the interoperability of this software with other independently created software. In the event that the Customer wishes to decompile the software for interoperability purposes, the parties shall agree in advance on the terms and conditions of the service;
- any direct or indirect supply of the programme to a third party, whether free of charge or against payment, including rental, transfer, loan, service bureau, shared use, management facilities, ASP.
In the event that the Customer or an Affiliate does not use all of the rights acquired hereunder and as set forth in the Order Form, the Customer is hereby informed that the Service Provider will not revise the price of the licenses and associated support and maintenance services.
ARTICLE 5. SUPPORT AND MAINTENANCE
In order for the service provider to fulfil its support and maintenance obligation, the customer undertakes to
- give the Service Provider remote access to its network and, if applicable, to the network of its affiliates, so that it can take remote control of the Software;
- designate a qualified contact person who is able to identify and centralize users' questions and to inform the service provider precisely of problems encountered;
- maintain sufficiently qualified and trained users. The parties agree that the support shall be provided in a timely manner and shall not lead to a training service. The service provider reserves the right to charge for support services that are similar to training services;
- collaborate effectively and encourage users to collaborate effectively, including responding to the service provider's questions in a timely manner.
The service provider is not responsible for maintenance in the following cases:
- the Client's refusal to cooperate with the Service Provider in resolving the anomalies and, in particular, to respond to questions and requests for information;
- use of the software in a manner not in accordance with its purpose or the documentation;
- unauthorized modification of the software by the customer or a third party;
- the client's failure to comply with its obligations;
- the implementation of any computer programme or operating system that is not compatible with the software;
- Failure of the customer's computer, peripherals or network to operate normally;
- failure of electronic communication networks;
- voluntary act of nuisance, malice, sabotage;
- deterioration due to force majeure or misuse of the software.
The service provider cannot guarantee the continuity of the support and maintenance services, which are carried out remotely via the Internet, and the customer acknowledges this.
5.1. ASSISTANCE
When using the Programme, the Client benefits from a support centre which can be contacted from Monday to Friday from 9am to 12pm and from 2pm to 6pm by telephone on +33 2.85.29.33.80. The service provider undertakes to respond to the Customer within a maximum of 6 working hours.
5.2 MAINTENANCE
5.2.1 TECHNICAL MAINTENANCE
A fault hotline is available from Monday to Friday inclusive, from 9.00 am to 12.00 pm and from 2.00 pm to 6.00 pm, by calling +33(0)2.85.29.33.80. Fault reports must be confirmed without delay by email to the Service Provider at support@symalean.com. The service provider will diagnose the fault and then implement its correction.
(b) In case of a semi-blocking fault, the report shall be taken into account within 6 working hours. The service provider shall make every effort to correct the anomaly and propose an alternative solution allowing the use of the features in question within 5 working days.
5.2.2 PROGRESSIVE MAINTENANCE
The customer benefits from updates and functional developments of the software. Updates are sent by any means chosen by the service provider. If the customer has opted for specific software developments, updates and functional developments will give rise to an additional specific invoice. The service provider undertakes to send updated documentation for new versions of the programme. Corrections and changes to the software are expressly subject to the general terms and conditions.
5.3 TRAINING
The service provider will charge for the training service if its support and maintenance records reveal recurring problems in the customer's use, other than anomalies and timely assistance in the use of the software.
Training services ordered but not carried out will be invoiced 3 months after the date of signing the contract. The client may schedule them at any time within a maximum of 3 months after the invoice.
5.4. EFFECT, DURATION AND RENEWALS
The subscription to the support and maintenance services will be effective from the date of signature of the order form. The subscription period is fixed at three (3) years from the first day of the month following the month of the signature of the purchase order. This subscription to the support and maintenance services is tacitly renewed for a period of three (3) years and under the same conditions, in the event that it is not terminated by either of the parties by registered letter with acknowledgement of receipt sent three (3) months before the end of the subscription period. In the event of termination before the end of the subscription period at the Customer's initiative or at the Service Provider's initiative due to a fault on the part of the Customer, regardless of the cause, the unpaid fees are payable immediately and are due by the Customer without delay upon receipt of the corresponding invoice issued by the Service Provider.
ARTICLE 6. FINANCIAL CONDITIONS
6.1 LICENSING
The price of the licences must be paid in full by bank transfer when the order form is signed.
6.2 SUBSCRIPTION FEES FOR SUPPORT AND MAINTENANCE SERVICES
In exchange for the support and maintenance services provided, the customer shall pay a monthly fee as set out in the order form. The rates for support and maintenance services are quoted in Euros and do not include taxes or charges. Invoices will be sent to the customer electronically. The Parties expressly agree that the amount of the sums invoiced by the Service Provider will be reviewed each year on the basis of the Syntec index (French index created by the Ministry of the Economy and Finance).
In particular, the following services are excluded from the tariff and will be charged separately:
- training services ;
- On-site deployment services;
- specific development services.
6.3 PAYMENT CONDITIONS
Despite the duration of the commitment, support and maintenance services are invoiced monthly, at the beginning of each month. Invoices are payable on the 1st of each month by direct debit to the customer's bank account in accordance with the SEPA direct debit mandate. The amounts due by the customer will be increased by the applicable VAT.
6.4 DEFAULT OF PAYMENT
Without prejudice to possible damages, failure to pay an invoice on the due date automatically implies :
- the application of a late payment interest equal to three times the legal interest rate, without prior notice, as from the first day of delay; in addition, the service provider requires the payment of a fixed compensation for collection costs in the amount of fifty (50) euros;
- additional bank and management fees (follow-up of collections, reminders by mail and telephone, representation of direct debit rejections);
- immediate suspension of support and maintenance services;
- automatic termination of the subscription within 30 days after the service provider has sent an official notification by registered letter with acknowledgement of receipt, which has not been successful;
- the immediate payment of the fees that remain to be paid during the subscription period.
ARTICLE 7. DATA PROCESSING
7.1 PERSONAL DATA
If the data transmitted in the context of the execution of the General Terms and Conditions include personal data, the Client guarantees the Service Provider that it has fulfilled all its obligations under the law of 6 January 1978, known as the "Informatique et Libertés" law, and that it has informed the persons concerned of the use made of these personal data. In this respect, the Client guarantees the Service Provider against any recourse, complaint or claim in which personal data is reproduced in the context of the execution of the General Conditions.
7.2 DATA PROCESSING
Within the framework of the execution of the General Terms and Conditions, the Client assumes editorial responsibility. The Client is solely responsible for the quality, legality and relevance of the Data and content in the context of the execution of the General Conditions. The Client also warrants that it is the owner of the intellectual property rights to use the Data and Content. Consequently, the Service Provider shall not be liable for any failure of the Data and/or Content to comply with any laws and regulations, public order or the Client's needs. The Customer shall indemnify the Service Provider, at first request, against any damage that may result from the liability of a third party for the breach of this warranty. In general, the Customer is solely responsible for the content and messages distributed and/or uploaded in the context of the execution of the General Terms and Conditions. The service provider guarantees and declares that it does not process the personal data of the customer:
- To the extent necessary for the execution of the general conditions and/or ;
- In accordance with the client's written instructions.
The user is informed and agrees that the service provider may, in its legitimate business interest, collect, store and use the user's personal data for the following purposes
- send the Customer advertising or marketing messages or information that may be useful to him, depending on his use of the Software and associated services;
- to conduct research and development activities to improve the services, products and applications marketed.
The customer may at any time request the service provider to stop using the customer's personal data as described in this paragraph.
The Service Provider shall inform the Client if it becomes aware of a breach of security that results in the accidental or unlawful destruction, loss, alteration, unauthorized disclosure to a third party or unauthorized access to personal data. Upon termination of the Terms and Conditions and at the request of the Client, the Service Provider shall delete or return to the Client all personal data relating to the Client and destroy all existing copies of such data, unless the Service Provider is legally obliged to retain such data or has another legitimate business reason to do so.
7.3 DATA PROTECTION
Each party undertakes to implement the appropriate technical means to ensure data security.
7.4. SUBJECT
The purpose of these clauses is to define the conditions under which the service provider undertakes to carry out the personal data processing operations defined below on behalf of the controller. Within the framework of their contractual relationship, the parties undertake to comply with the regulations in force applicable to the processing of personal data and, in particular, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 applicable from 25 May 2018 (hereinafter, "the European Data Protection Regulation").
7.5. DESCRIPTION OF THE PROCESSING OPERATIONS SUBJECT TO SUBCONTRACTING
The Provider is authorized to process on behalf of the Controller the personal data necessary for the following services:
. Hosting of captured data
. Maintenance of the applications used
. Saving data entered in applications
. Intervention on your databases
All data are hosted in the Oceanet Technology data center - 2 Impasse Joséphine Baker - 44800 Saint Herblain.
7.6. PROCESSING OF PERSONAL DATA BY THE CUSTOMER
The Client assumes all editorial responsibility for the use of the App Services. The Customer is solely responsible for the quality, legality and relevance of the Data and content that it transmits for the use of the Services ofApp. In addition, the Client warrants that he/she is the owner of the intellectual property rights that allow him/her to use the Data and the Content. Consequently, the Service Provider shall not be liable for any failure of the Data and/or the Content to comply with laws and regulations, public order or the Client's needs. The Customer shall indemnify the Service Provider, at first request, against any damage that may result from the liability of a third party for the breach of this warranty. More generally, the Customer is solely responsible for the content and messages broadcast and/or uploaded through the Services of the app. The client remains the sole owner of the data constituting the content of the solutions.
7.7. OBLIGATIONS OF THE PROVIDER TO THE CONTROLLER
The provider agrees to:
1. process data only for the sole purpose(s) for which it is outsourced;
2. process the data in accordance with the instructions given by the controller. If the Provider considers that an instruction constitutes a breach of the European Data Protection Regulation or any other provision of Union or Member State law relating to data protection, it shall immediately inform the controller;
3. to guarantee the confidentiality of personal data processed under this contract;
4. ensure that persons authorized to process personal data under this contract :
- Are committed to confidentiality or are subject to an appropriate legal obligation of confidentiality
- Receive the necessary training on the protection of personal data
5. take into account, with respect to its tools, products, applications or services, the principles of data protection by design and data protection by default;
6. Subsequent Subcontracting:
The provider ensures the RGPD compliance of its subcontractors and in particular of the host.
If the subsequent processor fails to meet its data protection obligations, the original provider remains fully liable to the controller for the other processor's performance of its obligations.
7. Right of information of the persons concerned :
It is the responsibility of the data controller to provide information to the data subjects at the time of collection of the data.
8. Exercise of Individual Rights:
The data controller will comply with requests to exercise the rights of data subjects: right of access, rectification, erasure and objection, right to limitation of processing, right to data portability, right not to be subject to an automated individual decision (including profiling).
9. Notification of Personal Data Breaches:
The service provider shall notify the controller of any personal data breach within a maximum of 48 hours of becoming aware of it and by any appropriate means. This notification shall be accompanied by any useful documentation to enable the controller, if necessary, to notify the breach to the competent supervisory authority.
10. Safety measures:
The provider agrees to implement the following security measures:
- The means to ensure the continued confidentiality, integrity, availability, and resiliency of processing systems and services;
- The means to restore availability and access to personal data in a timely manner in the event of a physical or technical incident;
- A procedure to regularly test, analyze and evaluate the effectiveness of technical and organizational measures to ensure the security of the processing
11. Data Fate:
Upon completion of the services relating to the processing of such data, the Provider undertakes, at the request of the data controller, to return all personal data to him.
The return will be accompanied by the destruction of all existing copies in the provider's information systems. Once destroyed, the provider will provide written justification for the destruction.
Without a request from the controller, the data will be archived for 3 months and then destroyed.
12. Data Protection Officer:
The service provider has appointed Mr. Philippe Gauvrit, Société Clicoweb, as its data protection officer
13. Register of Categories of Processing Activities:
The provider represents that it maintains a written record of all categories of processing activities performed on behalf of the controller including:
- The name and contact details of the controller on whose behalf it is acting, of any subcontractors and, where applicable, of the data protection officer;
- Categories of processing carried out on behalf of the controller;
- Where applicable, transfers of personal data to a third country or international organization, including the identification of that third country or international organization and, in the case of transfers referred to in the second subparagraph of Article 49(1) of the European Data Protection Regulation, the documentation attesting to the existence of appropriate safeguards;
14. Documentation:
The Provider shall make available to the Controller the documentation necessary to demonstrate compliance with all of its obligations and to enable and assist in audits, including inspections, by the Controller or another auditor appointed by the Controller.
ARTICLE 8. PROPERTY
The Client is and remains the owner of all data used by the Software. The Service Provider is and remains the owner of the property rights to any element of the Software which it grants to the Client. The granting of the right to use the software does not imply the transfer of ownership rights to the Customer. The software shall remain the property of the Service Provider, irrespective of the form, language, program carrier or language used. The Client undertakes not to infringe the Service Provider's intellectual property rights in the Software, either directly or indirectly through third parties. In this respect, the Client shall maintain in good condition all proprietary and/or copyright notices that may be included in the constituent parts of the Software and its Documentation. It must also include these notices in any reproduction, in whole or in part, authorised by the Service Provider, and in particular in the backup copy. The Customer may not transfer all or part of the rights and obligations arising from this Agreement, whether by temporary assignment, sub-licence or any other agreement providing for the transfer of such rights and obligations.
ARTICLE 9. EVICTION GUARANTEE
The service provider represents and warrants :
- that the software it has developed is original within the meaning of the French Intellectual Property Code,
- that it owns all intellectual property rights in the Software and Documentation, enabling it to grant the Customer the use provided for herein.
The service provider declares and guarantees that the software is not capable of infringing the rights of third parties.
ARTICLE 10. ACCEPTANCE OF RISK AND LIMITATION OF LIABILITY
10.1 RISK ACCEPTANCE
The Customer declares that he/she has analysed the suitability of the Programme and the support and maintenance services for his/her needs in the pre-contractual phase, with the help of a qualified person to advise him/her if necessary. The Customer guarantees that each User has the necessary skills and knowledge and, in general, business experience related to the areas of business management that directly concern him. The Customer undertakes to take all necessary precautions when using the Software and the support and maintenance services.
10.2 LIMITATION OF LIABILITY
Each party shall be liable for the consequences of its errors, faults or omissions which result in direct damage to the other party. In addition, and in the event that the client proves the existence of a fault, the service provider shall only be liable for the financial consequences of direct and foreseeable damage resulting from the use of the software and the support and maintenance services. Accordingly, the service provider shall in no event be liable for any indirect or unforeseeable loss or damage on the part of the client or any third party, including without limitation any loss of profit, loss, inaccuracy or corruption of files or data, loss of business, loss of turnover or profits, loss of goodwill, loss of opportunity, cost of obtaining substitute product, service or technology, in connection with or resulting from the failure or non-performance of the services. The liability of the service provider shall not exceed, for all losses, the total amount of the sums paid by the customer for the acquisition of the licences plus the fees paid for the subscription to the support and maintenance services, up to a maximum of twelve monthly fees. Furthermore, the service provider cannot be held responsible for the accidental destruction of data by the customer or a third party having accessed the software. Neither party shall be liable for any failure to perform its obligations under this agreement if such failure results from : a government decision, including any withdrawal or suspension of authorisations of any kind whatsoever, a total or partial strike, internal or external to the company, a fire, a natural disaster, a state of war, an interruption or a total or partial blockage of the telecommunications or electricity networks, an act of computer hacking or, more generally, any other event of force majeure having the characteristics defined by the case law When the service provider is aware of the event, it must immediately inform the client of its inability to provide its services. Under no circumstances shall the suspension of obligations or the delay give rise to liability for failure to fulfil the obligation in question, nor shall it result in the payment of damages or penalties for delay.
ARTICLE 11. INSURANCE
The parties undertake to take out an insurance policy to cover the negative consequences of the risks associated with the execution of the general conditions. The service provider undertakes to provide the client with any evidence if the latter expressly requests it.
ARTICLE 12. NO SOLICITATION OF PERSONNEL
Each party shall refrain from hiring or employing, directly or through an intermediary, any employee of the other party without the express prior consent of the latter. This waiver is valid for the duration of the support and maintenance services subscription and for twelve (12) months after its termination.
ARTICLE 13. CONFIDENTIALITY
Each party agrees (i) to maintain the confidentiality of all information it receives from the other party, including (ii) not to disclose the other party's confidential information to any third party except to its employees or agents who doesn't have a need to know; and (iii) not to use the other party's confidential information except to exercise its rights and obligations under the agreement. Notwithstanding the foregoing, neither party shall have any obligation with respect to information that (i) is or becomes publicly known through no fault of the receiving party, (ii) is independently developed by the receiving party, (iii) is known to the receiving party prior to being disclosed by the other party (iv) would be lawfully received from a third party not bound by confidentiality, or (v) would be required to be disclosed by law or court order (in which case it would only be disclosed to the extent necessary and after written notice to the providing party). The obligations of the parties with respect to confidential information shall remain in force for the duration of the Helpdesk subscription, after its expiry, whether or not the information in question remains confidential to the disclosing party and, in any event, for a period of 3 years after the expiry of the Helpdesk subscription. Each party shall return all copies of documents and media containing confidential information of the other party. The parties further undertake to ensure that these provisions are respected by their personnel and by any employee or third party who may be involved in any capacity in the execution of this agreement.
ARTICLE 14. MISCELLANEOUS PROVISIONS
14.1 RIGHT TO QUOTE
The Service Provider reserves the right to name the Customer as one of its references, unless the Customer expressly requests otherwise and if the Service Provider is aware of this at the time of signing the Order Form. Consequently, the Customer authorizes the Service Provider to use its name in reference publications distributed in the Service Provider's commercial brochures and to display its logo, of which it will provide the matrix, on the Service Provider's website as well as at trade fairs or any other event whose purpose is to present or promote the Service Provider's products and services and any other means that contribute to the same end.
14.2 MUTUAL INDEPENDENCE
The parties are and will remain during the execution of the general conditions independent business partners.
14.3 NON-TRANSFERABILITY
Insofar as the Service Provider is the sole owner of the rights to the Software made available to the Client, the Parties agree that the Client has a personal, unique, non-transferable and non-exclusive right of use.
14.4 SEVERABILITY OF CLAUSES
The invalidity, lapse, unenforceability or unenforceability of one or all of the provisions of this Regulation shall not entail the invalidity, lapse, unenforceability or unenforceability of the other provisions, which shall remain in full force. However, the parties may, by mutual agreement, agree to replace the invalid provision(s).
14.5 APPLICABLE LAW
The general conditions are subject to French law, to the exclusion of any other legislation.
14.6 CHOICE OF DOMICILE
For the purpose of the execution of this Agreement and its consequences, each of the parties shall choose an address for service at their respective seats.
14.7 DISPUTES - JURISDICTION CLAUSE
Any dispute arising from these General Conditions shall be under the exclusive jurisdiction of the Commercial Court of LA ROCHE SUR YON (Vendée, France).