General terms of use, support and maintenance of SymaLean software
PREAMBLE
SYMALEAN's service provider is a publisher of Quality-Security-Environment-Electronic document management software /Human Resources/Hardware Resources and a provider of associated services such as assistance in the use and maintenance of this software. The Customer wishes to acquire the licenses allowing him to use the Quality-Security-Environment-Electronic Document Management Software and/or Human Resources and/or Hardware Resources and to use the support and maintenance services associated with this Software from a specialized Service Provider. The Customer acknowledges having received from the Service Provider all the information necessary to be able to assess the suitability of the Software and the support and maintenance services associated with its needs and to take all the precautions necessary for its use. The rights to use and the support and maintenance services of the SYMALEAN software are governed by these general conditions. The Customer acknowledges having read the General Terms and Conditions before signing the order form. The Service Provider reserves the right to update the General Terms and Conditions and undertakes to inform the Customer by any means. Continued use of the Software and/or use of support and maintenance services after the Service Provider has notified the Customer of any modification of the General Terms and Conditions presupposes unreserved acceptance by the Customer of the new General Terms and Conditions thus notified. The latest version of the general terms and conditions can be freely consulted by the customer at any time at www.symalean.com/CGVlicense.
EXHIBIT:
SECTION 1. DEFINITIONS
Capitalized terms in the General Terms and Conditions, whether used in the singular or plural, have the meanings given below.
A subsidiary is any entity controlled by the customer (the term “control” being understood within the meaning of article L.233-3 of the French Commercial Code);
mean difficulties in the operation of the application
— repetitive and reproducible — which can be of three types:
— By locking anomaly, we can hear any malfunction that makes it impossible to use the application;
— THEsemi-blocking anomaly refers to any operational anomaly that allows the application to be used for part of its functionalities;
— By Minor anomaly, we hear any minor operational anomaly that allows the application to be fully used in all its functionalities, even if it is achieved by a circumvention 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 conditions for renewing and paying for support and maintenance services (called Maintenance and Help Desk);
By specific development, on means software created exclusively for the customer by the service provider;
By documentation, we means paper documents or computer files relating to the use of the program, regardless of their format;
By Data, we means the information, publications and, in general, data and information of any kind contained in the client's database;
By identifiers, we mean to the both the user's own identifier (“login”) and the login password (“password”);
Software refers to the Quality-Security-Environment-Electronic document management software/Human Resources/Material Resources in object code form marketed by the Service Provider and its associated Documentation and for which a right of use is granted to the Customer hereunder;
By maintenance, we means all operations aimed at maintaining the software in working condition and updating it;
User refers to the person under the responsibility of the Customer (employee, worker, representative, etc.) and who has access to the Software on their computer, tablet or smartphone under the user license contracted by the Customer;
THEadmin user is the person responsible for managing a computer system, who is responsible for its security, operation, operation or evolution.
SECTION 2. OBJECT
The General Conditions define the conditions under which the Customer is authorized to use the Software and the associated support and maintenance services.
SECTION 3. CONTRACT DOCUMENTS
The general conditions are formed, between the service provider and the customer, by the following contractual documents presented in order of decreasing legal value:
— If 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 higher-ranking document prevails. No handwritten entry by the customer in the purchase order or in any other contractual document has value between the parties, unless the service provider accepts such modification or mention in writing.
SECTION 4. LICENSES
When acquiring electronic document management software licenses for quality, safety and the environment, human and material resources, the customer only benefits from the rights of use granted by the service provider. Use of the program means its permanent or temporary reproduction to allow it to function in accordance with the provisions of these general conditions and documentation, insofar as the loading, display, 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 those of its affiliates, within the limit of the number of licenses 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 general conditions and the documentation;
— exclusively for the personal and professional needs of the customer and its affiliates;
— within the limit of the number of identifiers (licenses) acquired;
Any use of the Software that is not in accordance with its intended purpose, as mentioned above, constitutes an infringement of the rights to use the Software and therefore an offense of infringement in accordance with the provisions of article L.335-3 of the Intellectual Property Code. The customer acknowledges that the software provided by the service provider is an intellectual work that the customer 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 said Program 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, except for any specific adjustment and/or complementary development to the Program that could be made in accordance with the associated Documentation.
— any intervention on the programs that make up the Software, regardless of 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 software created independently. In the event that the customer wishes to decompile the software for interoperability purposes, the parties will jointly agree in advance on the terms of execution of the service;
— any direct or indirect supply of the program to a third party, free of charge or for payment, in particular by rental, transfer, loan, service office, shared use, management facilities, ASP.
In the event that the Customer or an Affiliate does not use all the rights acquired hereunder and as defined in the order form, the Customer is informed that the Service Provider will not revise the price of the licenses and associated support and maintenance services.
SECTION 5. SUPPORT AND MAINTENANCE
In order for the service provider to fulfill its support and maintenance obligation, the customer undertakes to
— give the Service Provider remote access to its network and, if applicable, to its affiliates' networks, so that it can remotely take control of the Software;
— appoint a qualified contact person who is able to define and centralize user questions and to accurately inform the service provider of the problems encountered;
— maintaining sufficiently qualified and trained users. The parties agree that assistance should be provided in a timely manner and should 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 by responding to questions from the service provider as soon as possible.
The service provider is not responsible for maintenance in the following cases:
— the refusal of the Customer to collaborate with the Service Provider in resolving anomalies and, in particular, to respond to questions and requests for information;
— the use of the software in a manner that is not in accordance with its purpose or documentation;
— unauthorized modification of the software by the customer or a third party;
— failure by the customer to comply with his obligations;
— the implementation of any computer program or operating system that is not compatible with the software;
— Failure of the client's computer, peripherals, or network preventing the normal operation of the software;
— the failure of electronic communication networks;
— wilful act of nuisance, malicious intent, or sabotage;
— deterioration due to force majeure or incorrect use of the software.
The service provider cannot guarantee the continuity of support and maintenance services, carried out remotely via the Internet, which the customer acknowledges.
When using the Program, the Customer benefits from a support center that can be reached from Monday to Friday from 9 a.m. to 12 p.m. and from 2 p.m. to 6 p.m. by telephone at +33 2.85.29.33.80. The service provider undertakes to respond to the customer within a maximum of 6 business hours.
5.2. INTERVIEW
5.2.1 TECHNICAL MAINTENANCE
A hotline to deal with anomalies is available from Monday to Friday inclusive, from 9:00 to 12:00 and from 14:00 to 18:00, by calling +33 (0) 2.85.29.33.80. Problem reports should be confirmed without delay by email to the service provider at support@symalean.com. The service provider will diagnose the defect and then implement its correction.
(b) In the event of a semi-lock anomaly, the report is taken into account within 6 working hours. The service provider makes every effort to correct the anomaly and propose an alternative solution allowing the use of the functionalities in question within 5 working days.
5.2.2 PROGRESSIVE MAINTENANCE
The customer benefits from updates and functional evolutions 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 result in additional specific billing. The service provider undertakes to send updated documentation for new versions of the program. Corrections and changes to the software are expressly subject to the general conditions.
5.3 TRAINING
The service provider will charge for the training service if its support and maintenance records reveal recurring problems in the use of the customer, 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 signature of the contract. The customer can schedule them at any time within a maximum of 3 months after billing.
5.4. EFFECT, DURATION AND RENEWALS
The subscription to support and maintenance services will be effective from the date of signature of the order form. The subscription period is set at three (3) years beginning on the first day of the month following the month in which the purchase order was signed. This subscription to support and maintenance services is renewed tacitly for a period of three (3) years and under the same conditions, in the event that it is not cancelled by either party by registered letter with acknowledgement of receipt sent three (3) months before the end of the subscription period. In the event of cancellation before the end of the subscription period at the initiative of the Customer or at the initiative of the Service Provider as a result of a fault 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.
SECTION 6. FINANCIAL CONDITIONS
6.1 LICENSING
The price of the licenses must be paid in full by bank transfer when signing the order form.
6.2 SUBSCRIPTION FEES FOR SUPPORT AND MAINTENANCE SERVICES
In exchange for the support and maintenance services provided, the customer will pay a monthly fee set out in the order form. Prices for support and maintenance services are indicated in euros and do not include taxes or fees. Invoices will be sent to the customer electronically. The Parties expressly agree that the amount of the amounts invoiced by the Service Provider will be reviewed each year on the basis of the Syntec index (French index created by the Ministry of Economy and Finance).
In particular, the following services are excluded from the rate and will be billed separately:
— training services;
— on-site deployment services;
— specific development services.
6.3 PAYMENT TERMS
Despite the duration of the commitment, support and maintenance services are billed monthly, at the beginning of each month. Invoices are payable on the 1st of each month by direct debit according to the SEPA direct debit mandate from the customer's bank account. Amounts due by the customer will be increased by the applicable VAT.
6.4 PAYMENT FAILURE
Without prejudice to possible damages and interest, failure to pay an invoice by its due date automatically involves:
— the application of late payment interest equal to three times the legal interest rate, without prior notice, starting from the first day of delay; in addition, the service provider requires the payment of a lump-sum compensation for recovery costs in the amount of fifty (50) euros;
— additional banking and management fees (monitoring of receipts, reminders by post and telephone, representation of rejections of domiciliations);
— the immediate suspension of support and maintenance services;
— the automatic cancellation of the subscription within 30 days following the sending by the service provider of an official notification by registered letter with acknowledgement of receipt, which was unsuccessful;
— immediate payment of fees that remain to be paid during the subscription period.
SECTION 7. DATA PROCESSING
7.1 PERSONAL DATA
If the data transmitted in connection with the execution of the General Conditions includes personal data, the Customer guarantees the Service Provider that he has fulfilled all his obligations under the law of 6 January 1978, known as the “Informatics and Freedoms” law, and that he has informed the persons concerned of the use made of this personal data. As such, the Customer guarantees the service provider against any recourse, complaint or complaint in which the personal data is reproduced in the context of the execution of the General Conditions.
7.2 DATA PROCESSING
As part of the execution of the General Conditions, the Customer assumes editorial responsibility. The Customer 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 Customer also guarantees that he is the owner of the intellectual property rights allowing him to use the Data and the content. Consequently, the Service Provider declines all responsibility in the event of non-compliance with the Data and/or the content of laws and regulations, public order or the needs of the Customer. The Customer guarantees 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 downloaded as part of the execution of the General Conditions. The service provider guarantees and declares that it does not process the customer's personal data:
— To the extent necessary for the execution of the general conditions and/or;
— In accordance with the customer's written instructions.
The user is informed and accepts that the service provider may, in its legitimate commercial 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 carry out research and development activities in order to improve marketed services, products and applications.
The customer may at any time ask the service provider to stop using the customer's personal data as described in this paragraph.
The service provider will inform the customer if it becomes aware of a security breach that results in accidental or unlawful destruction, loss, alteration, unauthorized disclosure to a third party, or unauthorized access to personal data. Upon termination of the General Terms and Conditions and at the request of the customer, the Service Provider deletes or returns to the customer all personal data concerning him and destroys all existing copies of this data, unless the Service Provider is legally obliged to keep this data or has another legitimate business reason to do so.
7.3 DATA PROTECTION
Each party undertakes to implement appropriate technical means to ensure data security.
The purpose of these clauses is to define the conditions under which the service provider undertakes to carry out on behalf of the data controller the personal data processing operations defined below. As part of their contractual relationships, the parties undertake to comply with the regulations in force applicable to the processing of personal data and, in particular, with Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 applicable as of 25 May 2018 (hereinafter, “the European Data Protection Regulation”).
The provider is authorized to process, on behalf of the data controller, the personal data necessary for the following services:
. Hosting the data entered
. Maintenance of the applications used
. Save data entered in applications
. Intervention on your databases
All data is hosted in the Oceanet Technology data center — 2 Impasse Joséphine Baker — 44800 Saint Herblain.
The customer assumes all editorial responsibility for the use of the application services. The Customer is solely responsible for the quality, legality and relevance of the Data and content that it transmits for the purposes of using the Application Services. In addition, the Customer guarantees that he is the owner of the intellectual property rights that allow him to use the Data and the content. Consequently, the Service Provider declines all responsibility in the event of non-compliance with the Data and/or the content of laws and regulations, public order or the needs of the Customer. The Customer guarantees 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 downloaded through the Application Services. The customer remains the sole owner of the data constituting the content of the solutions.
The service provider undertakes to:
1. process data only for the sole purpose (s) that are/are the subject of subcontracting;
2. process the data in accordance with the instructions given by the data controller. If the provider considers that an instruction constitutes a violation of the European Data Protection Regulation or of any other provision of Union law or the law of the Member States relating to data protection, he shall immediately inform the data controller;
3. ensure the confidentiality of personal data processed under this contract;
4. ensure that persons authorized to process personal data under this contract:
• Undertake to respect confidentiality or are subject to an appropriate legal confidentiality obligation
• Receive the necessary training in the protection of personal data
5. take into account, with respect to its tools, products, applications or services, the principles of data protection at the design stage and data protection by default;
6. Subsequent subcontracting:
The service provider ensures the RGPD compliance of its subcontractors and in particular the host.
If the subsequent subcontractor does not fulfill its data protection obligations, the initial provider remains fully responsible to the data controller for the performance by the other subcontractor of its obligations.
7. Right to information for the persons concerned:
It is the responsibility of the data controller to provide information to the persons concerned by the processing operations at the time of data collection.
8. Exercise of people's rights:
The data controller will submit to requests to exercise the rights of the persons concerned: right of access, rectification, deletion and opposition, right to restriction 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 provider shall notify the data controller of any personal data breach within a maximum of 48 hours after becoming aware of it and by any appropriate means. This notification shall be accompanied by any useful documentation in order to allow the data controller, if necessary, to notify the competent supervisory authority of this violation.
10. Security measures:
The service provider undertakes to implement the following security measures:
• Means to ensure the continued confidentiality, integrity, availability, and resilience of processing systems and services;
• The means to restore the availability of personal data and access to them within an appropriate time frame in the event of a physical or technical incident;
• A procedure aimed at regularly testing, analysing and evaluating the effectiveness of technical and organizational measures to ensure the security of processing
11. Data output:
At the end of the provision of services relating to the processing of this 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 service provider will justify the destruction in writing.
Without a request from the data controller, the data will be archived for 3 months, then destroyed.
12. Data protection officer:
The service provider has appointed Mr. Philippe Gauvrit, Société Clicoweb as data protection officer
13. Register of categories of processing activities:
The provider declares to keep a written record of all categories of processing activities carried out on behalf of the data controller, including:
· The name and contact details of the data controller on whose behalf he is acting, any subcontractors and, where applicable, the data protection officer;
· The categories of processing carried out on behalf of the data controller;
· Where applicable, transfers of personal data to a third country or to an 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, documents attesting to the existence of appropriate guarantees;
14. Documentation:
The provider shall provide the data controller with the documentation necessary to demonstrate compliance with all of its obligations and to allow audits, including inspections, to be carried out by the data controller or another auditor appointed by him, and to contribute to these audits.
SECTION 8. PROPERTY
The customer is and remains the owner of all data used by the software. The Service Provider is and remains the owner of the property rights relating to any element of the Software whose use it grants to the Customer. Granting the right to use the software does not imply the transfer of ownership rights to the customer. The software remains the property of the service provider, regardless of the form, language, program support, or language used. The Customer undertakes not to infringe the intellectual property rights of the Service Provider on the Software, whether directly or indirectly through third parties. In this respect, the Customer must maintain in good condition all ownership and/or copyright notices that may be included in the constituent elements of the Software and its Documentation. It must also include these notices in any total or partial reproduction authorized 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 hereunder, whether as part of a temporary assignment, a sublicense or any other contract providing for the transfer of these rights and obligations.
SECTION 9. EXPULSION GUARANTEE
The service provider represents and guarantees:
— that the software it has developed is original within the meaning of the French intellectual property code,
— that he holds all the intellectual property rights to the Software and its Documentation, allowing him to grant the Customer the use provided for herein.
The service provider declares and warrants that the software is not capable of infringing the rights of third parties.
SECTION 10. ACCEPTANCE OF RISKS AND LIMITATION OF LIABILITY
10.1 RISK ACCEPTANCE
The Customer declares that he has analyzed the suitability of the Program and the support and maintenance services to his needs in the pre-contractual phase, with the help of a qualified person to advise him if necessary. The Customer guarantees that each User has the necessary skills and knowledge and, in general, commercial experience related to the areas of business management that directly concern them. The Customer undertakes to take all necessary precautions in the use of the Software and the support and maintenance services.
10.2 LIMITATION OF LIABILITY
Each party is responsible for the consequences of its errors, faults or omissions that cause direct damage to the other party. In addition, and in the event that the customer proves the existence of a fault, the service provider will only be responsible for compensating the pecuniary consequences of direct and foreseeable damages resulting from the use of the software and the support and maintenance services. Consequently, the service provider cannot under any circumstances be held liable for any indirect or unforeseeable loss or damage on the part of the customer or a third party, including in particular any loss of profit, loss, inaccuracy or corruption of files or data, loss of business, loss of turnover or profits, loss of customers, loss of opportunity, cost of obtaining a replacement product, service or technology, in connection with or resulting from the failure or failure to perform the services. The liability of the service provider may not exceed, for all losses, the total amount paid by the customer for the acquisition of licenses plus the fees paid for the subscription of support and maintenance services, up to a limit of twelve monthly fees. Furthermore, the service provider cannot be held responsible for the accidental destruction of the data by the customer or a third party who has accessed the software. Neither party may be held liable for a breach of its obligations in connection with the execution of this contract, if such failure results from: a governmental decision, including any withdrawal or suspension of authorizations of any kind whatsoever, a total or partial strike, internal or external to the company, a fire, a natural disaster, a state of war, a total or partial interruption or blocking of telecommunications networks or electrical, from an act of computer hacking or, more generally, any other force majeure event having the characteristics defined by case law. When the service provider becomes aware of the event, it must immediately inform the customer of its inability to provide its services. Under no circumstances can the suspension of obligations or delay give rise to liability for breach of the obligation in question, or result in the payment of damages or penalties for delay.
SECTION 11. INSURANCE
The parties undertake, each as far as it is concerned, to take out an insurance policy to cover the negative consequences of risks associated with the execution of the general conditions. The service provider undertakes to provide the customer with any proof if the latter expressly requests it.
SECTION 12. NO SOLICITATION OF PERSONNEL
Each party shall not hire or employ, directly or through an intermediary, any employee of the other party without the express prior consent of the other party. This waiver is valid for the entire duration of the subscription to support and maintenance services and for twelve (12) months after termination.
SECTION 13. CONFIDENTIALITY
Each party agrees to (i) maintain the confidentiality of all information it receives from the other party, including (ii) not to disclose the other party's confidential information to third parties, except to its employees or agents who need to know it; and (iii) not to use the other party's confidential information except to exercise its rights and obligations under the Agreement. Notwithstanding the above, neither party has any obligation with respect to the information (i) is or becomes publicly known without the receiving party being responsible for it, (ii) is developed independently by the receiving party, (iii) is known to the receiving party before being disclosed by the other party, (iv) would be legally received from a third party not bound by confidentiality, or (v) should be disclosed by law or court order (in which case it would only be disclosed to the extent necessary and after written notification to the party providing it). The obligations of the parties with respect to confidential information remain in effect for the duration of the support service subscription, after its expiration, that the information in question remains confidential for the party disclosing it and, in any event, for a period of 3 years after the expiration of the support service subscription. Each party returns all copies of documents and materials containing confidential information from the other party. The parties also undertake to ensure that these provisions are respected by their staff and by any employee or third party who may be involved in any capacity in the execution of this Agreement.
SECTION 14. MISCELLANEOUS PROVISIONS
14.1 RIGHT TO CITE
The Service Provider reserves the right to cite the Customer as one of its references, unless expressly requested by the Customer and if the Service Provider is aware of it at the date the purchase order is signed. Consequently, the Customer authorizes the Service Provider to use its name in the reference publications distributed in the Service Provider's commercial brochures and to display its logo, the matrix of which it will provide, on the Service Provider's website as well as at trade shows or any other event intended to present or promote the Service Provider's products and services and any other means that contribute to the same purpose.
14.2 MUTUAL INDEPENDENCE
The parties are and will remain during the execution of the terms and conditions of the 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 Customer, the Parties agree that the Customer has a personal, unique, non-transferable and non-exclusive right of use.
14.4 DIVISIBILITY OF CLAUSES
The invalidity, invalidity, unenforceability or unenforceability of any or all of the provisions of these regulations does not result in the invalidity, invalidity, unenforceability or unenforceability of the other provisions, which remain in full force and effect. However, the parties may, by mutual agreement, agree to replace the invalid provision or provisions.
14.5 APPLICABLE LAW
The general conditions are subject to French law, to the exclusion of any other legislation.
14.6 CHOICE OF RESIDENCE
For the purposes of implementing this Agreement and its consequences, each Party shall select an address for delivery or notification at their respective headquarters.
14.7 DISPUTES — JURISDICTION CLAUSE
Any dispute arising from these General Terms and Conditions will be under the exclusive jurisdiction of the Commercial Court of LA ROCHE SUR YON (Vendée, France).