SYMALEAN GENERAL TERMS & CONDITIONS
GENERAL TERMS & CONDITIONS OF USE, SUPPORT AND MAINTENANCE FOR SYMALEAN SOFTWARE
SYMALEAN is a Software publisher for Quality-Safety-Environment-Document Management Systems-Human Resources-Material Resources and a provider of associated services, namely the user support and maintenance of these Software solutions. The Client wishes to acquire the licences enabling said Client to use the Software for Quality and/or Security and/or Environment and/or Document Management Systems and/or Human Resources and/or Material Resources and the services associated thereto, of support and maintenance for this Software, from a specialised Service Provider. The Client acknowledges having received from the Service Provider all the necessary information enabling it to assess the suitability of the Software and associated support and maintenance services to its needs and to take all the necessary precautions for their use. The rights of use and the support and maintenance services for SYMALEAN Software are governed by these General Terms and Conditions. The Client acknowledges having read the General Terms and Conditions prior to signing the Purchase Order. The Service Provider reserves the right to update the General Terms and Conditions and undertakes to inform the Client thereof by any means. The continued use of the Software and/or the use of support and maintenance services, subsequent to notification by the Service Provider of the modification of these GTC, supposes the unreserved acceptance by the Client of the new General Terms and Conditions thus notified. The most recent version of the General Terms and Conditions may be freely consulted by the Client at any time on www.symalean.com/CGVLICENCE.
THIS HAVING BEEN STATED, IT IS AGREED AS FOLLOWS:
ARTICLE 1. DEFINITIONS
Capitalised terms used in the General Terms and Conditions, whether used in the singular or the plural, shall have the meaning given to them below.
Affiliate means any entity controlled by the Client (the term “control” being understood in the sense given to it by Article L. 233-3 of the French Commercial Code);
Anomalies indicate the application’s operational difficulties – repetitive and reproducible –, which can be of three types:
– Blocking Anomaly means any malfunction that makes it impossible to use the application;
– Semi-Blocking Anomaly refers to any malfunction allowing the application and its features to be used in part;
– Minor Anomaly refers to any minor malfunction that does not prevent the application and all its features from being fully used, even if this is done by means of a workaround procedure;
Purchase Order means the document signed by the Client describing the Software and the number of licences purchased, as well as the duration and terms of renewal and payment of support and maintenance services (entitled Maintenance & Help Desk);
Specific Development means the IT program designed exclusively for the Client by the Service Provider;
Documentation means the paper documents or computer files relating to the use of the Software, regardless of their format;
Data refers to information, publications and, in general, data and information of any kind in the Client database;
Login Details refer to both the user’s own ID (“login”) and the password;
Software refers to the Quality-Safety-Environment-Document Management Systems-Human Resources-Material Resources Software in the form of object code marketed by the Service Provider and their associated Documentation, for which a right of use is granted to the Client hereunder;
Maintenance means all operations aimed at maintaining the Software in working order and updating it;
User refers to the person placed under the responsibility of the Client (employee, representative, etc.) and having access to the Software on his/her computer, tablet or smartphone under the user licence contracted by the Client;
User-Administrator designates the person in charge of managing a computer system, who is responsible for it, whether in terms of its security, its operation, its use or its development.
ARTICLE 2. PURPOSE
The General Terms and Conditions define the conditions under which the Client is authorised to use the Software and the associated support and maintenance services.
ARTICLE 3. CONTRACTUAL DOCUMENTS
The General Terms and Conditions are constituted, between the Service Provider and the Client, by the following contractual documents presented in descending order of legal value:
– If applicable, any amendment signed between the Parties that modifies one or more contractual documents;
– The content of the General Terms and Conditions;
– Purchase Orders;
In the event of a contradiction between one or more provisions contained in the documents mentioned above, the higher ranking document shall prevail. No handwritten annotation by the Client on the Purchase Order or on any other contractual document shall have any value between the Parties unless the Service Provider agrees in writing to said modification or comment.
ARTICLE 4. LICENCES
By purchasing licences for the Quality-Safety-Environment-Document Management Systems-Human Resources-Material Resources Software, the Client only benefits from a right of use granted by the Service Provider. Use of the Software implies its permanent or temporary reproduction with a view to enabling its operation in accordance with the requirements of these General Terms and Conditions and the Documentation, to the extent that the loading, display, execution, transmission or storage of the Software requires reproduction.
The right of use is granted exclusively in the form of encrypted source code for the internal operating needs of the Client and those of its Affiliates, within the limit of the number of licences acquired, as indicated in the Purchase Order.
The Software shall be used in accordance with its intended purpose to the exclusion of any other, namely:
– In accordance with the provisions of these General Terms and Conditions and the Documentation;
– Solely for the personal and professional needs of the Client and its Affiliates;
– Within the limit of the number of logins (licences) acquired.
Any use of the Software that does not comply with its intended purpose as referred to above would constitute an infringement of the exploitation rights of the Software and, therefore, an infringement offence in accordance with the provisions of Article L. 335-3 of the French Intellectual Property Code. The Client acknowledges that the Software supplied by the Service Provider is an intellectual work and that they and their staff undertake to consider it as such by not:
– Making any copy or reproduction in whole or in part of said Software or its Documentation by any means and in any form, with the exception of the back-up copy authorised in accordance with the provisions of the French Intellectual Property Code (Article L. 122-5);
– Carrying out any translation, adaptation, reorganisation or other modification of the Software, with the exception of configurations and/or additional Specific Developments to the Software that may be carried out in accordance with the associated Documentation;
– Performing any intervention on the programs comprising the Software, regardless of its nature, including for the purpose of correcting errors likely to affect said Software, in as much as the right to correct said errors is reserved for the exclusive benefit of the Service Provider;
– Making 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 said Software with other independently created software. In the event that the Client wishes to decompile the software for the purpose of interoperability, the parties shall agree together and in advance on the terms of execution of the service;
– Making the Software directly or indirectly available for the benefit of a third party, free of charge or for consideration, in particular by rental, transfer, loan, office service, shared use, management facilities, ASP.
In the event of non-use by the Client or an Affiliate of all the rights acquired hereunder and as defined in the Purchase Order, the Client is informed that the Service Provider will not revise the price of the licences and the associated support and maintenance services.
ARTICLE 5. SUPPORT & MAINTENANCE
To enable the Service Provider to fulfil its obligation of support and maintenance, the Client undertakes to:
– Provide the Service Provider with remote access to its network and, where applicable, those of its Affiliates so that it can remotely handle the Software;
– Appoint a qualified contact person capable of defining and centralising questions from Users and submitting the issues encountered to the Service Provider in a precise manner;
– Maintain suitably qualified and trained Users. It is agreed between the Parties that the support must be occasional and must not lead to a training service. The Service Provider reserves the right to invoice support services that are tantamount to training services;
– Collaborate effectively and encourage Users to collaborate effectively, in particular by answering questions from the Service Provider as quickly as possible.
The Service Provider is not responsible for maintenance in the following cases:
– Refusal by the Client to cooperate with the Service Provider in resolving anomalies and, in particular, to respond to questions and requests for information;
– Use of the Software in a manner that is not compliant with its intended purpose or Documentation;
– Unauthorised modification of the Software by the Client or by a third party;
– Breach by the Client of its obligations;
– Installation of any computer programs or operating systems that are not compatible with the Software;
– Failure of the Client’s computer, peripheral devices or network, preventing normal operation of the Software;
– Failure of electronic communication networks;
– Deliberate act of degradation, malice, sabotage;
– Deterioration due to force majeure or misuse of the Software.
The Service Provider is not able to guarantee the continuity of support and maintenance services, performed remotely via the Internet, which the Client acknowledges.
Concerning the use of the Software, the Client has access to a support centre (“Help Desk”) that it can contact from Monday to Friday from 9am to 12pm and 2pm to 6pm (CET) by calling +33 (0)2 85 29 33 80. The Service Provider undertakes to respond to the Client within six (6) working hours at the most.
5.2.1 TECHNICAL MAINTENANCE
A telephone support service (“Help Desk”) to deal with Anomalies is available from Monday to Friday inclusive, from 9am to 12pm and 2pm to 6pm (CET), by calling +33 (0)2 85 29 33 80. Anomaly reports shall be confirmed to the Service Provider without delay by email at firstname.lastname@example.org. The Service Provider shall diagnose the anomaly and then implement its correction.
(a) In the event of a Blocking Anomaly, the report is taken into account within (six) 6 business hours. The Service Provider shall make every effort to correct the Blocking Anomaly as soon as possible, and shall propose a workaround solution within two (2) working days.
(b) In the event of a Semi-Blocking Anomaly, the report is processed within six (6) business hours. The Service Provider shall make every effort to correct the Anomaly, and propose a workaround solution that will enable the use of the features in question within five (5) working days.
(c) In the event of a Minor Anomaly, the report is taken into account as soon as possible and its correction will be proposed in a new version of the Software, which will be delivered as part of upgrade maintenance.
5.2.2 UPGRADE MAINTENANCE
The Client benefits from Software updates and operational upgrades. Updates shall be dispatched by any means chosen by the Service Provider. If the Client has opted for Specific Developments for its Software, updates and operational upgrades shall give rise to additional specific invoicing. The Service Provider undertakes to send updated Documentation for new versions of the Software. Software corrections and upgrades are expressly subject to the General Terms and Conditions.
The Service Provider shall invoice a training service if its intervention records, in the context of support and maintenance, show recurring problems of use by the Client distinct from Anomalies and occasional support with the use of the Software.
5.4. EFFECT, DURATION & RENEWALS
Subscription to support and maintenance services shall take effect on the date on which the Purchase Order is signed. The subscription period is set at three (3) years from the first day of the month following the month in which the Purchase Order is signed. This subscription to support and maintenance services shall be tacitly renewed for a period of three (3) years and according to the same terms, in the absence of termination sent by one or the other of the Parties, by registered letter with acknowledgement of receipt, three (3) months before the end of the subscription period. In the event of termination before its expiry at the initiative of the Client, or at the initiative of the Service Provider as a result of the Client’s misconduct, regardless of the cause, the remaining fees will become immediately due and shall be paid without delay by the Client upon receipt of the corresponding invoice issued by the Service Provider.
ARTICLE 6. FINANCIAL CONDITIONS
The price of the licences shall be paid in full by bank transfer upon signature of the Purchase Order.
6.2 SUBSCRIPTION FEES FOR SUPPORT & MAINTENANCE SERVICES
In return for the support and maintenance services provided, the Client shall pay a monthly fee as set out in the Purchase Order. The fees for support and maintenance services are stated in euros and are exclusive of tax and charges. Invoices shall be sent electronically to the Client. It is expressly agreed between the Parties that the amount of the sums invoiced by the Service Provider shall be revised each year according to the Syntec index.
The following are excluded from the fee and are invoiced separately:
– Training services;
– On-site deployment services;
– Specific Development Services.
6.3 TERMS OF PAYMENT
Notwithstanding the commitment period, 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, by way of the SEPA direct debit mandate on the Client’s bank account. The amounts due by the Client shall be increased by the rate of VAT in effect.
Without prejudice to any damages, failure by the Client to pay an invoice on its due date shall automatically result in:
– The application of interest for late payment equal to three (3) times the legal interest rate, without prior formal notice, as of the first day overdue; in addition, the Service Provider shall require the payment of fixed compensation for recovery costs for the amount of fifty (50) euros;
– Additional bank and management charges (monitoring of recovery, follow-up letters and telephone charges for reminders, representation of rejected direct debits);
– The immediate suspension of support and maintenance services;
– The automatic termination of the subscription within thirty (30) days of the Service Provider sending formal notice by registered letter with acknowledgement of receipt that remains without effect;
– Outstanding fees for the remainder of the subscription period becoming immediately payable.
ARTICLE 7. DATA PROCESSING
7.1. PERSONAL DATA
If Data conveyed during the execution of the General Terms and Conditions includes personal data, the Client guarantees to the Service Provider that it has fulfilled all the obligations incumbent upon it under the terms of the Law of 6 January 1978 known as the “Data Protection” Act, and that it has informed the private individuals concerned of the use made of said personal data. In this respect, the Client guarantees the Service Provider against any appeal, complaint or claim concerning personal data reproduced during the execution of the General Terms and Conditions.
7.2. DATA PROCESSING
As part of the execution of the General Terms and Conditions, the Client shall bear any editorial responsibility. The Client is solely responsible for the quality, legality and relevance of the Data and content within the context of the execution of the General Terms and Conditions. It also guarantees that it holds the intellectual property rights enabling it to use the Data and content. Consequently, the Service Provider disclaims all liability in the event of Non-Conformities of the Data and/or content with laws and regulations, public order or the needs of the Client. The Client guarantees the Service Provider upon first request against any loss that may result from its being implicated by a third party for a breach of this guarantee. More generally, the Client is solely responsible for the content and messages disseminated and/or downloaded as part of the execution of the General Terms and Conditions. The Service Provider guarantees and states that it shall only process the Client’s personal Data:
– When necessary for the execution of the General Terms and Conditions and/or;
– According to the Client’s written instructions.
The Client is informed and accepts that the Service Provider may, in its legitimate business interest, collect, retain and use the Client’s personal Data with a view to:
– Sending the Client advertising or marketing messages or information that may be useful to the Client, depending on its use of the Software and associated services;
– Conducting research and development to improve the services, products and applications marketed.
The Client may at any time request that the Service Provider cease to use the Client’s personal Data as described in this paragraph.
The Service Provider shall notify the Client if it becomes aware of a breach of security rules resulting in the accidental or unlawful destruction, loss, alteration or unauthorised disclosure of personal Data to a third party, or unauthorised access to such Data. Upon expiry of the General Terms and Conditions and at the Client’s request, the Service Provider will delete or return all personal Data concerning the Client and destroy all existing copies of such Data, unless the Service Provider is legally obliged to retain that Data or has another legitimate business reason to do so.
7.3 DATA PROTECTION
Each of the Parties undertakes to implement the appropriate technical means to ensure the security of the Data.
ARTICLE 8. PROPERTY
The Client is and remains the owner of all the Data that it uses via the Software. The Service Provider is and remains the owner of the property rights relating to any element of the Software, the use of which it grants to the Client. Granting the right to use the Software does not entail the transfer of ownership rights to the Client. The Software remains the property of the Service Provider, regardless of the form, wording, program medium or language used. The Client undertakes not to violate, directly or indirectly through third parties, the Service Provider’s intellectual property rights to the Software. In this respect, it shall maintain in good condition all proprietary and/or copyright notices that may be included on the components of the Software and their Documentation. Similarly, these notices shall appear on any total or partial reproduction authorised by the Service Provider and in particular on the back-up copy. The Client may not assign all or part of the rights and obligations hereunder, whether in the context of a temporary assignment, a sub-licence or any other contract providing for the transfer of said rights and obligations.
ARTICLE 9. GUARANTEE OF PEACEFUL POSSESSION
The Service Provider states and guarantees:
– That the Software it has developed is original under the terms of the French Intellectual Property Code;
– That it holds all intellectual property rights to the Software and its Documentation enabling it to grant the Client the use provided for herein.
The Service Provider states and guarantees that the Software is not likely to violate the rights of third parties.
ARTICLE 10. ACCEPTANCE OF RISKS & LIMITATION OF LIABILITY
10.1 ACCEPTANCE OF RISKS
The Client declares having assessed the suitability of the Software and support and maintenance services to its needs in the pre-contractual phase, with the help of a qualified person for advisory purposes where necessary. The Client guarantees that each User possesses the necessary skills and knowledge, and in general, the professional expertise related to the business management fields that directly concern this User. The Client undertakes to take all necessary precautions for the use of the Software and support and maintenance services.
10.2 LIMITATION OF LIABILITY
Each of the Parties assumes responsibility for the consequences resulting from its faults, errors or omissions, causing direct damage to the other Party. Furthermore, and in the event of a fault proven by the Client, the Service Provider shall only be liable for the financial consequences of direct and foreseeable damage due to the use of the Software and support and maintenance services. Consequently, the Service Provider may not under any circumstances be held liable for indirect or unforeseeable losses or damages to the Client or third parties, including in particular any lost earnings, loss, inaccuracy or corruption of files or Data, damage to business, loss of turnover or profit, loss of clientèle, loss of opportunity, cost of obtaining a substitute product, service or technology, in relation to or arising from the non-performance or wrongful performance of the services. The Service Provider’s liability shall not exceed, all losses combined, the total amount of the sums paid by the Client for the acquisition of the licences plus the fees paid for the subscription of support and maintenance services within the limit of twelve (12) monthly fees. Furthermore, the Service Provider shall not be held liable for the accidental destruction of Data by the Client or a third party who has accessed the Software. Neither of the Parties may be held liable for any breach of its obligations in connection with the execution of this Contract, if such a breach results from a government decision, including any withdrawal or suspension of authorisations of any kind, a full or partial strike, internal or external to the company, a fire, a natural disaster, a state of war, a total or partial interruption or blockage of the telecommunications or electricity networks, an act of computer hacking or more generally any other event of force majeure presenting the characteristics defined by jurisprudence. The Service Provider, upon recognising such an event, shall immediately inform the Client of its inability to carry out the service. The suspension of obligations or their delay cannot, under any circumstances, be a cause of liability for non-execution of that obligation, or lead to the payment of damages or late penalties.
ARTICLE 11. INSURANCE
The Parties, each in their own right, undertake to take out an insurance policy intended to cover the harmful consequences of the risks related to the execution of the General Terms and Conditions. The Service Provider undertakes to provide any supporting documents to the Client if the latter so requests.
ARTICLE 12. NON-SOLICITATION OF PERSONNEL
Each Party undertakes not to employ or to have work for them, whether directly or via another person, any employee of the other Party without prior express agreement by the latter. This waiver is valid for the entire duration of the subscription to support and maintenance services and for the twelve (12) months following its termination.
ARTICLE 13. CONFIDENTIALITY
Each of the Parties undertakes to (i) keep confidential all information that it receives from the other Party, and in particular to (ii) not disclose the other Party’s confidential information to any third party, other than employees or agents on a need-to-know basis; and to (iii) only use the other Party’s confidential information for the purpose of exercising its rights and fulfilling its obligations under the terms of the Contract. Notwithstanding the above, neither Party shall have any obligation with respect to information that (i) has or would have fallen into the public domain through no fault of the receiving Party, (ii) was developed independently by the receiving Party, (iii) was known to the receiving Party before the other Party disclosed it, (iv) was lawfully received from a third party not subject to an obligation of confidentiality, or (v) must be disclosed by law or by court order (in which case it shall only be disclosed to the extent required and after the Party having provided said information has been notified in writing). The obligations of the Parties with regard to confidential information shall remain in force throughout the subscription period for support and maintenance services, and after its expiry, the information concerned shall remain confidential for the Party disclosing it and, in any event, for a period of three (3) years after the end of the subscription period for support and maintenance services. Each Party shall return all copies of documents and media containing the other Party’s confidential information. The Parties also undertake to ensure compliance with these provisions by their staff, and by any employee or third party who may intervene in any capacity whatsoever in the context of the execution of this Contract.
ARTICLE 14. MISCELLANEOUS PROVISIONS
14.1 RIGHT TO CITE
The Service Provider reserves the right to cite the Client among its references, unless expressly requested otherwise by the Client, having informed the Service Provider on the date of signature of the Purchase Order. The Client therefore authorises the Service Provider to use its name in publications of references distributed on the Service Provider’s commercial brochures and to affix its logo, the template of which it will provide, on the Service Provider’s website, but also during trade fairs or any other event whose purpose is the presentation or promotion of the Service Provider’s products and services and any other media contributing to this same purpose.
14.2 RECIPROCAL INDEPENDENCE
The Parties are and shall remain independent business partners throughout the entire execution of the General Terms and Conditions.
Insofar as the Service Provider alone holds the rights to the Software made available to the Client, the Parties agree that the Client benefits from a personal, one-off, non-transferable and non-exclusive right of use.
14.4 SEVERABILITY OF CLAUSES
The invalidity, lapse, absence of binding force or unenforceability of any of the clauses herein shall not render invalid, null, lacking in binding force or unenforceable the other clauses, which shall remain in full effect. However, the Parties may, by mutual agreement, agree to replace the invalid clause(s).
14.5. APPLICABLE LAW
The General Terms and Conditions are subject to French law, to the exclusion of any other legislation.
14.6. ELECTION OF RESIDENCE
For the execution of this Contract and its consequences, the Parties respectively elect residence at their registered offices.
14.7. DISPUTES – ATTRIBUTION OF JURISDICTION
All disputes to which these General Terms and Conditions may give rise shall fall under the exclusive jurisdiction of the La Roche Sur Yon Trade Court.