TERMS OF SERVICE
PLEASE CAREFULLY READ THESE CONDITIONS. BY SUBSCRIBING TO THE SERVICES OR BY ACCESSING OR USING THE WEBSITE, THE APPS, YOU AGREE THAT YOU HAVE READ AND AGREE, WITHOUT RESERVATIONS, TO BE BOUND BY THE LATEST VERSION OF THIS AGREEMENT.
1 TERMS & CONDITIONS
(1) CONTEXEO S.A.S. doing business as MAPWIZE, a French corporation, identification no. 802 884 338 0001 - registered office 165 Avenue de Bretagne 59000 Lille France - EU VAT no. FR 48 802 884 338 - represented by Mederic Morel as CEO (hereinafter “CONTEXEO”)
(2) the “CUSTOMER”.
1.2 Specific conditions defined for the CUSTOMER
SaaS Service availability rate: Ninety-nine point five (99.9) % per year.
· CUSTOMER Administrator (access to the software back office for software configuration + access control management of the different Users)
· Any natural person (employee) and/or legal entity (company belonging to the CUSTOMER’s corporate group, service provider, authorized representative or customer/prospect of the CUSTOMER) authorized by the CUSTOMER to use the SaaS Service in accordance with the Agreement.
1.3 Platform identification
Contexeo uses several platform operators:
- MICROSOFT AZURE
o 37/45 QUAI DU PRÉSIDENT ROOSEVELT 92130 ISSY-LES-MOULINEAUX
- HEROKU (A Salesforce Company)
o SFDC Ireland Ltd, The Atrium, Sandyford Business Park, Dublin 18
1.4 Platform and mobile application to access the SaaS service
Access URL to the Platform:
Browsers for which SaaS service is optimized: Google Chrome, Mozilla Firefox, Microsoft Edge
Mobile application to use the SaaS Service: Yes
Mobile application operating system: Mapwize application is available for iOS and android
1.5 Assistance / Support
Opening hours of support for the Administrator:
· 9:00am to 5:00pm CET, French working days
· By email, in French or English at email@example.com
2.1 CONTEXEO has designed and developed a standard and customizable software application (the “Software”), accessible online, that allows the import, management and distribution of indoor building floorplans.
2.2 The CUSTOMER wishes to use the Online Software for the benefit of the Users defined in the Special Terms and Conditions and, in general, to benefit from the services offered by CONTEXEO under the following conditions.
2.4 CONTEXEO reminds the CUSTOMER (i) that CONTEXEO’s information duty does not extend to the value assessment of the SaaS Service (art. 1112-1 Civil Code) that CONTEXEO commits to provide to the CUSTOMER and (ii) that any CUSTOMER inaccurate economic assessment of the SaaS Service, prior to the signature of the Agreement, is not a cause of nullity of the Agreement (art. 1136 Civil Code).
2.5 CONTEXEO draws the CUSTOMER’s attention to the fact that the SaaS service offered by CONTEXEO is a standard service designed for companies of different sizes operating in different lines of business. It is therefore the CUSTOMER’s responsibility, prior to signing the Agreement, to (i) verify that the SaaS Service suits the definition of their needs and (ii) ensure that the SaaS Service is dimensioned in such a way as to be able to suit the CUSTOMER’s professional objectives that CONTEXEO would not be aware of.
In addition to the terms defined as needs in the Agreement, words of this Agreement with the first letter in capital letters have the following meanings.
Refers to the User designated by the CUSTOMER to centralize communication between the CUSTOMER and CONTEXEO and manage the operational aspects of the implementation of the SaaS Service by the CUSTOMER.
Refers to any SaaS service malfunction/issue specifically related to a problem affecting the Software. A “Blocking issue” is deemed to be a Bug that completely prevents the use of the Software by the CUSTOMER. A “Major issue” is a Bug that substantially degrades or restricts the performance and/or one or more major software features.
Refers to the stipulations signed by the CUSTOMER (i) of the Special terms & Conditions and (ii) of the General terms & Conditions, as well as any amendment to supplement, modify or replace them, the preamble and the appendices being an entire part of it. In the event of any conflict between the terms of the Special Conditions and those of the General terms & Conditions, the provisions of the Special terms & Conditions shall prevail (Art. 1119 para. 3 Civil Code). The parties recognize that the Agreement is synallagmatic (art. 1106 Civil Code), on a fee-for-service basis (art. 1107 Civil Code) and to be executed successively (art. 1111-1 Civil Code).
Refers to all documents and data (including personal data) and more generally any digital information of the CUSTOMER processed by the Software through the SaaS Service.
3.5 Initial Term
Refers to the initial, firm and fixed duration of service provided of the SaaS Service by CONTEXEO for the benefit of the CUSTOMER, starting from the Production Start. The conditions for the extension / renewal / tacit renewal of the Initial Term are set out in Article 7 “Duration of the Agreement”. During the Initial Term and any extension / renewal / tacit renewal of the Agreement, the rights and obligations of the parties, including their respective guarantees, remain the same as those of the Initial Term, unless expressly and specifically provided otherwise in the Agreement.
Refers to the computer program modules and features that enable CONTEXEO to provide the CUSTOMER with the SaaS Service. A feature is part of a module and responds to the specific uses of a module, the Software is composed of several functional modules. In the event of the CUSTOMER proposing optional modules, the modules composing the Software, selected by the CUSTOMER, are described in the Special Terms & Conditions. The main functional characteristics of the Software are defined in the Appendix “Main Software Module / Feature List”. The Software is only remotely accessible, by Users connecting to the Platform. The Software includes the back-office module allowing the Administrator to access the SaaS Service setting functions.
Refers to the service of corrective maintenance of the Software and assistance/support to use the SaaS Service. The amount of this service is included in the SaaS license fee. CONTEXEO’s commitments for this service are defined in the Appendix “Maintenance / Assistance / Support”.
3.8 Technical Implementation
Refers to the Production Preparation Phase of the SaaS Service, which allows CONTEXEO to prepare an instance of the Software specifically for the CUSTOMER and to size the SaaS Service to the extent described in the Special Conditions. Technical Implementation costs are not included in the SaaS license fee amount and are payable in addition, even if the Agreement is terminated during the trial period defined in the Special Terms and Conditions.
3.9 Production launch
Refers to the date fixed in the Special Terms and Conditions from which the SaaS Service is accessible online, under real conditions of use, by the CUSTOMER’s Users.
Refers to all the hardware and software of the data center where the Software is installed and from which the SaaS Service is provided to the CUSTOMER. Third party providers operating CONTEXEO’s Platform as subcontractors are identified in the Special Terms & Conditions.
3.11 SaaS License fee
Refers to the amount owed by the CUSTOMER to CONTEXEO in return (art. 1107 Civil Code) for the right to use the SaaS Service, excluding additional services identified as such in the Special Terms & Conditions (Technical Implementation phase, training, specific developments, etc.). The payment Term of the SaaS license fees are set in the Special Terms and Conditions.
3.12 SaaS service
Refers to the right for the CUSTOMER, for the Initial Term fixed in the Special Terms & Conditions:
(i) to access the Platform to use the Software,
(ii) to benefit from the services of Software hosting and backup of the CUSTOMER’s data on the Platform,
(iii) to benefit from the maintenance services described in the Appendix “Maintenance / Assistance / Support”.
The services included in the definition of SaaS service form an indivisible whole for CONTEXEO.
3.13 User (s)
The precise definition and number of Users are set out in the Special Terms and Conditions. The CUSTOMER alone grants the rights and authorizations of each User, under their own responsibility via the Software’s back office accessible by the Administrator only. It is the CUSTOMER’s responsibility to ensure the training of Users before using the SaaS Service under actual operating conditions.
4 Purpose of the agreement – Quality of Service
4.1 The purpose of the Agreement is to define the terms and conditions under which CONTEXEO provides, through the use of the Software, the SaaS Service to the CUSTOMER in return for payment of the SaaS License fee set out in the Special Terms and Conditions. The use of the SaaS Service is granted to the CUSTOMER for the sole benefit of their Users, for the sole purpose of their business, and not to process data for the benefit of third parties, free of charge or against payment.
4.2 CONTEXEO’s policy on the protection of CUSTOMER personal data is set out in the APPENDIX “CUSTOMER Personal Data protection”.
4.3 The list of services composing the SaaS Service, the availability rate of the SaaS Service fixed in the Special Terms & Conditions and the list of modules composing the Software selected by the CUSTOMER in the Special Terms & Conditions:
(i) together, explicitly and exhaustively describe the essential attributes of the SaaS Service provided by CONTEXEO (art. 1133 Civil Code), excluding any implicit qualities that the CUSTOMER may expect from and that CONTEXEO cannot legitimately know, and
(ii) together, make CONTEXEO’s SaaS Service of a quality consistent with the legitimate expectations of the CUSTOMER and CONTEXEO, taking into account the nature of the services constituting together and indivisibly CONTEXEO’s SaaS Service, the uses and the amount of compensation that the CUSTOMER commits to pay CONTEXEO to use the SaaS Service (art. 1166 Civil Code).
4.5 Prior to the SaaS service production launch, CONTEXEO commits to provide Technical Implementation Services, which are invoiced separately and are payable by the CUSTOMER, in accordance with the terms set out in the Special Terms and Conditions, even if the Agreement is terminated during the trial period. Prior completion of Technical Implementation services is necessary for the SaaS Service production launch.
4.6 Upon CUSTOMER request, CONTEXEO may provide additional services (guidance, support, setup, training, etc.), other than those explicitly included in the definition of the SaaS Service. Any additional services to be performed by CONTEXEO must be subject to a quote from CONTEXEO. The CUSTOMER must express written acceptance before any work is carried out by CONTEXEO. These services are billed separately, in addition to the SaaS License fee.
5 Strict limitations of the Software and SaaS Service use
5.1 The Agreement includes the right to use the Software only for the Initial Term set forth in the Special Terms and Conditions, on a non-exclusive and non-transferable basis, and may not be sublicensed, transferred or made available to any third party, whether free of charge or against payment, under any practical or legal terms, except for the benefit of another company of the CUSTOMER’s corporate group in accordance with Article 15.8 “Agreement cession”. The SaaS Service and the Software are intended for the CUSTOMER:
(i) only with remote access to the Platform chosen by CONTEXEO, in compliance with the rules of identification and allocation of the access rights by the Users selected by the CUSTOMER via the software’s back office;
(ii) only for the processing operations of CUSTOMER’s Business Data by Users under the limited conditions defined in this article and in the Special Terms & Conditions.
5.2 The strict respect by the CUSTOMER of CONTEXEO’s intellectual property rights and the conditions under which CONTEXEO grants the CUSTOMER the right to use the Software to benefit from the SaaS Service together constitute an explicit essential attribute of the CUSTOMER’s provision expected by CONTEXEO (art. 1133 Civil Code). Any modification or attempt by the CUSTOMER to modify the terms and conditions of access or use of the Software or SaaS Service (access to the SaaS Service by any means not authorized or not provided for by CONTEXEO, unauthorized increase of the number of Users, etc.) or any use of the Software or SaaS Service under conditions undefined in the Agreement, without the prior written consent of CONTEXEO, represents a considerable danger to CONTEXEO’s sustainability, intellectual property of the Software constituting an essential asset. Consequently, any modification or attempt to modify the conditions of use of the SaaS Service, the Software or the Platform, whether voluntary or not, by the CUSTOMER, is deemed to constitute a sufficiently serious CUSTOMER breach enabling CONTEXEO to use their right to immediately suspend the SaaS Service (art. 1219 Civil Code) from the date CONTEXEO notifies the CUSTOMER, including e-mails confirmed by a notification (Article 15.9 “Notification”).
5.3 The login credentials of the CUSTOMER’s Users to the Software are personal and confidential. They are allocated by the CUSTOMER’s Administrator under the responsibility of the CUSTOMER. They may only be changed by the CUSTOMER or, for computer security reasons, at CONTEXEO’s initiative, provided that the CUSTOMER is immediately notified. The CUSTOMER agrees to take all necessary measures to keep Users' login details secret and not to disclose them in any form whatsoever. The CUSTOMER is solely responsible for the use of the login credentials and is solely responsible for their management through the software’s back office. In general, the CUSTOMER assumes responsibility for the physical and logical security of access terminals to the Software (computers, smartphones, tablets, etc.). In the event that the CUSTOMER is aware that an unauthorized person would have access to the Software, the CUSTOMER agrees to immediately inform CONTEXEO. In the event of loss, theft or usurpation of a User login credential, the CUSTOMER will use the Software’s back office feature enabling to retrieve or create new ones.
5.4 CONTEXEO reserves the right to collect data, exclusively anonymous and statistical, relating to the use of the SaaS Service by Users of the CUSTOMER and to verify compliance with Agreement provisions relating to the number and user profile of Authorized Users or to ensure the security of the information system (Software + Platform). The CUSTOMER agrees that CONTEXEO may use the CUSTOMER’s Data solely for the purpose of improving the operation of the Software. CONTEXEO guarantees that the result of the CUSTOMER’s data processing does not lead to any recording of the CUSTOMER’s data outside the CUSTOMER’s specific database. Any other use of the CUSTOMER’s database and data by CONTEXEO must be subject to prior written authorization by the CUSTOMER.
5.5 It is the CUSTOMER’s responsibility to ensure that none of the Users or buildings managed by the PLATFORM is located on the land of a country subject to an official embargo or export ban and/or use ban adopted by the United States of America, the European Union or France. The CUSTOMER agrees to fully and unreservedly identify and guarantee the consequences, in particular financial consequences (fines, penalties, compensations, etc.) of such negligence which would be charged to CONTEXEO.
5.6 For the entire Initial Term of the Agreement and for a period of eighteen (18) months following the effective termination of use of the SaaS Service by the CUSTOMER, the CUSTOMER shall not develop and/or commercialize, for their own benefit or for the benefit of third parties, any software or service that is in direct competition with the Software and/or the SaaS Service. The present CUSTOMER non-competition commitment constitutes (i) decisive information (art. 1112-1 Civil Code) of CONTEXEO’s consent to contract with the CUSTOMER and/or (ii) an explicit essential attribute (art. 1133 Civil Code) of the CUSTOMER’s provision expected by CONTEXEO. The CUSTOMER acknowledges that any failure to comply with the non-competition commitment is likely to cause CONTEXEO an extremely serious and manifestly unlawful disturbance, which could jeopardize the economic viability and profitability of CONTEXEO’s business, and would likely lead to the Agreement nullity (Article 1137 Civil Code).
6 Trial period – Test – Acceptance – Setup
6.1 It is the CUSTOMER’s responsibility to test the SaaS Service before the target production start date set in the Special Terms and Conditions. In the absence of any written and documented reservations prior to production, the SaaS Service is deemed to have been received without reservation from the moment it is being used, even partially, by the CUSTOMER under real operating conditions. As a determining factor for the proper functioning of the SaaS Service, the configuration of the Software prior to the Production launch of the SaaS Service, accessible via the software’s back office, must be ensured by the CUSTOMER with the assistance of CONTEXEO if need be. Any subsequent modification of the SaaS service or Software’s parameters of use or functioning will be the sole responsibility of the CUSTOMER.
6.2 If a trial period is provided for in the Special Terms and Conditions of the SaaS Service, the CUSTOMER shall use the SaaS Service under actual operating conditions during this period, which will constitute the SaaS Service test period. Except in the event of termination of the Agreement notified by the CUSTOMER during this trial period under the conditions of the article “Termination”, or in the absence of written and documented reservations relating to the SaaS Service during this same period, the SaaS Service shall be deemed to have been fully validated by the CUSTOMER on the Production Start Date. After the Production Start Date, any reservation relating to the Software or SaaS Service will be treated by CONTEXEO as part of the services described in the Appendix “Maintenance / Assistance / Support”.
7 Agreement duration
7.1 Initial Term
7.1.1 The Agreement is formed and takes effect upon receipt by CONTEXEO of the CUSTOMER’s acceptance of CONTEXEO’s offer in the exact terms of CONTEXEO’s offer (art. 1118 Civil Code), constituted of the whole signed by the CUSTOMER which includes (i) the General Terms and Conditions and (ii) the Special Terms and Conditions and which together and indivisibly constitute the Agreement. CONTEXEO reserves the right to interrupt at any time the performance of the services until the Agreement is accepted in full by the CUSTOMER. Therefore, in the absence of an Agreement duly signed by the CUSTOMER, any beginning of execution by CONTEXEO shall not be considered as a demonstration of willingness to form an Agreement within the meaning of article 1103 Civil Code.
7.1.2 The SaaS Service is concluded for the Initial Term set out in the Special Terms and Conditions. As a result, no termination “for convenience” is possible for the CUSTOMER during the Initial Term, except in the limited conditions of the article “Termination”.
7.1.3 If the CUSTOMER does not wish for the Agreement to be renewed (art. 1214 Civil Code) or tacitly renewed (art. 1215 Civil Code) at the end of the Initial Term, it is incumbent on the CUSTOMER to stop using the SaaS Service completely as soon as the Initial Term expires and to prove this termination to CONTEXEO.
7 Tacit renewal
7.2.1 At the end of the Initial Term fixed in the Special Terms and Conditions, if the CUSTOMER continues to use the SaaS Service and CONTEXEO does not notify the CUSTOMER of the new amount of the SaaS License fee:
(i) the parties agree to enter into an Extension Amendment (Article “Amendment”) prior to the expiration date of the Initial Term or retroactively, in which case the Agreement is extended (Article 1213 of the Civil Code) under fixed price and duration conditions set out in the Extension Amendment;
(ii) the Agreement is tacitly renewed (art. 1215 Civil Code) with identical content, for an indefinite period of time and the CUSTOMER then agrees to pay the amount of the SaaS License fee, which is then (a) automatically indexed according to the provisions of the article “Automatic Indexation” on the effective date of the tacit renewal and (b) payable quarterly, in advance (term to maturity), any quarter commenced being due, pro rata by quarter of the SaaS license fee amount indicated in the Special Terms and Conditions governing the Initial Term. SaaS License fee is then payable until the effective date of termination.
7.2.2 If the Agreement has been tacitly renewed (art. 1215 Civil Code), either party may terminate it at any time, subject to a minimum of thirty (30) days' notice before the end of the current quarter of renewal.
7.3 Renewal of the Agreement
7.3.1 If CONTEXEO notifies the CUSTOMER of the new SaaS License fee amount to be applied after the end of the Initial Term indicated in the Special Terms and Conditions:
(i) the parties agree to enter into an Extension Amendment (Art. 15.10 “Amendment”) under the conditions set out in Article 7.2.1 (i);
(ii) the Agreement is renewed for an unlimited period (art. 1214 Civil Code) and the CUSTOMER then agrees to pay the new amount of the SaaS license fee quarterly, in advance (term to maturity), any quarter commencing being due. SaaS License fee is then payable until the effective date of termination, with any quarter commencing being due. If the CUSTOMER considers that CONTEXEO has not justified the increase in the SaaS License or that CONTEXEO is abusing their right to unilaterally determine the new amount of the SaaS License, it is their responsibility to apply either Article 1164 of the Civil Code or Article 1165 of the Civil Code.
7.3.2 If the Agreement has been renewed (art. 1214 Civil Code) for an unlimited period, either party may terminate the Agreement at any time, subject to prior notice (art. 1211 Civil Code) for a minimum period of ninety (30) days.
8 SaaS Service Availability
8.1 CONTEXEO guarantees, as part of a performance obligation, the availability rate of the SaaS Service as defined in the Special Terms and Conditions, from the time the SaaS Service is put into production and during the Initial Term set out in the Special Terms and Conditions. CONTEXEO’s compliance with the availability rate of the SaaS Service is a quality of CONTEXEO’s service in accordance with the legitimate expectations of the parties (art. 1166 Civil Code) based on the nature, uses and amount of compensation the CUSTOMER agrees to pay CONTEXEO to use the SaaS Service.
8.2 CONTEXEO commits to fulfil all other obligations under a on a best effort basis. CONTEXEO’s subcontracted services (such as hosting) remain the sole responsibility of CONTEXEO towards the CUSTOMER.
8.3 The availability rate of the SaaS Service is calculated “from Mapwize’s Platform” and measured by a service provider, subcontractor of CONTEXEO, whose periodic reports are accessible to the CUSTOMER on the software’s back office. The duration of the unavailability of the SaaS Service due to the correction of Blocking or Major software/platform issues according to the terms and conditions set out in the Annex “Maintenance / Assistance / Support” is taken into account in the calculation of the rate of availability agreed by the parties in the Special Terms and Conditions. By express Agreement, the availability rate of the SaaS Service does not take into account (i) any interruptions in the operation of the Internet for which CONTEXEO cannot in any way be held responsible, (ii) any scheduled maintenance operations of the Software or Platform of which CUSTOMER is informed by CONTEXEO with at least seven (7) days' notice, (iii) any operations related to the software upgrades scheduled by CONTEXEO.
8.4 CONTEXEO reminds the CUSTOMER (i) that providing a link between the Platform and the CUSTOMER’s information system is not included in the services provided by CONTEXEO under the SaaS Service and (ii) that it is the CUSTOMER’s responsibility to have a connection to an electronic communication network which effectively enables to receive and transmit Data from the Platform.
8.5 CONTEXEO REMINDS THE CUSTOMER THAT THE INTERNET, WHICH HAS ALLOWED CONTEXEO TO PROVIDE THE SAAS SERVICE, IS AN OPEN AND INFORMAL NETWORK, COMPOSED OF THE INTERCONNECTION, AT AN INTERNATIONAL SCALE, OF INDEPENDENT COMPUTER NETWORKS USING THE TCP/IP PROTOCOL. CONSEQUENTLY, CONTEXEO MAY NOT GUARANTEE (i) ANY AVAILABILITY OF THE SAAS SERVICE WHICH TAKES ACCOUNT OF THE OPERATION OF THE INTERNET, (ii) OR THAT THE USE OF THE SAAS SERVICE WILL BE UNINTERRUPTED.
9 Penalty for non-compliance with SaaS SERVICE availability rate
9.1 CONTEXEO’s failure to comply with the availability rate set out in the Specific Conditions entails CONTEXEO’s obligation to compensate the loss suffered by the CUSTOMER and to pay damages (art. 1231-5 Civil Code) in the form of a penalty.
9.2 The penalty is calculated according to the formula P = M x R in which:
P = penalty amount;
M = consecutive minutes of SaaS Service unavailability;
R = Amount of SaaS License fee over twelve (12) months in minutes (1 month is deemed to include 30 days and 1 year 360 days) multiplied by two (2).
9.3 The penalty is due only after the CUSTOMER has given CONTEXEO a formal notice, and subject to the CUSTOMER’s proof of SaaS service unavailability during the alleged duration.
9.4 CONTEXEO commits to pay the amount of the penalty within thirty (30) days after receipt of the CUSTOMER’s invoice, without the CUSTOMER being able to deduce the amounts owed to CONTEXEO for the SaaS License fee from the amount of the penalty. The penalty is not subject to VAT (BOI-TVA-base-10-10-30-30-20140115 n°70). In accordance with Article 1231-5 of the Civil Code, CONTEXEO’s payment of the penalty is exclusive of any other claim for damages from the CUSTOMER for the same loss and does not entitle the CUSTOMER to terminate the SaaS Service (except and only in the event of the following paragraph), since the CUSTOMER’s loss has been made good by the payment of damages. The payment of the penalty by CONTEXEO constitutes recognition and acceptance by the parties of (i) the incomplete performance of the SaaS Service already rendered during the period in question (art. 1223 Civil Code) and (ii) the proportional price reduction of the SaaS Service over the period in question.
9.5 In such cases, the total cumulative amount of penalties to be paid by CONTEXEO over the last twelve (12) months of the CUSTOMER’s actual use of the SaaS Service after Production launch is limited to a maximum of ten (10) % of the total amount, excluding VAT, of the SaaS License fee actually paid by the CUSTOMER. In the event that the above ceiling is reached, the most diligent of the parties may give notice of termination of the Agreement effective within thirty (30) days of notification to that effect.
10 Information duty and obligation to cooperate
10.2 Each party commits to appoint an Administrator to ensure the Agreement execution operational monitoring with the other party. This representative must be endowed with the necessary experience, competence, authority and means to carry out his mission.
11 Financial Conditions
11.1 General Provisions
11.1.1 The amount and terms of payment of (i) the costs of the Technical Implementation and (ii) the SaaS License fee and (iii) any other amount due by the CUSTOMER for additional services are detailed in the Special Terms and Conditions and do not include taxes. The CUSTOMER is solely responsible for the payment of (i) the costs of the Technical Implementation, (ii) the SaaS License fee and (iii) any other amount due by the CUSTOMER for additional services, and for the payment of any tax related to the execution of the Agreement. As sole signatory of the Agreement, the CUSTOMER is solely responsible for the amounts due for the use of the SaaS Service, whether by their employees or employees of the companies of the corporate group, their service providers and subcontractors or their CUSTOMERs/prospects. Unless otherwise specified in the Special Terms and Conditions, CONTEXEO’s invoices are generally payable within thirty (30) days of the invoice date.
11.1.2 The SaaS License fee is the compensation that the CUSTOMER agrees to pay CONTEXEO to benefit from the SaaS Service. The CUSTOMER acknowledges that the amount of the SaaS License fee fixed in the Special Terms and Conditions has not been set unilaterally by CONTEXEO without the CUSTOMER’s consent (arts. 1164 and 1165[new] Civil Code). By mutual Agreement between the parties, the amount of the SaaS License fee has been determined by the balance between (i) the plurality of services included in the SaaS Service, (ii) the essential and explicit qualities of the SaaS Service (art. 1133 Civil Code), (iii) the conformity of the SaaS Service quality with the legitimate expectations of the CUSTOMER and CONTEXEO (art. 1166 Civil Code).
11.1.3 CONTEXEO offers various options to the CUSTOMER, including free and paid plans, with or without a fixed commitment period. CUSTOMER can find these options and the relevant pricing on the MAPWIZE website. The pricing of these plans is available in Euros and US Dollars depending on the CUSTOMER location.
11.1.4 MAPWIZE service are reserved exclusively for a professional use, and the terms of the EU Directive 2011/83/UE of the European Parliament and of the Council of 8 October 2008 on consumer rights are not applicable.
11.1.5 Free plans are available to any professional CUSTOMER and are subject to use restrictions (number of places, number of venues, etc.).
11.1.6 Paid plans without any fixed-term commitment are available to any professional CUSTOMER and have a lower use restriction limits than the free subscriptions. For these plans, CUSTOMER subscription shall be due and payable each month in advance from the date of subscription.
11.2 Automatic indexation
11.2.1 Prices, including the SaaS License fee, are flat during the Initial Term set out in the Special Terms and Conditions only.
11.2.2 In accordance with Articles L. 112-1 and L. 112-2 of the Monetary and Financial Code, if the Agreement is renewed (art. 1214 Civil Code) or tacitly renewed or at the end of the Initial Term (art. 1215 Civil Code) with identical content and for an indefinite period of time, the amount of the SaaS License fee is automatically indexed each year on the anniversary date of the Initial Term set out in the Special Terms & Conditions, according to the indexation formula set out in this article.
11.2.3 The indexing formula is P1 = P0 x (S1 / S0) in which:
P1 = revised price;
P0 = original Agreement License fee amount price or last revised License fee amount by mutual Agreement;
S0 = SYNTEC index of reference on the starting date of the Initial Term set in the Special Terms and Conditions or on the last revision of the SaaS License fee by mutual Agreement;
S1 = last index published on the implementation date of the indexation.
11.2.4 By mutual Agreement of the parties, the indexation of the SaaS License fee shall not be deemed to constitute a unilateral determination of the price by CONTEXEO and therefore precludes any implementation of Articles 1164 and 1165 Civil Code).
11.2.5 When the price of all or part of the SaaS Service or an additional or specific service at CONTEXEO’s expense is determined by reference to an index that does not exist or has ceased to exist or to be accessible, it shall be replaced by the index that is closest to it (art. 1167 Civil Code), by mutual Agreement between the parties or, if not, by court order.
11.3 Late payment and suspension of performance
11.3.1 The CUSTOMER’s compliance with the terms of payment of the SaaS License fee constitutes an explicit essential attribute of the CUSTOMER’s provision expected by CONTEXEO (art. 1133 Civil Code). Any delay in payment by the CUSTOMER of more than thirty (7) days after the agreed due date of the agreement and after reminder of CONTEXEO by email to the CUSTOMER shall be deemed to constitute a sufficiently serious nonperformance by the CUSTOMER (art. 1219 Civil Code) to entail the right for CONTEXEO to immediately suspend the SaaS Service (exception of non-performance principle), with simultaneous information of the CUSTOMER by CONTEXEO, without any other notice or formality of any kind.
11.3.2 In accordance with Article L. 441-6 of the Commercial Code, in the event of non-payment of all or part of the SaaS License fee (or any other amount due by the CUSTOMER under the Agreement) within the contractual deadlines, (i) any unpaid amount will automatically generate day-to-day default interest until the date of full payment of CONTEXEO’s debt in principal, interest, fees and incidental charges, at a rate equal to FIVE (5) times the legal interest rate without necessary reminder and without prejudice to the damages that CONTEXEO reserves the right to seek in court; (ii) in accordance with section L.441-6 of the commercial code, a lump-sum compensation for recovery costs, the amount of which is fixed in Article D. 441-5 of the Commercial Code, shall be payable by operation of law for each invoice concerned. In accordance with Article L. 441-6 of the Commercial Code, the actual costs of collection, justified by invoice, of unpaid amounts by the CUSTOMER (legal costs, disbursements and attorney and bailiff’s fees) are deemed to be a consequence to CONTEXEO’s claim and are entirely at the CUSTOMER’s expense, until total debt clearance.
11.3.3 In the event of termination of the Agreement (i) by CONTEXEO for non-payment of the CUSTOMER or (ii) by the CUSTOMER without legitimate reason justifying early termination within the meaning of Article 13 “Termination”, the total amount of SaaS License fee before tax due by the CUSTOMER to CONTEXEO over the term of the Agreement not yet executed shall be immediately payable as provisional compensation for the loss suffered by CONTEXEO, notwithstanding the right of CONTEXEO to seek compensation for the entire loss. The notification (i) by CONTEXEO of the termination of the Agreement for non-payment by the CUSTOMER or (ii) the termination of the Agreement by the CUSTOMER without legitimate cause justifying an early termination within the meaning of Article 13 “Termination” shall render certain, liquid and due the total amount of SaaS license fee, before tax, remaining to be paid over the term of the Agreement that has not yet been executed. The CUSTOMER’s non-payment of the provisional compensation within sixty (60) days after the termination notice shall constitute for CONTEXEO a clear unlawful disorder.
11.4 Unpredictable Economic Circumstances
In accordance with Article 1195 of the Civil Code, CONTEXEO declares not to accept (i) the risk of fluctuation with the cost of hosting and storing the Software and/or the CUSTOMER’s Data invoiced to CONTEXEO by the Platform which subcontractors these services for CONTEXEO, nor (ii) the risk of fluctuation in the increase in the services related to the encryption of the CUSTOMER’s Data or to the connection of the CUSTOMER’s information system to CONTEXEO’s platform. Consequently, any increase of more than QUINZE (15) % in any of these specific services notified by CONTEXEO to the CUSTOMER is deemed to constitute an unforeseeable economic circumstance making the provision of the SaaS Service excessively expensive for CONTEXEO. In this circumstance, the parties agree to renegotiate the Agreement in good faith. Failing to reach a written Agreement by Amendment (Article 15.10 “Amendment”) within thirty (30) days after the notification referred to above, either party may notify the termination of the Agreement, without compensation of any kind to either party. Prior to the Agreement on the new price or termination of the Agreement under the foregoing conditions, CONTEXEO shall be bound to execute the Agreement, on the financial terms and in accordance with the conditions agreed with the CUSTOMER.
11.5 Incomplete performance of services and price reduction
11.5.1 In the event that CONTEXEO fails to fulfil the Agreement obligations (art. 1223 Civil Code) (i) which would not be punished by penalties and (ii) for which the CUSTOMER has begun to pay the price, the CUSTOMER may, after notification to CONTEXEO, request a proportional reduction in the price of the SaaS License fee. In this case, the CUSTOMER and CONTEXEO agree to negotiate in good faith a new price which must, in order to be applicable, be the subject of an Amendment (Article 15.10 “Amendment”) concluded within thirty (30) days after CUSTOMER notification. In the absence of Agreement by Amendment within this period, the Agreement will be terminated by notification at the initiative of any of the parties under the conditions of Article 13 “Termination”.
11.5.2 If the CUSTOMER has not paid for the incomplete services (even for services actually invoiced but not actually received by CONTEXEO), upon receipt of the CUSTOMER’s formal notice and by express derogation from Article 1223 para. 2. of the Civil Code, CONTEXEO will immediately inform the CUSTOMER of the decision to interrupt the SaaS Service, such non-payment being deemed to constitute a sufficiently serious nonperformance by the CUSTOMER (art. 1219 Civil Code).
12 Liability and Insurance
12.1 CONTEXEO reminds the CUSTOMER that the Software and SaaS Service allow the CUSTOMER to improve the relevance or efficiency of their business, but do not constitute a service likely to impact the production of products or services of the CUSTOMER. CONTEXEO is liable for immediate, direct (art. 1231-4 Civil Code) and foreseeable damages (art. 1231-3 Civil Code) caused by a partial or total improper execution of the Agreement proven by the CUSTOMER. CONTEXEO shall not be liable in any way for indirect, unforeseeable or consequential damages caused by a partial or total improper execution of the Agreement, including the cost of using software or providing a substitute service for the Software or SaaS Service.
12.2 In any event, the total amount of CONTEXEO’s financial liability is limited to the amount of the SaaS License fees paid by the CUSTOMER in the last twelve (12) months of actual use of the SaaS Service (art. 1231-3 Civil Code), except in the event of (i) bodily injury, (ii) gross negligence or fraudulent misconduct on the part of CONTEXEO (art. 1231-3 Civil Code), (iii) infringement by CONTEXEO of the intellectual property rights of a third party or (iv) non-compliance by CONTEXEO with their obligations under the criminal law of the GDPR. Each party acknowledges that if one of them uses or discloses confidential information (within the meaning of the article “Confidentiality”) of the other party without authorization, this party is liable under the conditions of common law (art. 1112-2 Civil Code). The CUSTOMER may only hold CONTEXEO liable for one (1) year from the occurrence of the breach in question.
12.3 In accordance with Article 32 of Law No. 2004-575 of June 21 st, 2004 on the Confidence in the Digital Economy, and in the event that CONTEXEO has integrated into the SaaS Service an encryption service using an original software providing a single confidentiality function that have never been previously declared to the Prime Minister, CONTEXEO commits to declare to the Prime Minister in advance this “encryption service provision”. “Unless proven that CONTEXEO has not committed any intentional fault or negligence” in the provision of this specific service, CONTEXEO is liable “As part of their services, notwithstanding any contractual stipulation to the contrary, for the prejudice caused to the persons entrusting them with the management of their secret conventions in the event of a violation of the integrity, confidentiality or availability of the data transformed using these conventions”. Compensation for any loss suffered by the CUSTOMER as a result of this specific liability of CONTEXEO is included in the amount set out in Article 12.2. in application of the law n°2015-912 “Information” of July 24th 2015 and in the event CONTEXEO has encrypted all or part of the CUSTOMER’s Personal Data pursuant to the Agreement, CONTEXEO reminds the CUSTOMER that, under penalty of criminal sanctions,"[providers] providing cryptographic services for the purpose of ensuring a confidentiality function shall be obliged to hand over to the agents [specialized intelligence services] within 72 hours of their request, the Agreements enabling the decryption of transformed data by means of the services they have provided. Officers of [specialized intelligence services] may require the service providers [of cryptographic services] to implement these Agreements themselves within 72 hours unless [the service provider of cryptographic services] proves that it is unable to comply with such requisitions.”
12.4 CONTEXEO declares that it holds, with an insurance company known to be solvent, an insurance policy covering the consequences of their operating and professional civil liability which may be incumbent on it for the performance of the Agreement. The payment of the annual insurance premium by CONTEXEO shall take into account the amount of compensation contractually offered by CONTEXEO pursuant to this Article. In the event that the CUSTOMER wishes an additional level of compensation for their losses, CONTEXEO will propose to the CUSTOMER an amendment to their insurance policy and the CUSTOMER will pay the full amount of the premium requested by CONTEXEO’s insurance company to cover the specific risk for which the CUSTOMER has requested coverage.
13.1 Termination during trial period
If a trial period of the SaaS Service is provided for in the Special Terms and Conditions, the CUSTOMER may, at any time during this period and without justification, notify CONTEXEO of the termination of the Agreement. In this case, the SaaS license fees provided for during the trial period as well as the technical implementation costs due by the CUSTOMER to CONTEXEO (i) shall be kept by CONTEXEO and (ii) shall be payable under the conditions set out in the Special Terms and Conditions if these amounts have not already been paid by the CUSTOMER on the date of termination notified by the CUSTOMER, excluding of any other compensation / reimbursement / damages of any kind whatsoever by one party to the benefit of the other.
13.2 Termination for a sufficiently serious breach or failure to comply with an explicit essential attribute
The Agreement shall terminate immediately, as of right if a party fails to remedy either (i) a sufficiently serious breach of any of their contractual obligations (art. 1224 Civil Code) or (ii) an explicit essential attribute of their performance (art. 1133 Civil Code), within thirty (30) days of the other party’s notification of the obligation to terminate such breach.
13.3 Consequences of termination
Termination of the Special Terms and Conditions does not result in the termination of the other Special Terms and Conditions in progress, or those of the General Terms and Conditions, nor does it prevent the parties from entering into other Special Terms and Conditions. Upon the arrival of the Initial Term set forth in the Special Terms and Conditions or the effective date of termination of the Agreement, the CUSTOMER agrees to immediately cease using the SaaS Service and CONTEXEO shall then be entitled to interrupt the SaaS Service provided to the CUSTOMER without any further formality other than the mere acknowledgement of the termination of the Agreement.
13.4 Reversibility and restitution of CUSTOMER’s data
No later than thirty (30) days after the effective date of termination of the Agreement, for any reason whatsoever, CONTEXEO commits to return to the CUSTOMER, free of charge, all of the CUSTOMER’s Data processed by the SaaS Service, without keeping a copy of it of any kind and not to exercise any right of retention over such Data, for any reason whatsoever. The Data is returned free of charge to the CUSTOMER in a standard market format (.xls, csv, etc.) which does not require the use of the Software to be reused. No service other than the full restitution to the CUSTOMER of their Data will be provided by CONTEXEO for the purpose of reversibility, CONTEXEO being under no obligation to ensure any continuity of the service provided through the SaaS Service, this absence of continuity of service constitutes (i) a decisive information for the consent of CONTEXEO (art. 1112-1 Civil Code) to provide the SaaS Service to the CUSTOMER and (ii) an essential attribute of the service (art. 1133 Civil Code) provided by CONTEXEO under the Agreement.
In accordance with article 1230 of the Civil Code, provisions which by their very nature survive the termination of the Initial Term or the termination of the Agreement, whatever the cause and/or basis, survive the termination of an Agreement (including the obligation of confidentiality, non-competition, obligations arising from the GDPR, attribution of jurisdiction, etc.).
14 Guarantees regarding the Software
14.1 CONTEXEO guarantees (i) that the Software is original and (ii) that CONTEXEO holds all intellectual property rights of the Software, except for any modules incorporated into the Software that would benefit from an “Open Source” license or (iii) that CONTEXEO has the right to grant a legitimate license of use to the CUSTOMER on any additional modules of the Software chosen by the CUSTOMER with intellectual property rights held by a third party so that CONTEXEO can rightfully grant the use to the CUSTOMER under the terms of the Agreement.
14.2 During the Initial Term and any extension / renewal / tacit renewal of the Agreement, CONTEXEO guarantees the CUSTOMER against any action or proceeding on the grounds that the Software may infringe the intellectual property rights of a third party. CONTEXEO shall be responsible, at their own expense and at their own discretion, for the defense to be conducted as a result of the action taken against the CUSTOMER by a third party alleging infringement of their rights, owners of the intellectual property rights of each additional module having made a similar commitment to CONTEXEO. CONTEXEO will pay all damages to which the CUSTOMER would be condemned by a court decision having the power of res judicata. CONTEXEO guarantees the CUSTOMER the peaceful enjoyment of the use of the Software (including additional modules), provided that the CUSTOMER notifies CONTEXEO without delay of any threat of action or procedure in this regard, which allows the CUSTOMER to ensure their defense. The CUSTOMER shall collaborate with CONTEXEO in this defense at the expense of CONTEXEO. CONTEXEO will have complete control over civil defense, including the right to appeal, negotiate and reach a settlement within the meaning of Articles 2044 and following of the Civil Code. The CUSTOMER shall provide alone and at their own expense their criminal defense, so as to be able to overturn the presumption of bad faith set out by case law.
14.3 In the event of a civil conviction of CONTEXEO by a court decision having the power of res judicata or in the event of a transaction concluded by CONTEXEO, CONTEXEO may, at their own choice and expense, either (i) (i) obtain for the CUSTOMER the right to continue using the Software (including additional modules) without increasing the amount of the financial compensation payable by the CUSTOMER and without interrupting the use of the Software by the CUSTOMER, possibly by modifying all or part of the Software (and/or an additional module) so that it no longer constitutes infringement of the rights of a third party, or (ii) if the right to continue using the Software (and/or any additional module) cannot be obtained or if the Software (and/or an additional module) cannot be replaced or modified for a reasonable cost so that it no longer constitutes infringement of the rights of a third party, the CUSTOMER shall be notified of the termination of the Agreement and the total amount of the SaaS license fees paid (from the first day of the complaint) by the CUSTOMER to CONTEXEO shall be returned. (1229 Civil Code), notwithstanding the CUSTOMER’s right to seek judicial compensation for their entire loss.
15 General provisions
15.1 Audit at the CUSTOMER’s request
15.1.1 The CUSTOMER may, if they wish so, to carry out an audit, not more than one (1) time per calendar year and at their own expense, directly or through any external independent company, not in direct competition with CONTEXEO, in order to ensure CONTEXEO’s compliance with the obligations. The auditor must first sign a confidentiality Agreement with the CUSTOMER with terms similar to those of the article “Confidentiality”. At CONTEXEO’s first request, the CUSTOMER shall send CONTEXEO a true copy of the auditor’s confidentiality commitment.
15.1.2 The CUSTOMER shall inform CONTEXEO in advance, within a reasonable time, of any audit request, the date of the audit and the name and references of the persons in charge of the audit. CONTEXEO will not be able to refuse without legitimate reason the persons designated to carry out the audit.
15.1.3 CONTEXEO will cooperate in good faith with the auditor and will provide the auditor with all documents or necessary information relevant for the audit and will allow the auditor access to the appropriate parts of the Software and/or the CUSTOMER’s Data. Logical connections to access the CUSTOMER’s Data will be made by CONTEXEO upon request and under the control of the auditor.
15.1.4 The right of access and audit of the Platform shall only be possible with the Agreement and the price conditions of the Platform, which shall be charged exclusively to the CUSTOMER. At CONTEXEO’s request, the Platform access processes will be communicated by the Platform to the CUSTOMER who agrees to strictly respect them.
15.1.5 A full copy of the audit report will be sent free of charge by the auditors to CONTEXEO, so that CONTEXEO can make any comments or remarks in writing to the CUSTOMER. The audit report is confidential information within the meaning of Article “Confidentiality”.
15.1.6 The time spent by CONTEXEO, as well as machine time for audit purposes, shall be borne by CONTEXEO up to a maximum of eight (8) working hours per year. Any CONTEXEO service beyond this period will be invoiced to the CUSTOMER for the time spent, according to the hourly rate in force and the profile of CONTEXEO’s collaborators.
15.2.1 The following are considered confidential: (i) information relating to the Agreement and the stipulations contained therein, and the CUSTOMER’s data processed by the SaaS Service, as well as (ii) in general and without this list being limitative, to the parties' business projects and their present and future activities, their employees and know-how, whether this information is obtained directly or indirectly from the other party, their employees or those of the companies of their group. The confidential information referred to in (ii) above shall be provided “as is”, without guarantees of any kind, express or implied, as to their accuracy or integrity.
15.2.2 Do not constitute confidential information of the other party:
(i) publicly available information without breach of Agreement by the party disclosing or using it;
(ii) information legitimately held by one party prior to their use/disclosure by the other;
(iii) information legitimately obtained from a third party authorized to transfer or disclose such information, without breach of an obligation of confidentiality or professional secrecy.
15.2.3 Each party agrees (i) not to use confidential information, for any reason whatsoever, except in fulfillment of the rights and obligations arising from the Agreement, (ii) not to disclose confidential information to anyone by any means whatsoever, except those of their employees, or those of their service providers, subcontractors or agents to whom such information is necessary for the performance of the Agreement, for the entire Initial Term and any extension/renewal/ tacit renewal for 5 years after the use of the SaaS Service.
15.2.4 For the protection of each other’s confidential information, each Party commits to take the minimum protection measures that it would take to protect their own confidential information, and commits (i) to ensure that their employees and those of their service providers, subcontractors and potential agents having access to the confidential information have signed, prior to any disclosure for their benefit, a confidentiality Agreement whose obligations are equivalent to those contained in this Article and (ii) to justify this in writing and without delay at the first request of the other party.
15.3 Force majeure
15.3.1 None of the parties may be held liable for the non-performance of one of their contractual obligations due to the occurrence of a case of force majeure which is understood as an event (i) beyond the control of the party who suffers from it (ii) which could not be reasonably foreseen at the time of conclusion of the Agreement and (iii) the effects of which cannot be avoided by appropriate measures (art. 1218 Civil Code).
15.3.2 During the period of the force majeure event, if the impediment is temporary (less than thirty (30) days), the event of force majeure suspends, for the party impacted, the performance of their obligations, unless the delay which would result from it justifies the cancellation of the Agreement (except for the obligation to pay the contractual amounts due on the date of the event of force majeure). If the impediment is definitive or of more than thirty (30) days, the Agreement shall be terminated and the parties released from their obligations, subject to notification of such termination by the most diligent of both parties. In all cases, the party affected by force majeure must take appropriate measures (art. 1218 Civil Code) to avoid, eliminate or reduce the causes of the delay and resume performance of their obligations as soon as the event invoked has disappeared.
15.4 Use of the CUSTOMER’s name for reference purposes
After the trial period, if provided for in the Special Terms and Conditions, the CUSTOMER expressly authorizes CONTEXEO to use the CUSTOMER’s name / logo / trademarks, in strict compliance with the CUSTOMER’s graphic charter, solely for commercial reference purposes (list of CONTEXEO’s customer references and public advertisements on CONTEXEO’s professional social networks), to the exclusion of any other use that requires prior CUSTOMER authorization. The public list of CONTEXEO’s CUSTOMERs is an explicit essential attribute (art. 1133 Civil Code) of the provision expected from the CUSTOMER.
15.5 Non-solicitation of Staff
Unless the parties expressly agree otherwise, each party waives the right to hire any of the employees of the other party who have participated in the execution of the Agreement, even if the initial solicitation is made by the employee in question. This obligation is valid for the Initial Term and for any extension / renewal / tacit renewal of the Agreement, and for twelve (12) months following the expiration or termination of the Agreement, regardless of their cause and/or basis. In the event that one of the parties does not comply with this obligation, they agree to compensate the other party (including selection and recruitment expenses, training costs, damages resulting from the personal reputation or commitments already made) by immediately paying a lump sum compensation equal to twelve (12) times the last gross monthly salary that the employee in question received from the party in default.
15.6 Social obligations and hidden labor
CONTEXEO commits to comply with Articles L. 8222-1 and D. 8222-5 of the Labor Code (mandatory declarations to social protection bodies or to the tax administration) and certifies that the company’s services are provided by employees employed in accordance with Articles L. 1221-10, L. 3243-2 and R. 3243-1 of the Labor Code.
15.7 Autonomy of stipulations
The Agreement cancels and replaces all previous verbal or written Agreements between the parties concerning the same services. In the event that any provision of the General Terms and Conditions or the Special Terms and Conditions is found to be invalid or unwritten by a court decision which has the force of res judicata, the parties agree to try to limit, as much as possible, the scope of this invalidity so that the other contractual provisions remain in force and the economic balance of the Agreement is respected. In this case, the parties commit to renegotiate in good faith (art. 1104 Civil Code) the creation of a new clause replacing the clause thus declared null and void or not in writing, unless the cause of nullity affecting a clause constitutes a determining element of the commitment of one of the parties, in which case this nullity shall invalidate the Agreement as a whole (art. 1184 Civil Code).
15.8 Agreement cession
15.8.1 The Agreement may not be ceded, as a whole or partly, whether free of charge or against payment, by the CUSTOMER to a third party, except with the prior written consent of CONTEXEO (art. 1216 para. 2 Civil Code). The effective date of the Agreement cession shall take place when CONTEXEO’s consent for the cession is recorded in writing (under penalty of nullity - art. 1216, para. 3 Civil Code). The ceding CUSTOMER shall remain jointly liable with the assignee towards CONTEXEO for the strict observance of the Agreement (art. 1216-1 Civil Code).
15.8.2 As a derogation to the preceding paragraph, the CUSTOMER may freely assign the Agreement to a legal entity controlled by the CUSTOMER or which controls the CUSTOMER (within the meaning of Article L. 233-3 of the Commercial Code) subject to written notification to CONTEXEO. This notification shall constitute CONTEXEO’s Agreement to the cession and the cession shall take effect on the date of first submission of the notification. The CUSTOMER shall remain jointly liable with the assignee towards CONTEXEO for the strict observance of the Agreement (art. 1216-1 Civil Code).
Each party shall reside at their head office. Any notice (formal notice, report, approval or consent) required or necessary under the Agreement shall be in writing and shall be deemed valid if (i) delivered by hand to the addressee against signature of two (2) original copies (including one (1) for the addressee) or (ii) sent by registered letter with recipient to the other party or (iii) by express courier service against signature of a receipt of delivery. Unless otherwise specified in an article of the Agreement, time limits shall be counted per calendar day, one week comprising six (6) business days and five (5) office days. Any time limit from the date of notification shall run from the first attempt of delivery to the recipient, the postmark counting as evidence as well as the service receipt of the express courier service and the handwritten date on the hand-delivered letter. If an action is to be taken or notification given on a particular date or deadline and that date is not a business day, the action or notification will take effect on the next business day.
By express derogation from the provisions of Article L. 110-3 of the Commercial Code, the parties recognize that any amendment to the Agreement may only be agreed with a written amendment, possibly in the form of an electronic document (art. 1366 of the Civil Code), signed by an authorized representative of each party (entitled by the Articles of Association or by special authority) (an " Amendment"). Consequently, in the absence of a previously signed amendment, shall be deemed null and void (i) any verbal or written Agreement (text messages / tweet / email / letter / meeting reports / etc.) between the parties relating to the Agreement as well as (ii) any service, even partially performed by CONTEXEO that is not expressly included in the strict scope of the SaaS Service.
15.11 Originals of the Agreement and Exchange of Consent of the Parties
The Agreement was drawn up in two (2) original copies (Article 1375 Civil Code), one (1) for each party. CONTEXEO reminds the CUSTOMER that the party who has executed the Agreement, even partially, may not oppose to the other party the absence of the plurality of originals or the mention of their number (art. 1375 Civil Code).
16 Applicable law and jurisdiction
The Agreement is subject to French law, both in terms of form and substance. ANY DISPUTE CONCERNING THE INTERPRETATION, REALIZATION OR TERMINATION OF THE AGREEMENT should, in accordance with Article 48 of the Civil Procedure code and only in the event that the CUSTOMER is a commercial company, exclusively BE SETTLED BEFORE THE TRIBUNAL OF COMMERCE OF THE HEAD OFFICE, even for urgent proceedings, except in the case of material of territorial competence that cannot be contractually changed.
17 Appendix “MAIN Module / SOFTWARE FEATURE LIST”
|Studio||Import and administration module.|
|Maps||Visualization module in Web mode.|
|API||Web Service REST programming interface.|
|App||Mobile apps available Apple iTunes and Google Play.|
18 Appendix “Maintenance / Assistance / Support”
18.1 Software usage assistance / Support
CONTEXEO provides assistance (support) relating to the use of the SaaS Service, by e-mail, at the times defined in the Special Terms and Conditions. The amount of this service is included in the SaaS License fees. Only the Administrator shall have access to Maintenance, but not the Users.
18.2 Maintenance: Software Bug fixing
18.2.1 CONTEXEO provides the CUSTOMER, by remote maintenance, electronic message, etc. with the information necessary to enable the CUSTOMER to attempt to resolve any Major or Blocking issues as soon as it is reported (defined below). Once the Major issue or Blocking issue has been identified and reproduced by CONTEXEO, CONTEXEO commits to install as soon as possible on the Platform a correction of the Software instructions that caused the Major or Blocking issue. To do so, CONTEXEO may install a temporary solution, update or new version of the Software.
18.2.2 CONTEXEO commits to take into account the CUSTOMER’s requests for maintenance action within the shortest possible time. As soon as CONTEXEO has received a written request for intervention from the CUSTOMER’s Administrator (the “Report” of a Bug), CONTEXEO undertakes to acknowledge receipt of the request within four (4) hours and to act as soon as possible in order to reproduce the reported Major or Blocking issue. As from the hour of reproduction of the Major or Blocking issue by CONTEXEO, the SaaS Service is deemed unavailable and the duration of this unavailability is taken into account in the annual availability rate of the SaaS Service fixed in the Special Terms and Conditions and sanctioned by penalties, the calculation of which is given in article 9 “Penalty for non-compliance with the availability rate of the SaaS Service”.
18.2.3 By express Agreement between the parties, the right of use of the Software granted by CONTEXEO to the CUSTOMER under the SaaS Service constitutes a copy of the Software within the meaning of Articles 1709 and following of the Civil Code. As such, CONTEXEO cannot guarantee that the Software will function without any error. The parties acknowledge that the technical state of the software does not allow CONTEXEO to guarantee that CONTEXEO will be able to correct all possible anomalies, errors, Bugs or latent defects likely to affect the Software. In accordance with art. 1133, para. 3 of the Civil Code, by signing the Agreement, the CUSTOMER expressly acknowledges that they accept this hazard, related to the development and operation of software, and therefore renounces to any error relating to the quality of the Software or the SaaS Service.
18.3 Updates and new releases
Updates and/or new versions of the Software are provided to the CUSTOMER, installed and put into production on the Platform by CONTEXEO, without intervention of the CUSTOMER, based on a frequency of which CONTEXEO remains the sole judge. The terms of the Agreement, in particular the right to use the Software granted to the CUSTOMER, apply to any update or new version installed by CONTEXEO on the Platform. CONTEXEO reserves the right to freely develop software features, with no reduction of the availability rate fixed in the Special Terms & Conditions and without removing the features described in the Appendix “List of modules / main functionalities of the Software”.
18.4 Software Maintenance Limitations
To benefit from Maintenance, the CUSTOMER’s Administrator is required to:
(i) report as soon as possible any Bug to CONTEXEO and transmit without delay to CONTEXEO any information necessary or useful for locating and reproducing said Bug;
(ii) make the Administrator fully available to CONTEXEO, and allow CONTEXEO to contact any user likely to provide any useful information on the reported Bug in order to ensure its reproduction.
18.5 Technical information about the Platform
18.5.1 Details of the services provided by the Platform:
(iii) permanent monitoring with automated detection of network or hardware failures;
(iv) intervention in less than 4 hours after detection of failure;
18.5.2 The CUSTOMER’s Data is backed-up daily with automatic alert and immediate restart of the process in case of failure of the last back-up.
18.5.3 To comply with the availability rate set out in the Special Terms and Conditions, CONTEXEO has chosen a Platform with an IT and Internet infrastructure available 24/7, 365 days a year and which meets the best market requirements.
18.5.4 Network access to the Platform is highly controlled (audit and intrusion detection, vulnerability audit, etc.). The physical infrastructure of the Platform is secured at different levels:
(i) geographical location of access to the Platform guarded and monitored 24 hours a day;
(ii) access to the secure site;
(iii) electrical safety of the Platform;
(iv) fire protection of premises housing the Platform;
(v) no physical access to the Platform, except for the benefit of the System Administrator of the Platform and CONTEXEO.
18.5.5 The CUSTOMER Data is protected:
(i) each domain of the Software is partitioned; the Administrator only accesses its Data.
(ii) personal access of Users authenticated by login (identification of User) + password.
(iii) CUSTOMER Data Encryption: transport encryption and storage encryption on the Platform.
19 Appendix “CUSTOMER PERSONAL DATA PROTECTION”
19.1 Principles of application and evolution
19.1.1 During the Initial Term and of any extension / renewal / tacit renewal of the Agreement, CONTEXEO’s commitments regarding the protection of the CUSTOME personal data (the “Personal Data” within the meaning of EU Regulation n°2016/679 of April 27th, 2016 “GDPR”) are set out in this appendix, the terms of which prevail, with the express Agreement of the parties, over any other provision of the General Terms and Conditions, or any other provision of the Special Terms and Conditions.
19.1.2 As soon as they are enacted by the European Commission or by the CNIL in application of the GDPR, the parties commit to recreate a new version of this Appendix in order to comply with any obligation concerning the standard clauses governing any subcontracting of personal data, including in the event of a party’s joining a certification program [Article 42 GDPR] and/or a code of conduct [Article 40 GDPR].
19.1.3 Each Party commits to inform the other Party without delay if they formally join a certification program [section 42 GDPR] or a code of conduct [section 40 GDPR], so that the other Party can take all necessary steps to meet the technical and Contractual expectations of the certification program or code of conduct.
19.2 The CUSTOMER is solely responsible for the processing of Personal Data. The CUSTOMER guarantees to be the rightful owner or holder of the Personal Data that are processed through the SaaS Service offered as standard to all CONTEXEO customers. All the rights of the persons concerned (Articles 15 to 22 GDPR: access, rectification, forgetting, opposition, etc.) must be performed by these persons directly and exclusively with the CUSTOMER. CONTEXEO agrees to comply with any legal written instructions from the CUSTOMER.
19.3 CUSTOMER' S GUARANTEES regarding Personal Data
19.3.1 In accordance with European and French legislation on the protection of personal data, in particular the EU Regulation n°2016/679 of April 27 th,2016 “GDPR”, before any use of the Software or SaaS Service by the CUSTOMER and for the entire Initial Term and any extension / renewal / tacit renewal of the Agreement, the CUSTOMER guarantees to CONTEXEO that:
(i) the CUSTOMER has collected and processed Personal Data in a lawful, fair and transparent manner, for specific, explicit and legitimate purposes that CONTEXEO does not know and of which the CUSTOMER declares having duly informed the persons concerned. Consequently, any prior declaration obligations related to the processing of Personal Data to a supervision authority are at the CUSTOMER’s own expense and the CUSTOMER guarantees CONTEXEO having done so;
(ii) the CUSTOMER is solely responsible for the processing of Personal Data that it collects, seizes or processes in connection with the use of the SaaS Service and that CONTEXEO is not authorized to process for their own purposes;
(iii) the CUSTOMER alone determines the purposes and means of the processing of their Personal Data carried out in particular by the use of the SaaS Service. Consequently, it is the CUSTOMER’s responsibility, prior to the use of the SaaS Service, to verify that the processing of their Personal Data carried out by CONTEXEO complies with the purpose and means of processing of Personal Data given to CONTEXEO.
19.3.2 The guarantees given by the CUSTOMER to CONTEXEO under this article are explicit essential service attribute (art. 1133 Civil Code) at the expense of the CUSTOMER so that CONTEXEO cannot be held responsible as such, on any basis whatsoever. If this is not the case, the CUSTOMER commits to relieve and guarantee CONTEXEO, without restriction or reservation, of any financial or other consequences that may be borne by CONTEXEO.
19.4 CONTEXEO is a subcontractor for the processing of the CUSTOMER’s Personal Data
19.4.1 CONTEXEO acts as a subcontractor for the processing of the CUSTOMER’s Personal Data within the meaning of Article 28 GDPR (Article 35 of Law No. 78-17 of January 6th, 1978). Consequently, CONTEXEO commits (i) not to process the CUSTOMER’s Personal Data otherwise than under the terms of the Agreement and (ii) not to carry out any other processing of the CUSTOMER’s Personal Data that is not provided for in the Agreement, except upon prior written, documented and legitimate instructions from the CUSTOMER.
19.4.2 CONTEXEO reminds the CUSTOMER that, in accordance with article 28.3. para. 2 GDPR, any instruction given by the CUSTOMER to CONTEXEO that could lead to non-compliance with the GDPR or the French law on the protection of personal data, entails the obligation for CONTEXEO to inform the CUSTOMER immediately. CONTEXEO reserves the right to refuse any instructions from the CUSTOMER that is deemed unlawful within the meaning of article 82.2 GDPR. In this case, a written and documented refusal by CONTEXEO shall not allow the CUSTOMER to terminate the Agreement, except for the CUSTOMER to engage their responsibility towards CONTEXEO for termination deemed “without legitimate cause” of the Agreement and cause the application of Article 11.3.3.
19.5 CONTEXEO’s compliance commitments
19.5.1 By May 25th 2018 at the latest, CONTEXEO commits to provide the CUSTOMER with sufficient guarantees regarding the implementation of appropriate technical and organizational measures to ensure that the processing of the CUSTOMER’s Personal Data meets the requirements of the GDPR and guarantees the protection of the rights of the data subjects whose Personal Data are processed by the CUSTOMER via the SaaS Service (art. 28)..1 GDPR).
19.5.3 CONTEXEO commits to process the CUSTOMER’s Personal Data only as to provide the SaaS Service, excluding any other use for the benefit of CONTEXEO or third parties. In accordance with the GDPR, Personal Data are stored and processed by CONTEXEO on servers located exclusively in the territory of the European Union and are not transferred outside the European Union without the CUSTOMER’s prior written consent, except in accordance with an Adequacy decision by the European Union (Argentina, Canada, Israel, New Zealand, Switzerland, Uruguay and “Privacy Shield”) that allows CONTEXEO to export Personal data without specific authorization.
19.6 Register of personal data processing operations
In accordance with article 30.1 GDPR and at the latest on May 25 th ,2018, CONTEXEO commits to keep up to date a list of the CUSTOMER’s Personal Data processing operations including:
(a) the name and contact details of the CUSTOMER and the Data Protection Office if one has been designated by the CUSTOMER;
(b) the purposes of the processing operation;
(c) a description of the categories of data subjects and categories of personal data;
(d) the categories of recipients to whom Personal Data have been or will be disclosed, including recipients outside the EU;
(e) where applicable, transfers of Personal Data to a non-EU country, including identification;
(f) If possible, the expected time limits for erasing the different categories of Personal Data;
(g) If possible, a general description of the technical and organizational security measures incorporating the provisions of the Agreement.
19.7 Security breach notification
19.7.1 In accordance with article 33 GDPR and at the latest as of May 25 th 2018, CONTEXEO commits to inform the CUSTOMER, without delay after having been made aware, of any breach of the security of Personal Data transmitted or processed via the SaaS Service when such breach result, accidentally or unlawfully, in unauthorized access or disclosure, alteration, loss or destruction of personal data. It is then up to the CUSTOMER to inform (i) the competent Control Authority, and (ii) the data subjects when this breach of the security of personal data “is likely to create a high risk for the rights and freedoms”.
19.7.2 At the CUSTOMER’s first request, CONTEXEO shall provide in writing all the elements referred to in Article 33.3 GDPR, but in particular:
(a) the nature of the[personal] data violation including, if possible, the categories and approximate number of persons involved in the breach and the categories and approximate number of [personal] data records involved;
(b) the name and contact details of the DPO or other contact point from which additional information may be obtained;
(c) the probable consequences of the violation of personal data;
(d) the measures taken or proposed by CONTEXEO to remedy the breach of[personal] data, including, where appropriate, measures to mitigate any adverse consequences.
19.7.3 If and to the extent that it is not possible for CONTEXEO to provide the CUSTOMER with all the information at the same time, CONTEXEO commits to communicate such information to the CUSTOMER gradually without any further undue delay.
19.7.4 CONTEXEO commits to document in writing any breach of[personal] data, indicating the facts concerning the breach of[personal] data, its effects and the measures taken by CONTEXEO to remedy it. The documentation thus created will be kept at the disposal of the CUSTOMER and/or the CNIL or any other competent supervision authority.
19.7.5 In the event that the CUSTOMER is “an official provider of electronic communications services on electronic communications networks open to the public” within the meaning of Article 34. a of Law No. 78-17 of January 6th 1978, CONTEXEO commits to inform the CUSTOMER immediately of any “breach of security resulting in accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access” relating to the CUSTOMER’s personal data, on condition that the CUSTOMER informs the CNIL and, where applicable, the persons concerned. In the event of a security breach, CONTEXEO commits (i) to take as soon as possible any appropriate technical correction of the Software and/or the SaaS Service to stop the identified security breach, in particular in order to make the data incomprehensible to any person not authorized to have access to it and to apply them to the data concerned by this security breach and (ii) to justify this in writing without delay to the CUSTOMER.
19.8 CONTEXEO’s commitment in the event of sub-subcontracting
19.8.1CONTEXEO’s obligations, in particular regarding the services of the Platform, may be performed by one of CONTEXEO’s service provider as a subcontractor. In accordance with Article 28 GDPR and at the latest on May 25th, 2018, CONTEXEO commits not to subcontractor their own services to a subcontractor who does not comply with the GDPR and will prefer service providers who have joined a code of conduct [Article 40 GDPR] or who are subject to certifications [Article 42 GDPR]. If CONTEXEO’s subcontractor does not comply with the obligations regarding the protection of Personal Data, CONTEXEO shall remain fully responsible to the CUSTOMER for any breach of the obligations of the GDPR by their subcontractor.
19.8.2 In addition to defining the purpose, duration and nature of the processing operation, the type of personal data and the categories of data subjects (Article 28.3 para. 1 GDPR), each subcontracting Agreement concluded by CONTEXEO must include at least one engagement of the subcontractor:
(a) to process personal data only on documented instructions from CONTEXEO and/or the CUSTOMER, including data transfers to a country outside the EU (unless required to do so by the French law for CONTEXEO; in this case, CONTEXEO commits to inform the CUSTOMER of this legal obligation before the processing operation, unless French law prohibits such information for important reasons of public interest;
(b) to ensure that the persons CONTEXEO authorizes to process personal data commit to respect confidentiality or are subject to a legal obligation of confidentiality;
(c) to take all security measures required by Article 32 GDPR;
(d) not to subcontract themselves all or part of the services to be performed for CONTEXEO and the CUSTOMER to another subcontractor without all the commitments referred to in this article being respected by the subcontractor’s subcontractor;
(e) to assist the CUSTOMER, through appropriate technical and organizational measures, as much as possible, in fulfilling their obligation to comply with requests submitted by data subjects for the exercise of their rights;
(f) to assist the CUSTOMER in ensuring compliance with the obligations to (i) ensure the security of data protection (art. 32 GDPR), (ii) notify the CNIL of any security breaches (art. 33 GDPR), (iii) inform any person concerned by the security breach and any data leakage (art. 34) GDPR], (iv) to carry out a preliminary impact study[Art. 35 GDPR] and (v) to consult the CNIL when carrying out an impact study, taking into account the nature of the processing operation and the information available to the sub-subcontractor;
(g) According to the CUSTOMER’s choice, to delete all data or return them to the CUSTOMER at the end of his service, and destroy existing copies, unless the French law requires the subcontractor to keep the CUSTOMER’s data;
(h) to make available to the CUSTOMER all necessary information to demonstrate compliance with the obligations laid down in this Article and to enable audits, including inspections, to be carried out by the CUSTOMER (or an auditor) and to contribute to such audits.
19.9 Subcontracting and Change of Platform
19.9.1 In accordance with the law n°75-1334 of December 31st ,1975, by signing the Agreement, the CUSTOMER expressly approves the Platform identified in the Special Terms and Conditions as a subcontractor of the hosting services included in the SaaS Service.
19.9.2 With many customers using the standard SaaS service available on the Platform, it is not possible for CONTEXEO to submit a change of Platform to the CUSTOMER for prior approval. The CUSTOMER acknowledges and agrees that CONTEXEO will be free to change Platforms, subject to informing the CUSTOMER in advance and only if:
(i) the new Platform offers performance in terms of security and level of service at least equal to the performances defined in the Special Terms & Conditions;
(ii) the switchover to the new Platform is operated by CONTEXEO without interruption of the SaaS Service provided to the CUSTOMER;
(iii) the Platform respects all of CONTEXEO’s GDPR commitments; and
(iv) CONTEXEO does not change the price of the SaaS License fee.