Master Subscription Agreement
These terms and conditions of sale (“Terms and Conditions”), taken together with the special conditions (“Special Conditions”) that apply to each of the available services (the “Services”), form the full set of contractual conditions (hereinafter and jointly: the “Contract”) between, The PROVIDER and the CLIENT which are hereinafter individually designated as a “Party”, and collectively as the “Parties”.
1. Terms and Conditions applicable to all services
1. Purpose of the Contract
The purpose of the Contract is to set out the terms and conditions of access and use of the services by CLIENT.
2. Date of application and duration of the Contract
This Contract comes into force on the date of subscription to the Service, and is concluded for an indefinite period.
Each Party can terminate the Contract at any time by sending an e-mail message that expressly requests the cessation thereof. In case of termination by the CLIENT, the e-mail message must be sent to email@example.com. In case of termination by the PROVIDER, the e-mail message must be sent to the contact address completed by the CLIENT when setting up the account.
In case of termination by the CLIENT during the period of subscription, there shall be no reimbursement of any sum already paid by the CLIENT to the PROVIDER.
3. Conditions of use of the Services
The CLIENT undertakes to use the Service only for its professional activity as carried out on its website, as completed by the CLIENT when setting up the subscription, and to use it solely for its own needs. Under no circumstances can the Service be used in any manner whatsoever for and on behalf of third parties.
The CLIENT undertakes to use the Service for lawful purposes. The CLIENT shall under no circumstances use the Service for an activity that is against the law or the rights of third parties.
The CLIENT undertakes not to try to decrypt, decompile, or modify, in any way whatsoever, the computer programs upon which the Service relies.
4. Conditions of access to the Services
The Services will be provided by the PROVIDER to the CLIENT in accordance with the Special conditions.
A high speed Internet connection is required for proper transmission of the Services. You are responsible for procuring and maintaining the network connections that connect Your network to the Services, including, but not limited to, “browser” software that supports protocols used by the PROVIDER, including the Transport Layer Security (TLS) protocol or other protocols accepted by the PROVIDER, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You, Agents or End-Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Service Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by the PROVIDER. We assume no responsibility for the reliability or performance of any connections as described in this section.
Any use of the Services requires the prior opening of an account that, once it is approved by the PROVIDER, generates an access code enabling the Service to be activated.
In any case, the CLIENT undertakes to reserve access to and use of the Services solely for its authorised members of staff. Those persons must have acquainted themselves with the terms and conditions of use of the Services. The access codes provided to the CLIENT are confidential and fall entirely under the CLIENT’s responsibility; the CLIENT shall take any appropriate measures to guarantee the confidentiality of the codes and to prevent third parties from using them.
The CLIENT remains fully liable for any action taken through its account(s).
The PROVIDER must retain and archive all items relating to the use of the account. The PROVIDER can avail itself, especially for evidential purposes, of any file, act, recording, monitoring report, or statistics, on all supports, including the computer support set up, received, or retained by the PROVIDER. Those evidential terms and conditions form a presumption that can only be overturned based on proof that the PROVIDER’s means of recording and storage have effectively been defective.
5. Evolution of the Services
The PROVIDER may have to develop the Services to adapt to technological change or to meet market expectations, in particular by adding or deleting one or more features of the Services.
No additional price shall apply to any functional development that lies within the initial perimeter.
If the essential features of the Services are deleted or modified, the PROVIDER shall inform the CLIENT of the matter at least one (1) month before the aforesaid deletion or modification. If appropriate, the CLIENT can terminate the Contract by e-mail message. If the CLIENT does not terminate the Contract before the aforesaid deletion or modification, it shall be deemed to have accepted the deletion or modification concerned.
6. Commitments and guarantees
The PROVIDER shall make its best to ensure that the Services operate twenty-four (24) hours a day, seven (7) days a week. It is stipulated that the PROVIDER reserves the right to suspend the provision of Services to carry out technical work. The PROVIDER shall, to the extent possible, give the CLIENT eight (8) days’ notice of the nature and duration of the work so that the CLIENT can make arrangements.
The CLIENT acknowledges that it is aware of the potential, purpose, and features of the Service to which it has subscribed and that it has been able to assess its suitability for its own needs.
The state of the art does not allow tests and checks to be carried out in respect of all possible ways of using the Services. Accordingly, the PROVIDER is not able to guarantee that the Services are free from anomalies.
However, the PROVIDER commits to doing everything to correct, as soon as possible, the reproducible anomalies that the CLIENT reported to it. This guarantee is only given by the PROVIDER to the CLIENT if the Services have been used in accordance with their description, and if all technical prerequisites have been complied with.
7. Intellectual-property rights
Subject to third-party rights, the PROVIDER retains sole ownership of results, computer developments, studies, know-how, and other knowledge, whether patented or not, acquired before this Contract comes into force.
Subject to third-party rights, the PROVIDER is the sole owner of its trademarks, names, denominations, logos, colours, graphics, and other distinctive signs, as well as of those that may be produced or used as part of this Contract, unless expressly provided otherwise in this Contract.
Subject to third-party rights, the PROVIDER is the holder of copyright in the software used to provide the Services. In that regard, the PROVIDER guarantees the CLIENT the right to enjoy the Services quietly, provided the CLIENT complies with the conditions for using those Services.
If a third party brings legal action against the CLIENT because the latter has used one or more Services, the PROVIDER undertakes to defend the CLIENT if the action is based on an intellectual property right, and if the CLIENT has immediately given notice thereof to the PROVIDER. The PROVIDER shall have sole control of the procedure.
If, for the needs of the Services and the use thereof, the PROVIDER provides the CLIENT with items that come under the French intellectual property code, that shall not be considered a transfer, under the meaning of the said Code, of any intellectual-property right from the PROVIDER to the CLIENT.
To the extent required, the PROVIDER grants the CLIENT, for the duration of the Contract and for the needs of performing the Contract, a personal, non-exclusive, and non-transferable authorization to use any immaterial item made available to it (logo, software package, etc.), in particularly to the extent of rights held by the PROVIDER.
The provision of Services by the PROVIDER is based on the fact that the latter can access and process certain data contained in the CLIENT’s content-management system (CMS). To that end, the CLIENT authorises the PROVIDER to access and process the said data subject to the limits that are strictly needed to perform the Contract; in any case, those data remain the CLIENT’s property.
8. Personal data
For the purpose of this article:
“Personal Data” means any information relating to an identified or identifiable Person. A Person is deemed identifiable when she / he can be identified directly or indirectly, especially by reference to an identifier or to one or more specific items that are specific to the Person’s identity.
“EEA” means the European Economic Area, which, on the date of the Contract, includes the European Union, Norway, Iceland, and Liechtenstein.
“Guarantees” means the appropriate guarantees taken to maintain the security and confidentiality of Personal Data Transferred outside the EEA to a country with legislation that the European authorities have not deemed adequate, under the conditions set out in the Data Regulations.
“Person” means any physical person (client, employee, service provider, supplier, etc.) whose Personal Data are likely to be Processed as part of the Contract.
“Data Regulation” means the regulation applicable to the CLIENT in matters of using Personal Data, especially law no. 78-17 of 6 January 1978 on information technology, files, and freedoms, as well as any regulation that supplements it or that replaces it, especially Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
“Data Controller” means the Party that determines, alone or in conjunction with another Data Controller, the purposes and means of Processing that it may entrust, in full or in part, to one or more Subcontractors.
“Subcontractor” means any physical or legal person who Processes Personal Data for and on behalf of a Data Controller.
“Process” or “Processing” means carrying out any operation or series of operations covering Personal Data, such as collecting, recording, organising, storing, adapting, modifying extracting, consulting, using, communicating by transmission, circulation or any other means of provision, convergence, interconnection, locking, deletion, and destruction, regardless of whether or not that operation is carried out automatically.
“Transfer” or “Transferring” means transferring Personal Data or giving access thereto, including by provision, from the territory of an EEA Member State to a country outside the EEA.
0.1. Authorisation of the Processing carried out by the Service Provider acting as Subcontractor to the CLIENT
As part of carrying out the provisions of service set out in the Contract, the PROVIDER can, for the whole duration of the Contract and until expiry of the durations defined by the CLIENT, have access to Personal Data in the table set out below.
Purpose of subcontracting
Providing Services in SaaS mode
Purpose of Processing put in place by the PROVIDER
Establishing contact between final clients and the CLIENT, and drawing up statistics for and on behalf of the CLIENT
Categories of Personal Data Processed by the PROVIDER
Final customers data who call the Service
Categories of Persons
The CLIENT’s final customers
In that context, the PROVIDER acts as the CLIENT’s Subcontractor. The PROVIDER acknowledges that it has no right to the Personal Data that it Processes for and on behalf of the CLIENT.
For as long as the PROVIDER has access to the aforesaid Personal Data, it undertakes to comply with the CLIENT’s written instructions regarding the use that can be made of the Personal Data. The said instructions shall be documented as part of the system of monitoring incident tickets managed by the PROVIDER.
The PROVIDER shall immediately inform the CLIENT if, in the opinion of the PROVIDER, one of the CLIENT’s instructions is likely to violate the Data Regulations.
In addition, if the PROVIDER is required to carry out Processing under the law of the European Union or under the law of one of the European countries to which it is subject, it must inform the CLIENT of that legal requirement before Processing, except if the right concerned prohibits the giving of such information due to significant reasons of public interest.
The PROVIDER undertakes to:
• Implement the appropriate technical and organisational measures to protect Personal Data from any foreseeable risk of destruction, loss, alteration, disclosure, or unauthorised access, as well as to ensure the availability and integrity of those Personal Data. In that regard, the PROVIDER can be required, in order to take account of risks that may exist for the security of Personal Data and for persons’ privacy, to pseudonymise and / or encrypt Personal Data and / or supports;
• Take all security measures to ensure compliance with the Data Regulation, and, in particular, at the end of the Contract and at the CLIENT’s choice, destroy all files that include Personal Data, or return in full all supports that include such Personal Data, and not to retain any copy or original thereof;
•In the event of a security failure causing a violation of Personal Data, inform the CLIENT thereof in writing as soon as possible after having learnt of the event, and carry out an investigation that enables a gradual series of reports to be sent, as the investigation progresses, to the CLIENT containing information on the nature and extent of the Personal Data that may already be affected and the corrective measures that have been taken or that are envisaged.
The PROVIDER undertakes to provide the CLIENT with all necessary assistance to enable the latter to comply with all its obligations under the Data Regulation, in particular enabling it to carry out the analyses and other consultations required, and to enable Persons to exercise their rights in relation to their Data. In the latter case, if Persons make requests directly to the PROVIDER, the latter undertakes to use all means to pass them on to the CLIENT. The PROVIDER also undertakes to cooperate with the competent control authority, doing so in conjunction with the CLIENT.
The PROVIDER shall make available to the CLIENT, and shall provide the latter on first request from it, all evidence to prove compliance with the PROVIDER’s obligations under the Data Regulation, and shall make available to the CLIENT all the information needed to enable audits, including inspections, to be carried out by the CLIENT or by an auditor appointed by it, at the CLIENT’s expense, and shall contribute in a reasonable manner to those audits.
The PROVIDER undertakes not to use the documents and Personal Data for purposes other than those specified in the Contract. In addition, the PROVIDER undertakes to make its staff subject to a duty of confidentiality and to ensure compliance therewith.
The PROVIDER is authorised to entrust the performance of certain services set out in the Contract to Subcontractors subject to having previously ensured, on the basis of contracts, that those Subcontractors offer security guarantees and are subject to obligations that are at least as binding as those applicable by virtue of the Contract.
The CLIENT guarantees that it has taken the precautions needed to comply with the Data Regulation, in particular regarding its obligations relating to informing its own clients. In that regard, the CLIENT guarantees to the PROVIDER that the CLIENT’s subscription to the Services and the performance of the Contract by the Parties shall not, under any circumstances, constitute a breach of the Data Regulation.
0.2. Personal Data exchanged between the Parties
Each Party can give the other Party access to Personal Data concerning the first Party’s staff for the purposes of monitoring the Contract (invoicing, committee meetings, etc.). The Party that receives those Personal Data shall act as Data Controller in relation to those data, and shall comply with its obligations under of the Data Regulation.
In that context, each Party shall make it its business, acting for and on behalf of the other Party, to provide its members of staff concerned with all information relating to the Processing implemented by the other Party, and that is based on performing the Contract as well as each Party’s legitimate needs in relation to managing the commercial relationship. To that end:
- The CLIENT is hereby informed that the Persons concerned by such Processing can exercise their rights under the Data Regulation, and do so at the following address: firstname.lastname@example.org;
- The PROVIDER is hereby informed that the Persons concerned by such Processing can exercise their rights under the Data Regulation, and do so at the following address: email@example.com.
9. Financial conditions
The prices of the Services are set out in the Special Conditions.
In the event of late payment, including if late payment is due to a lack of funds on the bank account or if a change of bank account has not been notified to the PROVIDER, the CLIENT shall be subject to a late-payment penalty equal to thrice the legal interest rate calculated for each monthly payment, and a flat-rate indemnity of forty (40) euros by way of recovery fees, in accordance with articles L.441-6 and D. 441-5 of the French commercial code, and without a letter of notice being required. An additional indemnity may be sought, subject to supporting documents being provided, when the recovery costs incurred exceed the flat-rate indemnity.
In addition, starting thirty (30) days after the due date for payment and until full settlement of the sums due, non-payment in full or in part of any sums due shall have the effect of allowing the PROVIDER to suspend the provision of all Services subscribed to, notwithstanding the right to claim an indemnity in respect of the loss suffered. The CLIENT shall, in any case, bear sole liability for the consequences of that suspension.
10. Termination of the Contract
If a Party is in serious breach of its essential obligations, the other Party shall, thirty (30) days after notice being given in the form of a registered letter sent with acknowledgement of receipt has remained without effect, or immediately in the case of an irreparable breach, be authorised to automatically terminate as of right (“de plein droit”) the Contract by sending a registered letter with acknowledgement of receipt, notwithstanding the right to claim an indemnity in respect of the loss suffered.
Unless otherwise provided by the Contract, in all cases of full or partial termination of the Contract, the provisions of service already made by the PROVIDER under the Service on the date of termination of the Contract cannot be brought into question, and the corresponding sums remain owing to the PROVIDER.
11. The PROVIDER’s liability
The CLIENT bears sole liability for the use it makes of the Services and for non-compliance with the instructions for use, as well as any handling that fails to comply with the requirements, whether contractual or not, linked to its professional activity.
The PROVIDER and the CLIENT shall be liable, each in respect of the matters that concern it, for all the direct or indirect pecuniary consequences of the civil liability that they incur under common law, by reason of losses caused to third parties on the occasion of or under this Contract.
Under no circumstances shall the PROVIDER be held liable towards the CLIENT for any indirect damage suffered by the latter. It has been agreed by the Parties that indirect damage shall be taken as any commercial loss, deterioration of brand image, or loss of profits, income, productivity, turnover, clientele, orders, or data. Any action taken against the CLIENT by a third party shall be deemed to constitute an indirect loss, and, consequently, it does not give entitlement to compensation payable by the PROVIDER.
In the event of proven negligence on the part of the PROVIDER leading to damage suffered by the CLIENT, the CLIENT’s right to compensation in relation to direct damage shall be limited, for each contractual year, to three (3) months of average invoicing during the course of the year, up to a maximum of twelve (12) months of average invoicing for the entire duration of the Contract. If the damage should occur during the first twelve (12) months, the entitlement to compensation shall be limited to one third of the invoice amount relating to the Services on the day of the fault that gave rise to the damage.
By express agreement between the Parties, no legal proceedings, other action, or claim, of whatever type, can be brought by the CLIENT more than twelve (12) months after the occurrence of the fact that gave rise to it.
12. Force majeure
No Party can be held liable towards the Party for non-performance or delayed performance of its obligations under the Contract, and that may be due to a case of force majeure, arising from any event or circumstance that lies outside its control, and that is of an irresistible and unforeseeable nature.
Cases of force majeure shall be those deemed such by the jurisprudence handed down by the Cour de Cassation.
The Party that relies on a case of force majeure shall be required to prove it and to give notice thereof to the other Party, indicating to the latter the duration and foreseeable consequences of the case of force majeure within eight (8) days of that case occurring.
For the said Party to benefit from that case of exemption from liability, it must also provide evidence that it has unsuccessfully made all reasonable efforts to ensure the performance of its obligations, including by using replacements.
In any case, the said Party must do its best to limit the consequences of a case of force majeure.
For the entire duration of the Contract, any case of force majeure, as defined above, shall suspend the obligations arising from the said Contract for the duration of the event or circumstance.
However, if the suspension of obligations arising from the Contract lasts more than one (1) month, the CLIENT shall be entitled to terminate this Contract by registered letter with acknowledgement of receipt, after the expiry of that period of suspension of one (1) month, and subject to fifteen (15) days’ notice being given.
The PROVIDER declares that it is the holder of an insurance policy that covers its professional liability and the risks linked to its activity.
Each of the Parties undertakes to comply with a general obligation of confidentiality in relation to information obtained from the other Party.
In consequence, neither Party shall make known to anyone, whether directly or indirectly, all or any part of the confidential information, which is expressly defined between the Parties as being any information of a commercial, personal, financial, or organisational nature, which relates to a Party, and which has been communicated by the other Party (“Confidential Information”).
That commitment applies throughout the term of the Contract, and for five (5) years after the expiry or termination of the Contract.
Except for personal details provided when performing the Contract, this confidentiality undertaking does not apply:
- When on request from one Party, the other Party gives written authorisation for the use or circulation of confidential information;
- When that information and those confidential data enter the public domain, without the other Party having placed them there;
- When one Party can establish that it held the information before the performance of the Contract.
15. Assignment of the Contract
The CLIENT shall not assign, in whole or in part, its rights and obligations under this Contract.
The PROVIDER can assign all or part of the Contract, or delegate all or part of its obligations arising from the said Contract, on notification sent to the CLIENT, and it can do so at any time, to any current or future company that belongs to the same group as the PROVIDER, a matter to which the CLIENT hereby gives its express agreement. If the PROVIDER assigns the Contract, the latter shall be validly discharged therefrom.
16. General provisions
Unless expressly provided otherwise in this Contract, the Parties acknowledge, in their relationships, the validity and probative force of electronic correspondence and digital documents exchanged between them in the context of this Contract.
For the performance of this Contract and its consequences, the Parties elect domicile at their respective registered offices.
The provisions of this Contract express the entirety of the Contract concluded between the Parties. They take precedence over any other previous proposal or provision or agreement, as well as over any other communication between the Parties relating to the purpose of the Contract.
The PROVIDER reserves the right to unilaterally modify the conditions of the Contract. The PROVIDER shall inform the CLIENT thereof in writing or by electronic correspondence, no later than one (1) month before the coming into force of the modifications, except if it is a case of a modification arising from a regulation that comes into force immediately.
If the CLIENT fails to send the PROVIDER a written answer by registered letter with acknowledgement of receipt before the start date of those modifications, the CLIENT is deemed to have accepted those modifications. If the proposed modification is declined, the CLIENT can make a written request for the Service to be terminated, at no cost, before the start date of the proposed modifications.
The nullity, for any reason whatsoever, of any one of the obligations arising from this Contract shall not affect the validity of the other obligations arising from this Contract for any reason whatsoever.
Failure by one of the Parties to enforce the application of any of the clauses of this Contract, whether on a temporary or permanent basis, shall not in any case be deemed a waiver of that Party’s rights under the said clause.
No document subsequent to the Contract being signed shall give rise to obligations under the said Contract if it is not the subject of an amendment signed by both Parties.
Except in a case of manifest error, the data contained in the CLIENT’s information system have probative force with respect to the relationships between the Parties.
The CLIENT authorises the PROVIDER to quote its name as a commercial reference. For more detailed communication, the PROVIDER undertakes to have the said communication given prior validation by the CLIENT’s communication department.
17. Applicable law and attribution of competence
Any dispute between the Parties arising from this Contract, relating to the existence, validity, interpretation, performance, and termination of this Contract (or to any of its clauses) and that the Parties are not able to resolve by mutual agreement, shall be submitted to the sole jurisdiction of the Paris Commercial Court.
2. Special conditions applicable to each service
You understand and agree that The Services are not intended to support or carry emergency calls to any emergency services, such as public safety answering points; (b) We will not be held liable for any claim, damages or loss (and You hereby waive any and all such claims or causes of action), arising from or relating to Your (or Agents’ or End-Users’) inability to use The Services to make such emergency calls; (c) You are solely responsible for Your operation of The Services in compliance with all applicable laws in all jurisdictions, including, but not limited to, telephone recording and wiretapping laws and laws related to telemarketing and spam, such as the Telephone Consumer Protection Act; and (d) You will defend, hold harmless and indemnify Us from and against any third party claim arising from any of the foregoing.
If the PROVIDER makes access to any APIs available as part of the Services, the PROVIDER reserves the right to place limits on access to such APIs (e.g., limits on numbers of calls or requests). Further, the PROVIDER may monitor Customer's usage of such APIs and limit the number of calls or requests Customer may make if the PROVIDER believes that Customer's usage is in breach of this Agreement or may negatively affect the Services (or otherwise impose liability on the PROVIDER).
Fair Use Policy:
In any case, all Plans:
May only be used for normal business use;
Are provided only for live dialog between two individuals; and
May only be used for some specific international numbers;
The PROVIDER reserves the right with or without prior notice to disconnect or suspend your Service and terminate the Agreement if The PROVIDER determines that your use of the Service violates any point of the Agreement, including the Fair Use Policy above.
By call, we designate all human interactions initiated by the end-customer with The Services.