Conditions Générales de Vente
The Service Provider publishes a Software Package dedicated to customer relationship management (CRM) which it offers in several formats: Cloud, Subscription or Purchase.
The present General Terms and Conditions of Sale are concluded between the Service Provider and all its Customers, together referred to as “the Parties”.
These terms define the rights and obligations of the Parties, as well as the terms of supply of products and services by the Service Provider. All orders placed by the Customer are governed by the present terms.
Section I contains provisions applicable to all products and services offered. Section II contains provisions relevant to each type of product/service offered.
In the event that the Customer orders third-party software in addition to the Software Package, only the provisions of Section I (with the exception of Article 5) will govern the sale of such third-party software packages between the Parties.
Each of the terms listed below has the meaning given to it in the following definition:
Subscription(s): refers to subscriptions to Cloud, Subscription or Maintenance services and, more generally, all the products and services sold as subscriptions by the Service Provider.
Purchase: refers to when the Customer purchases a user licence for the Software Package.
Adaptations: refers to specific configurations and extensions of the Software Package. Adaptations may be implemented by the Service Provider or by any Integrator certified by the Service Provider.
Standard Anomaly: refers to an operation of the Solution that does not comply with the Standard Documentation.
Specific Anomaly: refers to an operation of the Solution that does not comply with the Specifications (an anomaly arising from Adaptations).
Purchase Order: refers to quotes issued by the Service Provider and signed by the Customer or, by default, the financial terms quoted in the Business Proposal signed by the Customer.
Cloud: refers to the hosting of the Solution on the Service Provider’s infrastructure, the provision of access to the Solution, and all associated services described in Article 1; the counterpart to On Premise service format.
Standard Documentation: refers to installation, usage, administration and interfacing documentation for the Software Package, as well as to technical documentation.
Customer’s Technical Reference Environment: refers to all the hardware and software components within the Customer’s information system that interact with the Solution, such as server components (unless hosted in the Cloud) (hardware, database server, application server, web server, email, etc.) and user workstation tools (hardware, OS, browser, office software, etc.).
Essential Function: refers to a function whose use is significant (required at least 20% of the time) to the extent that its absence significantly disrupts the overall functioning of the application (induced work overload for the users concerned exceeds 50%) and affects a significant number of users (at least 50%).
Integrator: refers to a third-party company entrusted by the Customer with the implementation of Adaptations to the Software Package and the correction of any resulting Anomalies.
Corrective Maintenance: refers to the service of correcting Anomalies as described in Article 2 of Annex 1. This service at least includes Standard Anomalies and may optionally include Specific Anomalies. The scope of the service is defined in the Business Proposal or the Purchase Order.
On Premise: refers to when the Customer hosts and operates the Solution; the counterpart to the Cloud service format.
Software Package: refers to the ‘standard’ features of the software published by the Service Provider, i.e. independently from any Adaptations.
Business Proposal: refers to the Service Provider’s final offer of service as accepted by the Customer; this does not include commercial brochures or any other generic marketing document, as well as any offers that are not final.
Project: refers to all of the services designed to adapt the Software Package to meet the Customer’s stated needs through the implementation of Adaptations.
Solution: refers to the Software Package and its adaptations.
Subscription: refers to the Customer’s subscription to a user licence for the Software Package for a period limited to the term of the Subscription(s) and in the On Premise format.
Specifications: refers to the functional and technical documents produced and approved during the Projects that describe the Adaptations to be implemented to provide the Solution.
These General Terms and Conditions of Sale constitute the common legal basis applicable to all products and services offered by the Service Provider. Any deviation from the present General Terms and Conditions of Sale will be noted in the Specific Terms and Conditions.
- The contractual documents governing relations between the Parties are, in order of increasing priority:
- The specifications / Customer’s needs assessment
- The Service Provider’s Business Proposal(s)
- The present General Terms and Conditions of Sale and their Annexes
- The Purchase Order(s)
- The Specific Terms and Conditions (if applicable)
- The Project documents formally approved by the Parties
The contractual documents detail all of the Parties’ obligations in full.
The amounts indicated in the Business Proposals or Purchase Orders are exclusive of tax and will be increased by the taxes applicable on the date of invoicing.
Invoices are payable net and at no discount within 30 calendar days of the invoice date.
All complaints related to an invoice must reach the Service Provider within 15 calendar days of receipt of the invoice. Complaints received after this period will not be accepted.
By express agreement and unless postponed in time and agreed by the Service Provider on an ad hoc basis, non-payment on the due date of an invoice will automatically and without prior notice, notwithstanding the termination clause, result in the immediate enforcement of all remaining sums due, regardless of the intended method of payment, as well as an invoice for late payment interest calculated at the rate of three (3) times the then-current statutory rate. Late payment interest is calculated from the day following the due date of the invoice until the day on which the Service Provider’s account is credited.
The rates are indexed on the basis of the reference index (see Annex 3) each year on the anniversary date of the contract, with the base index being that of the month preceding the signing of the contract, based on the following formula:
Revised price = P0 x S1 / S0
P0 =original contractual price or last revised price
S0 =reference index chosen on the original contractual date or during the last revision
S1 =last published index on the date of revision
In the event that the index is discontinued, it will be replaced by any new index measuring the evolution of software or computer services prices in the relevant territory.
All travel and subsistence expenses will be invoiced to the Customer on the basis of supporting documents. If applicable, all such expenses will fall below the upper limits of the price list provided by the Customer.
For the period(s) defined herein, the Service Provider grants the Customer a personal, non-exclusive and non-transferable right to use, under object code, the Software Packages identified in the Purchase Order.
The Customer may only use the Software Package for its own activities.
The Customer shall refrain from sublicensing, selling, transferring, assigning, distributing or exploiting the Software Package for commercial purposes.
The right of use includes the right to:
- execute the functions of the Software Package as described in the Specifications;
- install and use the Software Packages in the Technical Reference Environment (On Premise);
- implement Adaptations and interface the Software Package with third-party applications;
- authorise third-party access to the Software Packages on an ad hoc basis.
The Service Provider warrants that it is the owner of the intellectual property rights, or otherwise has the necessary authorisations, to sell the Software Packages. The Service Provider guarantees the Customer’s peaceful enjoyment of the rights granted to it on the Software Packages it publishes.
The Service Provider shall indemnify the Customer against any action or claim based on counterfeiting, unfair competition or parasitism aiming to restrict or prohibit the use of the Software Package within the scope of the contract, provided that: 1) the Customer has notified the Service Provider within a reasonable time of the action or claim; 2) the Service Provider has been able to defend freely and at its own expense its own interests and those of the Customer and, to this end, the latter has loyally cooperated in the said defence by providing, in due time, all the elements necessary to pursue such a defence; 3) the Customer accepts that the Service Provider may negotiate, if it deems it appropriate, the withdrawal of the claimant; and 4) the dispute concerns an element of the Software Package.
In the event of a prohibition of the use of all or part of the elements for which rights have been transferred, the Service Provider shall endeavour (at its discretion) either to obtain the right for the Customer to continue using the item concerned at no additional cost to the Customer; or to modify the Software Package in order to avoid counterfeiting; or to provide a replacement solution; or (only in the event of Purchase) to refund to the Customer part of the sums already paid for the Software Package, taking into account the time during which the Customer was able to use it.
After failure to pay an uncontested invoice and after formal notice has gone unheeded for a period of 15 calendar days, the Service Provider may suspend its services.
If the Customer does not pay the sum due in full within the following 15 calendar days, the Service Provider may suspend all services ipso jure until full payment of the sum due, plus default interest, has been made. This suspension will not lead to any change in the specified price or the application of any penalties on the part of the Customer.
In addition, the Service Provider may at any time suspend the services if their use proves to be unlawful, excessive and/or likely to jeopardise the overall quality of its services (by sending newsletters, spam, defamatory comments or texts, violation of human rights, attempted piracy, attempted interception of voice messages, or messages of a promotional nature commonly known as ‘junk mail’, breach of public order or morality, etc.).
Each Party may terminate the Services (Subscription(s) and Projects) by registered letter with acknowledgement of receipt in the event of a breach of contractual obligations by the other Party where such breach is not remedied within 30 calendar days of a formal notice of default, subject to any damages to which the Party may be entitled. Payment will remain due for any services rendered.
The Service Provider’s right of termination applies in the event of non- payment or late payment by the Customer and use of the Software Packages that contravenes the intellectual property rights granted by the Service Provider.
The Customer’s right of termination applies in the event of a serious and repeated breach by the Service Provider of its contractual obligations.
The following provisions allocate liability between the Service Provider and the Customer; the agreed prices reflect this allocation of liability and the resulting limitation of liability.
The Customer declares that it is fully aware that a Software Package may contain bugs or may not operate without interruption.
In no event is the Service Provider liable for indirect damage (particularly including lost profits, loss of income, staff time spent entering data in the event of loss, and damage resulting from an interruption in the use of the Software Packages) caused by a failure or error in the Software Package.
The Service Provider is in no event liable for any damage resulting from the quality of the Customer’s internet connection or any malfunctions on the Customer’s workstation.
In On Premise mode, the Customer shall make regular backups of its data (at least daily) to minimise any damage that could arise due to a loss of data.
In any event, the Service Provider’s liability is limited upon a successful claim to 60% of the sums invoiced by the Service Provider and paid by the Customer in the 12 months preceding the incident.
The Service Provider warrants that it is insured with an insurance company known to be solvent for all the liabilities it may incur under the present contract and shall provide the Customer with a certificate of insurance less than three months old upon request.
The Client shall indemnify and defend the Service Provider against any actions, expenses, damages, losses, liabilities or costs arising from or in connection with a breach of the Customer’s obligations.
Failure by the Customer to comply with a substantial obligation discharges the Service Provider’s liability.
The Parties may not be held liable for any breach of their contractual obligations resulting from the occurrence of a force majeure event.
In the event of a force majeure event, the affected Party shall promptly inform the other Party. Its obligations shall be suspended from the date of such notification until such time as the situation comes to an end.
If such circumstances continue for a period of more than one (1) month, the Parties shall enter into discussions with a view to reaching an agreement. If no agreement or other alternative is possible, the contract may be terminated by the Party whose obligations are not affected by the force majeure event.
Force majeure events include, but are not limited to, strikes, failure of the public electricity network, the majot
cking of telecommunications networks, uncertainties specific to the internet, and acts of computer piracy that could not have been avoided by the security measures agreed between the Parties.
The Service Provider is authorised to subcontract to third parties the performance of all or part of the services under the conditions described in Annex 2.
Each Party shall keep confidential any information related to the other Party that it may become aware of in the course of performing services, including computer programs, financial and commercial information, and any document bearing a confidentiality notice and/or indicated in writing to be confidential.
The Service Provider shall guarantee the confidentiality of all Personal Data likely to be processed in the context of its services and shall ensure that the persons authorised to process such Personal Data are bound by an appropriate legal or otherwise agreed duty of confidentiality and receive the necessary training in the protection of personal data.
Under no circumstances may all or part of the rights and obligations provided for be transferred between the Parties or assigned by a Party to a third party unless otherwise agreed in writing.
However, each Party shall remain free to assign or transfer all or part of its rights and obligations hereunder to a company in its Group without the prior consent of the other Party, provided that the latter is informed of this assignment or transfer.
Except in cases of emergency, the Parties shall make every effort to prioritise an amicable settlement in the event of an impasse.
If such an impasse occurs, the Party with an interest in acting shall refer the matter to the other Party by registered letter with acknowledgement of receipt in order to attempt an amicable settlement.
If an amicable settlement is not achieved within one month, the Party with an interest in acting may refer the matter to the competent court.
See Annex 3.
The Service Provider will implement the Project based on specifications provided by the Customer for a provisional budget and according to a defined, provisional timetable. The precise content of the Project may change during the course of the Project subject to the written agreement of the Parties. The Service Provider is the project manager of the Project.
The Projects generally consist of four stages: framing (needs assessment by the Customer and analysis of the compatibility between its needs and the possibilities offered by the standard Software Package), development (implementation of Adaptations), acceptance and production. The start of a step can only take place after formal approval of the previous step. The details of the steps are defined in the quality assurance plan.
15.3.1 Obligations of the Customer
The Customer shall:
- express its needs accurately and exhaustively through a number of reference documents, electronic messages and working meetings;
- describe precisely its IT environment and organisation, this description being of substantial importance;
- provide the Service Provider with the resources (office, documentation, means of communication, etc.) necessary for the proper performance of the services as long as the services are performed on the Customer’s premises;
- respect the deadlines set, in particular for the approval of documentary and application deliverables;
- consult with the Service Provider without delay in order to deal with any unforeseen circumstances or situations that may require arbitration;
- participate in the work by allocating the necessary internal resources in terms of quality and quantity;
- systematically consult with the Service Provider and examine its recommendations in detail to facilitate the optimisation of choices and trade-offs in terms of the number of working days, the price and the duration;
- systematically favour standard solutions offered by the Software Packages over Adaptations;
- process the data to be uploaded to the Software Package in accordance with the instructions given by the Service Provider and make this data available to the Service Provider in accordance with the Project schedule (these data preparation and formatting operations are critical for the acceptance and completion of the Project and are thus of substantial importance);
- take ownership of the general direction of the Project in its capacity as principal.
15.3.2 Obligations of the Service Provider
The Service Provider shall:
support the Customer throughout the Project and provide it with recommendations adapted to its stated needs;
- deploy the technical means and adequate personnel to ensure the completion of the work entrusted to it (the Service Provider alone shall assess the means of achieving this);
- inform the Customer of any absence, in particular due to leave or training, of its personnel assigned to carry out the work as soon as it becomes aware of such absence;
- implement the means to respect the milestones of the provisional schedule agreed in the Service Provider’s Business Proposal.
15.3.3 Mutual Obligations
Each Party shall:
- cooperate in good faith and provide the other Party with all relevant information, documents and data necessary for the proper performance of the services;
- nominate a single contact person who has sole authorisation to represent it with regard to the other Party and to take any decisions concerning the Project;
- attend Project follow-up meetings.
The Service Provider warrants that the Adaptations it has implemented will comply with the Specifications. It shall correct any Specific Anomaly free of charge for a period of two months from the date of delivery for acceptance.
Moreover, two months after the start of production, even in the absence of formal validation (Regular service validation), it is contractually agreed an automatic and unreserved acceptance of the Software as a whole.
Unless otherwise stated in the Business Proposal or Purchase Order, the terms of invoicing are as follows:
- 40% upon ordering
- the balance upon completion: on the last day of each month, the Service Provider shall invoice the Customer on the basis of the time logged by its staff as soon as the amount invoiced upon ordering is reached.
The Service Provider provides resources to the Customer. The Customer is the project manager for the services provided and thus responsible for the management methodology adopted for the Project.
16.2.1 Obligations of the Customer
The Customer shall:
- manage the resources made available to the Customer
- notify the Service Provider in the event of a problem (attitude, lack of competence, lack of commitment, etc.)
16.2.2 Obligation of the Service Provider
The Service Provider shall make available the specified resources according to the agreed availability in order to ensure the performance of the services entrusted to it.
As far as possible, the Service Provider shall avoid changing the staff assigned to perform the services. In the event that a replacement is needed nevertheless, he/she will ensure that the member of staff is replaced by a new individual with at least equivalent competence and experience and with the Customer’s approval.
As the Service Provider is not the project manager for the services, it is bound by an obligation of means. It shall provide the Customer, in its professional capacity, with all the advice and warnings necessary to achieve the objective sought by the Customer for the duration of its services.
The Service Provider shall send the Customer monthly invoices in arrears accompanied by a detailed description of the services performed.
The Service Provider shall invoice the Customer on the basis of time spent by its staff members in the service of the Customer and whose hourly rate varies according to their qualifications in accordance with the Purchase Order and/or the Business Proposal.
Any change in the schedule or termination of services ordered must be indicated to the Service Provider with a notice period of one week per month of the total duration of the service, but not exceeding six weeks. Any service not cancelled on time will remain due.
Subscription(s) give rise to an annual fee, the amount of which varies according to the number of users.
This fee is invoiced in advance for a period of one year unless otherwise specified in the commercial offer.
In the event that the Customer wishes to reduce the number of users for given Subscription(s), it must inform the Service Provider two months before the renewal date of the Subscription(s). The number of users may not be less than five.
In the event of an increase in the applicable scope during the Subscription(s) period (e.g. orders for licenses for new products or an increase in the number of users for existing products), a pro rata invoice will be issued by the Service Provider for the time remaining until the end of the Subscription(s) period.
Subscription(s) take effect on the date indicated in the Business Proposal or Purchase Order for a period of one year. It will be automatically renewed for successive one-year periods.
Any Party wishing to terminate its Subscription(s) must notify the other Party by registered letter with acknowledgement of receipt and with at least two months’ notice before the end of the period in question.
With the Cloud and Subscription Format the Customer purchases to the right to use the Software Packages for the duration of the Subscription.
A description of the services provided as part of the Subscription(s) can be found in Annex 1.
The purchase of licenses confers on the Customer a right to use the Software Packages for the entire duration of the copyright.
The Service Provider shall provide the Customer, within five days of ordering, with a copy of the Software Package programs under object code and the Standard Documentation. The source programs are not released to the Customer.
The Customer is aware that it must have purchased either Maintenance (or Cloud) Subscription(s) if it wishes to request the services of the Service Provider. The latter reserves the right to refuse any intervention if the Customer does not hold one of these Subscription(s) at the time of the request for intervention.
The Customer may purchase time credits that can be used for interventions not covered by the Subscription(s) purchased.
Service Card: credit of days that the Customer can use to request the implementation of Adaptations and support services, advice, etc. The Customer may pre-purchase credit in blocks of three, five or ten days.
Support Service Card: credit of hours that the Customer can use to request the implementation of minor Adaptations.
The Customer will be invoiced upon ordering. When the Customer’s time credits have been used up, the Service Provider will inform the Customer, who can then order more.
The Service Provider provides two types of training.
External training: training that takes place at the Service Provider’s premises. Training dates are scheduled at regular intervals. The Service Provider will provide the Customer with its training catalogue upon request. The cancellation or postponement of a training registration by the Customer must be indicated to the Service Provider with at least one week’s notice. Beyond this period, the Service Provider may still charge the Customer for the training.
Internal training: training that takes place at the Customer’s premises. The cancellation or postponement of a training registration by the Customer must be indicated to the Service Provider at least 48 hours in advance. Beyond this period, the Service Provider may still charge the Customer for the training.
This Annex describes the services provided by the Service Provider based on the Subscription(s) purchased.
Cloud Subscription(s) include:
- a right to use the Software Packages
- hosting of the Solution on the Service Provider’s infrastructure and access to the Solution
- implementation of backups
- Corrective Maintenance services
- provision of Software Package upgrades
The Service Provider shall provide remote access to the Solution installed on its servers to any User with an internet connection.
However, the Customer is fully aware that access to the Solution does not depend solely on the Service Provider, which remains dependent on its suppliers or those of the Customer, particularly including, albeit not exclusively, the external managers of the internet network, the publishers of third-party software integrated into the Solution or those associated with them, and the manufacturers of the servers on which the Solution is installed.
The Service Provider shall ensure an availability of 99.99% per year outside of the scheduled update time necessary for the proper functioning of the Solution.
The annual service level of 99.99% is calculated for a given year using the following formula:
(M-U) / M
M: total minutes in a given year
U: total number of minutes of unavailability in a given year
In the event of the Solution’s total or partial inaccessibility, the Service Provider shall use its best technical and human efforts to restore the service as soon as possible, if necessary by offering the Customer an alternative, temporary solution if accessibility cannot be restored in its original form within four working hours of its reported inaccessibility.
1.1.2 Disk Space
The storage space available to each Customer is not limited provided that the Customer makes reasonable use of the service and only stores data and documents directly related to its activities.
1.2.1 Backup Features
The Service Provider makes backup copies of the Customer’s data at the following intervals and with the following retention periods:
NetComputer (Efficy CRM):
- One backup per day, kept for five days
- One backup per week, kept for three weeks
- One backup per month, kept for six months
- One backup per year, kept for one year
Hisi (E-Deal CRM by Efficy) :
- Application and data are replicated in real time on 2 datacenters
- Daily back-up with a 31 days retention
1.2.2 Data Recovery
These backup copies can be sent to the Customer upon request and in a standard format (Oracle: Dump; SQL server: BKP; PostgreSQL: Dump). This will be charged at €100 excluding VAT per delivery.
The Customer has a period of 30 days from the end date of the service to request the return of the data. The Service Provider shall delete the hosted data within three months of the end of the contractual relationship.
An Anomaly is fatal if it totally prevents the use of an Essential Function of the Solution, disruptive if it requires the use of a bypass mechanism to perform the function or if it prevents the use of a non- essential function, and minor if functionality is not affected.
For Fatal Anomaly, the Customer gives the phone number of the reporting contact and the phone number of his boss. Both contacts commit for a 24/7 availability during the resolution time of the Anomaly.
Procedure if the Customer does not have an Integrator
The Customer will contact Support via the email@example.com website and categorise the Anomaly (fatal, disruptive or minor), nonetheless aware that the Service Provider may change this categorisation.
The Support team is available from 8.30am to 6.00pm.
Unless otherwise stated in the Business Proposal or Purchase Order, access to Support for a version of the Software Package is reserved for certified personnel, at least for the ‘Administration’ part of the version in question.
Sauf dispositions particulières dans la Proposition Commerciale ou Bon de Commande, l’accès au support pour une Version du Progiciel est réservé aux personnels certifiés au moins pour la partie « Administration » sur la version considérée.
Before contacting Support, the Customer shall check that the point requiring support is covered by its Subscription(s), that it is not dependent on a configuration implemented by the Customer itself, and that the answer to its question is not included in the documentation made available to it.
In each support request, the Customer shall precisely describe to the Service Provider the characteristics of the Anomaly observed and the means of reproducing it.
The Customer shall react as soon as possible to any request for information issued by the Support team. The time limits specified at 2.2 will be suspended until the Service Provider has obtained all the requested information.
Procedure if the Customer has an Integrator
The Customer will contact its Integrator, who will act as a ‘one-stop shop’ and will forward the request to the Service Provider’s Support team if the Anomaly has occurred due to the Software Package.
The Service Provider shall report Anomalies to the Support team within the following timeframes:
|Fatal Anomalies||Disruptive Anomalies||Minor Anomalies|
|Timeframe for acceptance||1h||4h||8h|
|Timeframe for correction||2 days||5 days||N/A|
Timeframe for acceptance: timeframe within which the Service Provider undertakes to mobilise staff to deal with the Anomaly.
Timeframe for correction: timeframe within which the Service Provider undertakes to correct the Anomaly or provide a workaround. The timeframe ends when the Service Provider provides the Customer or its Integrator with elements to be put into production or information required to restore the service.
These timeframes start from the moment the Anomaly has been reported by the Customer or its Integrator under the conditions defined above and from the moment the Service Provider can access the environment reproducing the problem. The timeframes are also interrupted when the Service Provider is waiting for a response from the Customer. The timeframes are expressed in working days / working hours over the Support opening times defined in the Business Proposal or Purchase Order.
Interventions are carried out remotely. In the event that the Customer does not authorise remote access or does not allow the incident to be reproduced or analysed, the Service Provider will propose an on-site intervention. Transport time and any travel and accommodation expenses will be charged to the Customer and do not affect the calculation of the time required to accept and correct the Anomaly.
The Customer shall ensure that it provides the Service Provider and no other with the only access to its systems that allows the Service Provider to intervene. It shall also ensure that such access is revoked as soon as the intervention is complete.
The Service Provider shall perform Corrective Maintenance for previous versions of the Software Package for 36 months from the release of the respective version provided that the Anomaly reported has not been corrected on a more recent version. Beyond this period, or if the Anomaly has been corrected in a more recent version, the correction of the reported Anomaly will be invoiced at the rates in effect on the day of the intervention and without any commitment to a deadline.
The Corrective Maintenance service does not include any training, adaptation, integration, assistance in using the Software Package, assistance in implementing Adaptations, advice or telephone assistance other than those described herein. In addition, Anomalies are not covered if they result from:
- use of the Solution that does not comply with the Standard Documentation or Specifications, or with the instructions given during training provided by the Service Provider;
- adaptations or interfaces with another program or software package implemented by the Customer or a third party;
- modification by the Customer of an element of its Technical Reference Environment, if the Service Provider has not formally indicated in advance that the Software Package would be compatible with this new element;
- and, more, generally a cause external to the Solution, e.g. the method of making queries, the method of making reports, server reinstallations, configuration of software external to the applications (Microsoft Office, Acrobat, etc.), network configuration on user workstations, the configuration of anti- virus software on user workstations, and more.
The services generated by such requests will be invoiced separately, on a direct billing basis based on the rates in effect on the day of the request.
This Subscription includes:
- a right to use the Software Packages
- the Corrective Maintenance service described in Article 2
- provision of Software Package upgrades
These Subscription(s) include only the Corrective Maintenance service described in Article 2.
It is offered to Customers who have purchased Software Packages and are using them in On Premise mode.
It includes the provision of Software Package upgrades.
Subscription(s) to the Subscription or Cloud formats and the Corrective Maintenance service include the possibility of enjoying Software Package upgrades free of charge without needing to purchase new licenses.
On average, these upgrades are offered once a year and include improved features and technical developments. The Service Provider will take into account regulatory changes in customer relationship management and personal data.
The implementation of an upgrade is subject to a specific pricing structure, established at the Customer’s request.
Subscription(s) to the configuration maintenance service include the possibility of enjoying an anomaly correction service that extends to the configurations implemented by the Service Provider. This subscription is subject to a specific pricing structure, established at the Customer’s request.
The subscription to the configuration maintenance service applies only to the configurations implemented by the Service Provider.
The ‘upgrades included’ service Subscription(s), also called Serenity, include the possibility of enjoying a Software Package upgrade service. This service includes the existing Adaptations. It excludes any verification tests of the upgraded software, as well as any training on new features offered.
In any event, any new adaptations or modifications of existing adaptations requested by the Customer as a result of an upgrade will also be the subject of an estimate of additional services to be invoiced to the Customer.
This subscription is subject to a specific pricing structure, established at the Customer’s request.
The subscription to the ‘upgrades included’ service applies only to the integrations and configurations implemented by the Service Provider.
In the scope of their contractual relationship, the Parties shall comply with the regulations in force regarding the processing of personal data and particularly Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 applicable from the 25 May 2018 (hereinafter ‘GDPR’).
This Annex applies when the Service Provider is a Processor of personal data. The definition of capitalised terms is the one given here or in the current regulations concerning personal data.
When processing personal data on behalf of the Customer, the Service Provider shall:
- process personal data only to the extent necessary to perform the services subscribed to by the Customer;
- process the data in accordance with the Customer’s documented instructions; if the Service Provider considers that an instruction constitutes a violation of the GDPR or any other provision of Union law or the law of the Member States relating to data protection, it shall immediately inform the Customer;
- keep a written record of the processing activities it performs on behalf of the Customer.
- Each Party shall provide the other with the name and contact information of its data protection officer if it has nominated one in accordance with Article 37 of the GDPR.
If the Service Provider is required to transfer personal data to a third country or international organisation, under the law of the Union or the law of the Member State to which it is subject, it shall inform the Customer of this legal obligation before such processing, unless the law concerned prohibits such notification on important public interest grounds.
The Service Provider shall notify the Customer in writing of any personal data breach. This notification shall be accompanied by all relevant documentation to enable the Customer to notify the relevant supervisory authority and, if necessary, the person affected by this violation.
As far as possible, the Service Provider shall help the Customer to fulfil its obligation to comply with requests for the exercise of data subjects’ rights (as listed in Chapter III of the GDPR), including recommendations for features or extensions that facilitate or even automate the processing of such requests and indicating the manual procedure to be followed. In the event that the Service Provider receives requests from the Customer’s data subjects, it shall inform the Customer in writing.
The Customer may request the Service Provider’s assistance in carrying out impact assessments and subsequently consulting with the supervisory authority.
The time spent by the Service Provider’s staff, including in the implementation of specific extensions, will be invoiced either at the rates in effect at the time of the intervention or on estimate.
The Service Provider shall implement all appropriate technical and organisational measures to protect the Customer’s personal data – taking into account the state of knowledge, the costs of implementation, the nature, scope, context and purpose of processing, and the risks to the rights and freedoms of natural persons – in order to guarantee a level of security appropriate to the probability and severity of the risk.
The measures implemented by the Service Provider to ensure the security and confidentiality of data particularly include the following measures:
Generic measures: flow security (exchange encryption): HTTPS, FTPS, IMAPS, POPS protocols; password policy; IP filtering by firewall (on request); disaster recovery plan; information system security audits; information system access management; raising staff awareness of IT security and good IT hygiene.
Cloud-specific measures: hosting in the European Union; ISO 27001- certified data centres; regular application of system component security updates; daily backups for recovery purposes in the event of a failure.
With respect to its tools, products, applications and services, the Service Provider shall take into account the principles of (i) data protection by design and (ii) data protection by default.
The Service Provider may use the services of a further subcontractor. The main subcontractors at the date of signature are as follows:
- HISI, 34 boulevard des Italiens 75009 Paris, RCS Paris 518 199 146
- Net Computer (Cloudbizz), Boulevard de l’Humanité 292, BE-1190 Forest (Belgium) – VAT BE0822883860
- Marketing Campaigns / email routing
- Flexmail NV, Jaarbeurslaan 29, bus 31, 3600 Genk (Belgium) – VAT 786.642
- MAILJET, 13-13 bis, rue de l’Aubrac 75012 Paris, RCS Paris 524 536 992 00059
The Service Provider shall inform the Customer in advance and in writing of any planned change concerning the addition or replacement of other subcontractors. This information will be made available as appropriate at https://www.efficy.com/privacy-policy/, which the Customer is invited to consult on a regular basis.
This information must clearly indicate the outsourced processing activities, and the identity and contact details of the data processor. The Customer may object to these changes within 15 days of its notification by the Service Provider, provided that these objections are based on a demonstrable risk to the security of personal data. An objection from the Customer does not prevent the Service Provider from changing subcontractors.
The Service Provider shall ensure that its subcontractors comply with the obligations set out herein and that they provide sufficient guarantees as to the implementation of appropriate technical and organisational measures to achieve compliance with regulations regarding personal data. The Service Provider shall remain fully liable to the Customer for the performance of its obligations by its subcontractors.
Cloud: see Article 1.2.2
Other: the Service Provider will destroy all personal data that is processed upon termination of its services.
The Service Provider shall provide the Customer with the necessary documentation to demonstrate its compliance with the obligations set out herein and enable audits to be conducted.
Audits will be carried out by an independent auditor. They must not disrupt the Service Provider’s activities and must not last for more than two consecutive days. The Customer shall notify the Service Provider at least 15 days before an audit is conducted.
The Customer shall bear all audit costs, as well as the cost of time spent by the Service Provider’s staff and machine time for the purposes of the audit. The conditions for conducting the audit are detailed at https://www.efficy.com/privacy-policy/.
The Customer shall process personal data only on the basis of one of the grounds listed in Article 6 of the GDPR in order to provide data subjects with information as set out in the then-current regulation and to respond to requests from data subjects when they exercise the rights granted to them by the regulation.
The Customer shall document in writing any instructions given by the Service Provider regarding the processing of personal data.
Duration of processing: Personal data is processed throughout the duration of the services provided (Subscription(s) and Projects).
Type of personal data processed: Due to the fact that the CRM Solution can be configured to suit the Customer’s needs and that the Customer is free to define the data stored in the Solution, various personal data may be processed. This generally includes first names, surnames and contact details (email, telephone, address, etc.).
Categories of data subjects: For the same reasons, there may be various categories of data subject, including customers, citizens, members, partners, employees, suppliers, and more.
Operations carried out using personal data: The nature of the operations carried out depends on the Subscription(s) and services purchased, the format of the Solution, and any additional modules offered by the Service Provider. The following table lists the main operations that may be carried out using Customers’ personal data. The complete list is available and kept up to date at https://www.efficy.com/privacy-policy/.
|Services||Operations performed using the data|
Hosting and backups
Data Protection Officer: The Service Provider has appointed a Data Protection Officer whose contact details are available at https://www.efficy.com/privacy-policy/.
Efficy, VAT 0875.895.449, Rue Colonel Bourg 122, 1140 Brussels, Belgium
E-Deal, VAT 55 420 688 400, Rue Périer 41, 92120 Montrouge, France
Efficy France, VAT 28 440770204, Rue Périer 41, 92120 Montrouge, France
Efficy Luxembourg, TVA 26931602, Rue d’Arlon 4, 8399 Windhof, Luxembourg
Efficy Suisse, VAT 536794, Rue de Lausanne 37, CH-1201 Geneva, Switzerland
Efficy Deutschland, VAT DE312539535, Schumannstrasse 27, 60325 Frankfurt, Germany
Efficy Nederland, VAT 809374912B01, Atoomweg 63, 3542 AA Utrecht, The Netherlands
This Annex supplements the General Terms and Conditions of Sale with specific provisions depending on the CUSTOMER’S place of establishment.
(Article 4 General Terms and Conditions of Sale)
The reference index is the SYNTEC index.
(Article 4 General Terms and Conditions of Sale)
In accordance with Articles L 441-6 and D 441-5 of the French Commercial Code, in the event of late payment, the costs incurred for the recovery of the debt will give rise to a fixed penalty of EUR 40. If the recovery costs incurred exceed the amount of this fixed penalty, the Service Provider may request additional compensation upon justification.
(Article 14 General Terms and Conditions of Sale)
The contractual documents are subject to French law.
In the event of a dispute, express jurisdiction is vested in the Commercial Court of PARIS, notwithstanding multiple defendants or warranty claims.
(Article 4 General Terms and Conditions of Sale)
The reference index is the AGORIA index.
(Article 14 General Terms and Conditions of Sale)
The contractual documents are governed by Belgian law and, in particular, by the Law of 2 August 2002 on combatting late payment in commercial transactions.
In the event of a dispute, express jurisdiction is vested in the courts of Brussels.