Terms & Conditions of Sale

 

Preamble

JCS WEB, under the business name “SMART TRIBUNE”, a simplified joint-stock company, with a capital of 24,000 euros, registered in the Paris Trade and Companies Register, under the number 534 318 647, whose registered office located at  56 rue Saint George 75009 Paris, FRANCE, represented by Mr. Jérémy GALLEMARD in his capacity as Chairman, hereinafter referred to as “SMART TRIBUNE” or “Service provider”.

 

SMART TRIBUNE offers its clients, mainly professionals (hereinafter referred to as the “Client(s)”) a range of predictive Selfcare solutions to improve the customer experience.

 

The Client declares having obtained all the information necessary for the use of SMART TRIBUNE’s solutions and services.

1. Definitions

Within the framework of these Terms & Conditions of Sale, the terms below, in their plural or singular form and beginning with a capital letter will have the following meaning:

 

Access rights: refer to the confidential login and password allowing the Client to access the Interface.

 

Additional Services: refer to the support services and recommendations for optimising optional Solutions not included in the Subscription linked to the Solutions set up by SMART TRIBUNE.

 

Administration Interface: refers to the online page (web, mobile, mobile application) accessible with Access Rights, allowing the Client to access the Solution to consult the data processed there, to modify, correct, delete, etc the said data.

 

Client data: refers to, without this list being exhaustive, any data, database, urls, server environments, information necessary for the drafting of the specifications related to the project, personal data such as Smart Tribune Client data (surname/first names/Emails) used to facilitate the Clients connection to their Administration Interface but also information transmitted by the Client for the integration into the Solution, i.e. questions/answers and multiple information allowing to accompany the End Users in their Internet journey and more particularly the Client’s websites and web applications.

 

Documentation: means any accompanying document, or assistance document elaborated by Smart Tribune for the Client within the framework of the installation of the Solutions.

 

End Users: refer to any Internet user using the Solution on the Client’s Website or application.

 

Online Launch of the Solution: consists of implementing the Solution on the Client’s Website and/or application.

 

Parties: SMART TRIBUNE and the Client are collectively referred to as the “Parties” or individually as the “Party”.

 

Quote: refers to the offer made by Smart Tribune to the Client.

 

Saas: acronym for “Software as a service”, refers to the Smart Tribune Solution hosted by its provider and made available to the Client via a Subscription.

 

Services: refer to all the services carried out by SMART TRIBUNE for the Client, including Solutions and Additional Services.

 

Smart Tribune Solutions or Solutions: refer to the selfcare services such as Smart FAQ, Smart Push, Smart Bot, Smart Communities, Smart Knowledge, based on a SaaS type technical solution that SMART TRIBUNE has developed and which it operates, maintains and provides.

 

Snippets: refer to the computer code provided by the Service Provider to the Client, used as part of the Solution and enabling the integration of the Solution into the Client’s information system. It is implemented by the Client in the audited medium (website, application, other) in order to display the device(s) to End Users. The Service Provider will not have the possibility to implement or remove this Snippet on the Client’s Websites.

 

Subscription: refers to the subscription to the Solution(s) to which the Client has subscribed.

Website: refers to the Client’s website owned by the Client

 

2. Purpose

 

This document constitutes the General Terms and Conditions of Sale (hereafter the “GTCS”) applicable to all of SMART TRIBUNE’s Services.

3. Contractual Documents and Enforceability

 

Contractual documents are defined in descending order of priority:

 

  • Any special conditions and related annexes
  • The Quotation drawn up by SMART TRIBUNE and any related annexes
  • These General Terms and Conditions of Sale and related annexes

 

In case of contradiction between documents of different nature or of different rank, it is expressly agreed that the provisions contained in the higher ranking document shall prevail for the obligations in conflict of interpretation.

 

Together, these documents form an inseparable contract (hereinafter the “Contract”), which cancels and replaces all contracts with a similar purpose that may have existed between the Parties.

 

The provisions of the listed documents express the entire agreement concluded between the Parties relating to the purpose of the Contract; they take precedence over any proposal, exchange of letters prior to its signature, as well as over any other provision contained in documents exchanged between the Parties and relating to the purpose of the Contract.

 

In this respect, any reference to a purchase order number issued by the Client may not be interpreted as acceptance of conditions other than these terms and conditions of the Contract and only constitutes a management ease granted to the Client for its supplier invoicing.

 

It is hereby specified that the Client’s general terms and conditions of purchase, as well as any other Client’s purchase documents, including a prospectus, catalogue and purchase voucher are excluded and will not apply between the Parties.

 

By signing the Quotation and, where applicable, the special conditions, the Client orders the Solutions and Additional Services indicated (hereinafter referred to as the “Order”).

 

The Solutions will be granted in return for an annual Subscription, subject to a minimum of 12 months, unless special provisions are agreed between the Parties.

 

Any other order for Solutions or Additional Services placed by the Client during the term of this Contract will be materialised by the signature of a new Quotation.

 

Depending on the Solution and the Service ordered, the Service may be performed remotely, at the Service Provider’s premises or at the Client’s premises.

 

Any travel expenses will be charged to the Client after prior acceptance of the estimated costs.

 

Additional Services vary according to the Client’s needs and are presented in the Quotation as well as the financial conditions.

 

For each Order, the Client is considered to have been fully informed that acceptance of these General Terms and Conditions of Sale does not require their handwritten signature but results from the signature of the Quotation and, where applicable, the associated contractual documents.

 

The applicable General Terms and Conditions of Sale are, as a general rule, those in force at the time of the Order. This version takes precedence over any other version subsequently modified, with the exception of modifications taking into account legal and regulatory changes or non-substantial modifications, which apply immediately to any current Order.

 

The Contract may only be modified by an amendment signed by the Parties. Subsequent amendments form part of the Contract and are subject to all the provisions governing it.

 

The fact that one of the Parties does not invoke or delays in invoking the application of a clause of the Contract shall not be interpreted as a waiver of the right to invoke this clause in the future.

 

If any provision of these General Terms and Conditions of Sale and of the Contract in general were to be deemed null and void or inapplicable, in particular with regard to a rule of law, it shall be regarded as unwritten, but this shall not result in the nullity of the General Terms and Conditions of Sale and of the Contract. In the event that this is an essential provision, the Parties will negotiate in good faith an amendment to the Contract.

4. Duration

 

The Contract applies as of the date of signature of the Quotation and remains in force for the time required to configure the Solution, plus the duration of the Subscription in accordance with the terms and conditions defined below.

 

The duration of the configuration of the Solution(s) and the date of Online Publication will be indicated on a provisional basis in the Quotation and confirmed at the end of the launching meeting organized between SMART TRIBUNE and the Client by sending a meeting report by email to the Client.

 

The Subscription to the Solution is taken out for a period of one (1) year from the date of the launch meeting with the Client.

 

The Subscription is renewable twice (2) by automatic renewal unless terminated by either Party by sending a registered letter with acknowledgement of receipt thirty (30) days before the anniversary date of the Subscription.

 

Subject to the prior agreement of the Parties regarding a possible renewal, the Contract will automatically be terminated at the end of the renewal periods.

 

5. Provision of Solutions and Additional Services

 

5.1 Solution Design and Customization Phases

 

The Client undertakes to transmit according to the schedule agreed with SMART TRIBUNE during the project launching meeting, the various documents and information necessary for the design of the Solution by Smart Tribune teams.

 

Depending on the scope of the Client’s project and technologies, the realization of the project may consist of different stages (non-exhaustive list):

 

“Design phase”: This phase consists of recovering Client Data, writing the knowledge base and/or prioritizing it, creating wireframes and/or graphic mock-ups. Validation reports will be signed throughout this phase. The successful completion of this stage of the project depends on the Client’s ability to provide all of the required information within the given timeframe.

 

“Development phase”: This is the phase during which Smart Tribune’s teams will carry out all the developments, customization and settings necessary for the implementation of the Solution according to what has been defined and validated during the preliminary design phase.

 

“Acceptance testing phase”: This is the phase during which the Client carries out the acceptance testing of the Solution, following the delivery by the Smart Tribune teams of the Solution to the Client’s pre-production environment, verifying that the delivery corresponds to the elements defined and validated during the Design Phase. Smart Tribune will then carry out the qualification of the acceptance test results and the necessary corrections, whereupon Smart Tribune will deliver a new version of the Solution to the Client. The signature of an Acceptance Report will close this phase and is prior to the production of the Solution.

 

This is followed by the Online Launch as defined in Article 1 and described in Article 5.2.

 

SMART TRIBUNE will implement all the necessary means in order to respect the provisional schedule defined during the launch meeting. SMART TRIBUNE cannot be held responsible for a delay in the schedule due to the Client (for example in the case of non-transmission of Client Data essential to the completion of the different phases mentioned above, or lack of collaboration on the part of the Client essential to the smooth running of these stages). The Subscription will start on the scheduled date unless the Client is responsible for the delay.

 

5.2 Installing the Solution and Online Launch

 

The Solution is integrated on the Client’s site by means of a Code Snippet to be added on the page(s) on which the Solution is to appear.

 

The Snippet(s) will be transmitted by SMART TRIBUNE to the Client prior to the Online Launch in order to integrate them and check their proper functioning.

 

The integration of the Solution into third party applications is also possible, depending on the Solution, provided that these are accessible via an existing channel such as Facebook messenger, Slack, Skype, etc.

 

The Solution is deemed delivered as soon as the Acceptance Report is signed.

 

The Client or any person duly authorised by the Client, is exclusively responsible for implementing, configuring and administrating the Snippets, directly or via a management system of Snippets – third parties or included in the Solution – on the elements (pages etc) of the Site(s) for which it has taken out the Subscription. Only the elements incorporating the Snippet will allow the display of the Solution.

 

For technical and liability reasons, SMART TRIBUNE is not authorised and does not have the physical capacity to intervene directly on the Client’s Site(s) to implement, administer and/or remove the Snippets. Consequently SMART TRIBUNE cannot be held responsible in case of a defective implementation, administration and/or alteration of the Snippets.

 

Access Rights to the Administration Interface are automatically sent to the Client by email when its “administrator employee” account is created. This administrator has the possibility to create other employee accounts for its collaborators who will also receive their login information by email.

 

These Access Rights are placed under the security of the Client, who must take all necessary security measures to ensure that they are not known to third parties or used by unauthorised persons.

 

It is expressly agreed that in case of multiple Access Rights, the Lead Administrator is responsible for the management of Access Rights (personalized access), domains, roles and management and authorisation rights.

 

In case of loss of Access Rights, the Client can obtain new codes from SMART TRIBUNE, after having formulated the request by email.

 

Furthermore, the Client undertakes to comply with all technical instructions that may be issued by SMART TRIBUNE and to manage them properly.

6. Security/Internet Network

SMART TRIBUNE undertakes to implement and maintain a security policy that complies with the standards of the profession in order to ensure the physical and logical security of the Solution against possible unauthorised access. To this end, SMART TRIBUNE will implement at its sole discretion any appropriate measures. However, the Client acknowledges that the confidentiality, integrity and accessibility of the Data put online on the Solution and/or used within the framework of the Solutions, depends in part on the measures that it has itself implemented to ensure the physical and logical security of its equipment, systems or networks.

 

In this respect, the Client acknowledges in particular:

 

– that data transmissions over the Internet are relatively unreliable from a technical point of view, since they circulate on heterogeneous networks with different characteristics and technical capacities, which are sometimes saturated at certain times of the day,

 

– that specific networks within the Internet may depend on special contracts and may be subject to access restrictions,

 

– that data circulating on the Internet is not protected against possible misappropriation.

 

7. Use of the Solution, Maintenance and Backup

 

7.1 Use

 

The Solution is granted for use on the Client’s Website(s) whose domain name(s) is (are) its (their) direct property. In the event that the Client would like to use the Solution on one or several Website(s) without being the publisher and owner of the said Website(s), the Client guarantees that SMART TRIBUNE has been duly authorised by the owner to carry out the following actions:

 

– add/remove one or more Snippet(s) within the Site – create any necessary pages

 

– add any rules allowing the optimisation of natural referencing

 

The Client undertakes to provide proof of this at SMART TRIBUNE’s first request.

 

7.2 Maintenance

 

SMART TRIBUNE reserves the right to suspend access to the Solution.

 

(i) for the purposes of the maintenance of the Solution, including updates

 

(ii) for the improvement of the Service and the installation of new functionalities

 

(iii) to verify the proper functioning and use of the Solution

 

(iv) and in the event of a failure or a serious threat of a failure

 

In the event of an intervention likely to significantly affect the availability of the Solution, SMART TRIBUNE undertakes to inform the Client in advance as soon as possible by email, except in the case of an unplanned urgent operation, to limit the duration of unavailability to the strict minimum required for the purposes of the intervention, and, whenever possible, to group the interventions together.

 

7.3 Back-up

 

Smart Tribune undertakes to provide its best efforts to ensure the conservation of the copies of the Client’s Data made periodically, and undertakes to communicate them according to the agreement, in particular financial, of the Parties. For the purposes of the Contract, the information contained in such copies shall be considered Confidential Information.

 

However, the integrity of the copied information cannot be guaranteed, and SMART TRIBUNE cannot be held responsible if one or more of the original information has been altered or corrupted prior to copying.

8. Processing of Defects

 

The processing of defects shall be done in accordance with Annex 1 hereto. 

9. Client Obligations

 

The Client undertakes:

 

  • to provide SMART TRIBUNE with the information necessary to enable the latter to perform the Service in the best conditions, by expressing its needs clearly and precisely and by informing SMART TRIBUNE without delay of any event, modification likely to affect the services or their conditions of performance.
  • to give SMART TRIBUNE all useful and necessary information for the good design and integration of the Solution.
  • to pay to SMART TRIBUNE the price of the Services within the agreed timeframe and conditions.
  • to provide a valid billing address and notify SMART TRIBUNE of any changes to its address or method of payment.
  • to maintain the confidentiality of Access Rights.
  • not to develop or market services or products likely to compete with SMART TRIBUNE and not to provide a competitor with information likely to benefit them.
  • to inform its Internet users of their rights relating to the protection of their personal data as data controller and in accordance with the General Data Protection Regulations. (Article 19 and Annex 2.)

 

10. Smart Tribune Obligations

 

SMART TRIBUNE undertakes:

 

  • to implement the human resources necessary for the Service,
  • to advise the Client on all matters relating to the Service,
  • to inform the Client of any elements that appear likely to compromise the proper

 execution of the Service.

  • to transfer to the Client its Access Rights as part of the provision of the Solution,
  • to transfer to the Client any Documentation enabling the installation of the Solution.

 

SMART TRIBUNE undertakes to deliver the Solution free of any defect and to proceed to regular quality controls. In the event that the Solution does not correspond to the Services described in the Contract and/or does not comply with the best practices, SMART TRIBUNE undertakes to make all useful corrections as soon as possible and to make all necessary backups at its own cost and expense.

 

SMART TRIBUNE will do  its best efforts to:

– ensure permanent monitoring of the Data as well as of the technical means it uses in the execution of the Services, relating in particular to access, storage or use of the Data.

– ensure physical and logical protection of the Data and any other information entrusted to  SMART TRIBUNE by the Client by implementing the necessary technical means against the risks of disclosure, destruction, corruption, hacking and misappropriation by an unauthorised third party.

 

As part of its consulting obligation, SMART TRIBUNE reserves the right to consult the Client’s interface to recommend any improvement in the use of the Solution.

11. Financial Conditions

 

11.1 Price

 

The prices relating to the order of Subscriptions and Optional Additional Services are those indicated in the Quotation.

 

SMART TRIBUNE indicates the total amount of the order excluding and including VAT in euros. The prices are displayed in euros, in amounts excluding and including VAT, and are those applicable on the day of the Quotation.

 

The prices are defined exclusive of taxes and increased by taxes, in particular, when applicable, by the VAT in force on the day of the provision of services. All other taxes not included in the initial order will be paid by the Client. Pursuant to Directive (EC) No. 2008/8/EC of 12 February 2008, transposed into French law by Article 102 of Law No. 2009-1673 of 30 December 2009 on finance for 2010, the rules applicable to VAT on supplies of services are as follows:

 

– If the Client is domiciled in France, French VAT is applied;

 

– If the Client is domiciled in a country of the European Union and has an intra-community VAT number, no VAT is applied; if the Client does not have an intra-community VAT number, then French VAT is applied;

 

  • If the Client is domiciled abroad, outside the territory of the European Union, no VAT is applied. 

 

Any change in the rate applicable to VAT will automatically be applied to the prices indicated.

SMART TRIBUNE and the Client agree that the provisions of article 1195 of the French Civil Code do not apply to their contractual relationship. Consequently, a change in circumstances unforeseeable at the time of the conclusion of the contract will not change the agreed price unless expressly agreed by both Parties.

 

11.2 Price Review Provision

 

On each Subscription anniversary date, SMART TRIBUNE reserves the right to revise the annual price according to the following formula taking into account the SYNTEC index:

 

P1 = P0 x (S1/S0)

 

P1: revised price

 

P0: original contract price or last revised price

 

S0: SYNTEC reference index used on the original contractual date or at the time of the last revision

 

S1: last index published on the revision date

 

This monthly index has been recognised by the Ministry of the Economy and Finance since March 11, 1974.

 

In this case, SMART TRIBUNE will notify the Client of the new rates by email at least ninety (90) days before the end of the current period. After notification of the new rates, the Client will have the option of terminating the Contract by registered letter with acknowledgement of receipt within thirty (30) days. In the absence of notification by the CLIENT, the new rates will be deemed to have been accepted by the CLIENT and will apply from the date of the renewal of the Contract.

 

11.3 Payment and Invoicing

 

Unless specific invoicing and payment conditions are provided for in the Quotation, it is expressly agreed that payment will be made as follows:

 

  • 50% of the total amount at the signature of the Contract

 

  • 50% at the date of delivery

 

SMART TRIBUNE reserves in particular the right to invoice a deposit and/or to apply a payment schedule as soon as it has been agreed with the Client in the Quotation or the special conditions of sale.

 

Unless otherwise agreed between the Client and SMART TRIBUNE in the Quotation, invoices are payable within thirty (30) days of the invoice date and without discount.

Any dispute relating to the invoice following its receipt by the Client must be made, in writing, within fifteen (15) days following the date of the invoice to the following address:

 

Smart Tribune

Client Service

56 Rue Saint Georges, 75009 Paris, France

 

After this period, the invoice will be deemed accepted by the Client, and no subsequent dispute will be taken into account by SMART TRIBUNE.

 

Invoices are payable:

 

– by bank transfer for the benefit of JCS WEB with the following banking details:

 

ACCOUNT HOLDER: SAS JCS WEB

 

DOMICILIATION: PARIS LOUVRE (00806)

 

RIB: 30004 00806 00010171027 07

 

IBAN: FR76 3000 4008 0600 0101 7102 707

 

BIC: BNPAFRPPPOP

 

– by check issued to: JCS Web

 

11.4 Penalties

 

Failure by the Client to pay the sums due on the due date shall automatically and without prior formal notice, by the mere fact of the expiry of the term, result in the immediate payment of the sums due as well as late payment interests equal to the interest rate applied by the European Central Bank to its most recent refinancing operation increased by ten (10) percentage points, on the date on which the debt is due and payable.

 

Any professional in a situation of late payment automatically becomes a debtor, with regard to SMART TRIBUNE, in addition to late payment penalties, of a fixed indemnity for collection costs of forty (40) euros in application of articles L 441-10 and D441-5 of the French Commercial Code. 

 

SMART TRIBUNE reserves the right to claim additional compensation by justifying having spent more than forty (40) euros in recovery costs.

 

12. Termination

12.1 Termination for convenience

 

The Client remains free to unilaterally terminate the Contract at the end of the Initial Period or each renewal period by notifying the Service Provider by registered letter with acknowledgement of receipt, thirty (30) days before the end of the current period. Termination does not have to be justified.

 

The Client undertakes to remove the Snippets within a period of 30 (thirty) days following the date of termination of the Subscription. Failing this, the Contract will be tacitly renewed under the conditions set out in Article 4 “Duration”.

 

The Service Provider remains free to unilaterally terminate the Contract at the end of the initial period or of each renewal period by notifying the Client by registered letter with acknowledgement of receipt three (3) months before the end of the current period. Termination of the Contract does not have to be justified.

 

12.2 Termination for Default

 

Without prejudice to all other rights and actions, in the event of non-performance by either of the Parties of any of its obligations under the Contract, the non-defaulting Party may automatically terminate the Contract thirty (30) calendar days after sending a formal notice by Registered Letter with Acknowledgement of Receipt, which has remained unsuccessful in whole or in part.

 

Notwithstanding the previous clause, Smart Tribune will have the right to automatically terminate the Contract for non-payment after formal notice remained without effect for fifteen (15) calendar days.

 

However, until the Snippets are withdrawn by the Client, the Client remains liable for the price of the Subscription to the Solution in accordance with the defined pricing conditions.

 

12.3 Effect of Termination

 

At the end of the Contract, access to the Administration Interface of the Solution is deactivated for the Client. Therefore, the Client can no longer create, modify or export its content. The Client may obtain within two (2) months after the end of the Contract, a partial or total extraction of the Processed Data. This restitution can be the subject of a quotation prepared according to the type of data expected and also according to the volume of data to be processed, the periods and the criteria of analysis. If the Client does not exercise its right within the required period, the Service Provider undertakes to delete all of the Client’s data. This deletion will be definitive and will not allow even partial restitution or reconstitution of the Data.

 

Notwithstanding the expiration or termination of the Contract, for any reason whatsoever, the provisions of Articles 15, 17, 21 will continue to apply.

13. Liability

 

SMART TRIBUNE is only bound by an obligation of means  in the execution of this Contract.

 

The Service Provider’s liability is limited to direct damage to the exclusion of any indirect damage such as, but not limited to, business interruption, commercial prejudice, loss of customers, loss of orders, loss of profit or damage to brand image. The Service Provider’s total cumulative liability shall not exceed the lowest of the following amounts:

 

– either the annual value of the Contract

 

– or 50,000 euros

 

The Service Provider cannot be held liable:

 

in case of force majeure as provided for in the “Force Majeure” provision.

– in case of unavailability of the Solutions if these problems are related to circumstances that do not depend on the Service Provider’s own Internet network

– for any technical problem on the Client’s own hardware and/or internet network

– in case of a faulty implementation of the Snippets and/or an alteration of the Snippets

– in case of misadministration of the Snippets

– in case of an interruption scheduled by the Service Provider as part of maintenance and, in particular, corrective and/or upgradeable updates of the Solution(s)

– in case of a breach by the Client of this Contract and/or in the event that the Client would not use the Solutions in accordance with the instructions and documentation provided by Smart Tribune.

 

14.Intellectual Property and Commercial References

 

SMART TRIBUNE designed each of the Solutions and in general the associated base and remains the owner of the intellectual property rights attached to the Solutions and their technologies.

In this context, SMART TRIBUNE grants the Client a right to use the Solutions base, without granting any property right on the said base in itself, i.e. the container.

The Client therefore refrains from decoding, decompiling, adapting, copying, dismantling the base of the Solution and, in general, from altering the base in any way whatsoever.

The Client undertakes not to infringe, or question in any way whatsoever, the rights of SMART TRIBUNE on its Solutions, the associated databases, any Documentation and its website.

 

The Client shall also refrain from copying the Documentation at its disposal, except for its own needs to manipulate and/or use the database in a way that could directly or indirectly compete with the Service Provider.

SMART TRIBUNE remains the owner of the intellectual property rights attached to the SMART TRIBUNE database which assembles the Client’s Data in an original way, orders it, enriches it by specific processing and significant reconciliations. In general, SMART TRIBUNE retains all intellectual property rights and titles relating to its Solutions and technology.

The Client is the sole owner of the Data contained in the database implemented in the Solution and holder of the intellectual property rights attached thereto.

The Client authorises SMART TRIBUNE to mention its name and use its logo as a commercial reference on any support useful for its prospection and in particular by the insertion of a hyperlink on its Website and on its commercial presentation.

 

15. Non-solicitation

 

The Client waives the right to hire or arrange for the hiring of any of the Service Provider’s employees, directly or through an intermediary, regardless of their position and even if the initial request is made by the latter.

 

This waiver is valid for the entire duration of the Contract plus one year from the end of the Contract.

 

In the event that the Client fails to comply with this provision, and unless the Service Provider expressly agrees otherwise in writing, the Client shall automatically owe the Service Provider an irreducible lump-sum compensation equal to twelve (12) times the value of the last gross monthly salary received by the employee, without prejudice to the Service Provider’s right to claim additional damages.

16.Insurance

 

Each of the parties insures itself against the pecuniary consequences of damages it may suffer and the civil liability it may incur for SMART TRIBUNE’s products and services.

 

Thus, the Client undertakes to take out an insurance policy with any notoriously solvent company of its choice, guaranteeing its own damages, as well as its civil liability in order to cover all material, bodily and/or immaterial damages likely to be caused directly or indirectly to SMART TRIBUNE and/or third parties, as well as any special risks linked to its activity, for the entire duration of the Contract. The events and limits of the guarantee will be indicated on the insurance certificate and must be at least equivalent to the amounts of guarantee practised by the Client’s profession. The Client’s insurance certificate against all the risks considered in this article will be communicated within fifteen (15) days.

 

The Client will provide with each new Order, as well as upon expiry of the relevant policy(ies), and at SMART TRIBUNE’s first request, a certificate of insurance establishing that the policy is in force and recalling the guarantees from which it benefits, the amount guaranteed per claim and the Client’s activities.

 

If these certificates are not presented, SMART TRIBUNE reserves the right to demand from the Client the payment of a penalty equal to five hundred (500) euros per day of delay, at the end of a period of thirty (30) days following a formal notice sent by SMART TRIBUNE by registered letter with acknowledgement of receipt, which remains unsuccessful.

 

Failure to comply with the provisions of this paragraph may result in the termination of the contract to the detriment of the Client.

 

In the event of cancellation of the policies, for any reason whatsoever, the Client undertakes to immediately notify SMART TRIBUNE, to pay the premiums still owed to its insurer within the time limits provided for in the contract and, in general, to take all necessary measures to maintain the guarantees of the insurance contract in force. Under no circumstances may the Client invoke the existence of insurance policies, insufficient coverage or deductibles or exclusions, or more generally any difficulty whatsoever that may be opposed to it by the insurer in the event of a claim in order to obtain compensation for its damages or a limitation of its liability.

 

17.Confidentiality

 

Each Party undertakes to keep confidential for the duration of the Contract and for two (2) years after its expiry, the terms of the Contract that binds them and in particular the elements relating to invoicing as well as any confidential information exchanged in this context.

 

Confidential Information means: any information, process and/or result, held by one of the Parties and transmitted to the other, whatever the medium used or the form of such transmission (written, oral or visual), and concerning, without this list being exhaustive, patents, trademarks, software, know-how, trade secrets, plans, models, designs, specifications, minutes of meetings, studies, development prospects identified in writing or orally as being confidential.

 

The Party receiving the Confidential Information undertakes, unless expressly authorised in writing by the other Party:

 

(i) to keep Confidential Information confidential by taking all useful and reasonable physical, logical and organisational security measures

 

(ii) not to disclose Confidential Information to any agent, subcontractor or third party

 

(iii) not to use Confidential Information for purposes other than those for which the Confidential Information was disclosed

 

(iv) to make every effort to maintain the confidentiality of such Confidential Information among its personnel entitled to know such Confidential Information

 

The above commitments, obligations and restrictions do not apply:

 

  • to Information that is or would enter the public domain without infringement by the Receiving Party;

 

  • to Information of which the receiving Party could prove to have been aware prior to its communication by the other Party;

 

  • to Information which the Receiving Party can prove to have independently developed

 

  • to Information the disclosure of which is required by law, regulation, legal or administrative process, provided, however, that the receiving Party so notifies the disclosing Party as soon as possible and if possible before disclosure so that the latter may request the confidential treatment or protection of such information.

 

The Contract is considered Confidential Information.

 

18. Force Majeure

The parties shall not be liable for delays or failure to perform this Contract caused by an event of force majeure as defined by Article 1218 of the French Civil Code. Force majeure shall only result in the suspension of the Contract for the period during which it produces its effects. The Party intending to prevail itself shall inform the other Party in writing. However, the suspension of the Contract may not exceed a period of one (1) month from receipt of the written notification. At the end of this period, the most diligent Party may legally terminate the Contract without notice or compensation with immediate effect by informing the other Party in writing.

 

Termination shall take effect upon receipt of the notification and shall be in accordance with the conditions set out in Provision 12.3.

19. Personal Data

 

Smart Tribune expressly reminds the strategic and strictly confidential nature of all personal data collected and processed within the framework of the contractual relationship. Consequently, the Parties acknowledge that all such data and files are subject to compliance with Law No. 78-17 of 6 January 1978 “Informatique et libertés” (French Data Protection Act) as amended, and the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (GDPR ) and are subject to privacy and professional secrecy.

 

The Parties undertake to put in place all necessary procedures to ensure confidentiality and the best possible security.

 

In order to execute this Contract, SMART TRIBUNE is required to collect and process personal data from users of the Solution, natural persons, on behalf of and on the instructions of the Client. Therefore, the Client is considered to be the data controller and SMART TRIBUNE to be the subcontractor within the meaning of the GDPR. The obligations of the Parties are expressly set out in Annex 2 hereto.

 

SMART TRIBUNE’s commitments as data controller (in particular for the processing of its Clients’ personal data) and the rights of the persons concerned are set out in its Personal Data Protection Agreement available below.

20. Transfer – Change of Control

 

The Contract is concluded on an intuitu personae basis, in consideration of the Client and its characteristics without which SMART TRIBUNE would not have concluded this Contract. Consequently, the Client may not transfer all or part of the rights and obligations arising from the Contract without the prior written consent of SMART TRIBUNE. Failing this, the Client remains personally liable both to SMART TRIBUNE and to third parties, and SMART TRIBUNE reserves the right to terminate the Contract.

 

Any change of control, direct or indirect, of the Client’s share capital will be treated as a transfer of the Contract.

 

21. Applicable Law and Competent Courts

 

These General Terms and Conditions of Sale are governed by French Law.

 

In the event of a difference of opinion between the Parties relating to the formation, interpretation and/or performance of the Contract, the Parties shall endeavour, as far as possible, to find an amicable solution between them or to seek mediation. 

 

Disputes that cannot be settled amicably shall be brought before the competent court in Paris, France.

 

22. Language

 

The contractual documents including these General Terms and Conditions of Sale have been drafted in French. Only the french version is binding upon the Parties, whatever the translation made by the Parties.

Annex 1: Treatment of Defect

 

1/Definitions

 

Defect: refers to any malfunction of the Solution as provided by the Service Provider without configuration.

 

Fatal Defect means a Defect that causes operational shutdowns and/or makes normal use of the Solution impossible, and which cannot be overcome by a bypass solution. A non-exhaustive list of defects considered to be Fatal Defect is provided in the annex.

 

Major Defect means any Defect that does not prevent the use of the Computer Solution but which causes a deterioration of the normal use of the Solution, and which may be the subject of a bypass solution. 

 

Minor Defect means any Defect allowing the normal use of the Computer Solution in all its functionalities to continue; and/or any other Defect that does not fall into one of the categories defined above.

 

Availability Time: is defined as the set of moments when SMART TRIBUNE Services are available and accessible by authorised users and are functioning properly to carry out the activity.

 

Unavailability Time: is defined as all the moments when the SMART TRIBUNE Services are not available and accessible by the authorised users, to allow the proper functioning of the activity. The Unavailability Times do not include the Exception Times defined below.

 

Exception Times: include times when users cannot access the SMART TRIBUNE Services due to: (i) Scheduled Maintenance (as defined below); (ii) Force Majeure (as defined in the Contract); (iii) problems with the Client’s hardware, network connectivity or third-party software; and/or (iii) misuse of the SMART TRIBUNE Services.

 

Scheduled maintenance: is defined as any major maintenance operation. Prior to any Scheduled Maintenance, the Client will receive a forty-eight (48) hours notice. The Client may request SMART TRIBUNE to postpone any Scheduled Maintenance, which SMART TRIBUNE may do at its sole discretion.

 

2/Correction of Defects

SMART TRIBUNE will do its best efforts to resolve Defects under the following conditions:

 

Fatal DefectMajor DefectMinor Defect
Processing time4 business hours8 business hours3 business days
Bypass1 business day2 business daysN/A
Resolution2 business days5 business daysN/A

 

Failure to comply with the resolution deadlines provided for in this article may result in the application of penalties as follows:

 

– 5% of the monthly Contract amount for each day of delay for Fatal Defects.

 

– 3% of the monthly Contract amount per day of delay for Major Defects. These penalties apply in addition to the penalties relating to the availability rate.

 

Penalties are applicable automatically.

 

3/Availability of the Solution

 

Service Level Agreement guarantee. As long as the Client does not violate the terms of the Contract, SMART TRIBUNE guarantees (the “SLA Guarantee”) that the System Availability for SMART TRIBUNE Solutions, as calculated below, will not be less than 99.50% (the “SLA Target”).

 

Availability rate: ( (n – y)/n ) x 100

 

Where:

 

“n” is the total number of hours in a given calendar month, excluding Times of Unavailability and Exception Times.

 

And

 

“y” is the total number of hours of Unavailability Time in the same given calendar month excluding Exception Periods.

 

For months where the supply of services begins on a date other than the first day of the month, the calculation of the variables will be calculated pro rata.

 

SLA Guarantee Repair Credit. In the event that SMART TRIBUNE does not comply with the SLA Guarantee, the Client may benefit from the application of penalties as follows:

 

  • First month of availability below the SLA Target: 10% of the amount of the Subscription paid for the given month for the Smart Tribune Services.

 

  • Second consecutive month: 15% of the Subscription paid for the given month for Smart Tribune Services.

 

  • Third consecutive month: 20% of the Subscription paid for the given month for Smart Tribune Services.

 

  • Fourth consecutive month: 30% of the Subscription paid for the given month for Smart Tribune Services.

 

  • Fifth consecutive month: 50% of the Subscription paid for the given month for Smart Tribune Services.

 

In order to obtain the credits hereunder, the Client must make a written request to SMART TRIBUNE within thirty (30) days following the end of the relevant month.

 

Annex 2: Agreement on the Protection of Personal Data

 

 

BETWEEN,

 

JCS WEB, under the business name “SMART TRIBUNE” (commercial name), is a simplified joint stock company, with a capital of 24,000 euros, registered with the Paris Trade and Companies Registry, under the number 534 318 647, whose head office located at 56 rue saint george 75009 Paris, represented by Mr Jeremy GALLEMARD in his capacity as Chairman.

 

(hereinafter referred to as “the Subcontractor”) on the one hand,

 

AND

 

The Client, (hereinafter referred to as the “Data Controller”)

 

JCS WEB and the Client are hereinafter referred to collectively as the “Parties” and individually as a “Party”.

 

Preamble

 

This Annex applies to the processing of personal data carried out by Smart Tribune and the Client in the context of the provision by SMART TRIBUNE of a selfcare service in SaaS. This document is an independent document aimed at defining the respective obligations of the Parties in order to ensure compliance with the legislation in force in terms of the processing of personal data and respect for privacy.

 1.Purpose

 

The purpose of this annex is to define the conditions under which the Subcontractor undertakes to carry out on behalf of the Data Controller the personal data processing operations defined below and the Client’s obligations in this context.

 

In the context of their contractual relations, the Parties undertake to comply with the regulations in force applicable to the processing of personal data and, in particular, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 applicable as of 25 May 2018 (hereinafter referred to as the “European General Data Protection Regulation” or “GDPR”).

 

 2.Description of the Subcontracting Processing Operation

 

The Subcontractor is required to process on behalf of the Data controller the personal data necessary to provide the following service(s):

 

Provision of a Solution (selfcare services)

A.Nature of Treatments

 

The nature of the operations carried out on the data is: collection, recording, organisation, structuring, conservation, adaptation, modification, consultation…

 

B. The purpose of the Processing

 

The purpose(s) of the processing is (are): the design of the Solution by the Subcontractor for the Client.

 

C. Category of Persons Affected

 

The categories of persons affected are:

 

  • authorised staff of the Data Controller. Authorised staff is understood to mean the employees of the Data controller as well as any natural person mandated by the Data Controller to use the solution or to ensure the implementation of the commercial relationship with the subcontractor (purchasing, invoicing, project management, etc…).

 

  • the End Users (i.e. websites of the Client using the Solution/Application)

D. Type of Personal Data

 

The personal data processed are:

 

– for the staff of the Data Controller: title, surname, first name, email

 

– for users: IP address

 

For the performance of the service covered by this contract, the controller shall make the following necessary information available to the processor:

E. Duration of Treatment

 

Unless otherwise agreed between the Parties, the treatment duration depends on the completion of the SMART TRIBUNE Service (including the Subscription duration).

 

3.Subcontractor’s obligations towards the Data Controller

 

The subcontractor undertakes:

 

  1. to process the data solely for the purpose(s) which is/are the subject of the subcontracting,

 

  1. to process the data in accordance with the instructions given by the Data Controller in the annex to this contract. If the Subcontractor considers that an instruction constitutes a breach of the European General Data Protection Regulation or of any other provision of the European Union law or of the law of the Member States relating to data protection, it shall immediately inform the Data Controller,

 

Furthermore, if the Subcontractor is obliged to transfer data to a third country or to an international organisation under the European Union law or the law of the Member State to which it is subject, the Subcontractor must inform the Data Controller of this legal obligation prior to the processing operation, unless the law concerned prohibits such information on important public interest grounds,

 

  1. to guarantee the confidentiality of the personal data processed in the context of this Contract,

 

  1. to ensure that the persons authorised to process personal data under this Contract: undertake to respect confidentiality or are subject to an appropriate legal obligation of confidentiality and receive the necessary training in the protection of personal data,

 

  1. in relation to its tools, products, applications or services, to take into account the principles of data protection from the design stage and data protection by default

 

  1. Subcontracting

The Subcontractor may use another subcontractor (hereinafter referred to as “the subsequent subcontractor”) to carry out specific processing activities.

At the date of the signature of this Contract, the Data Controller declares having recourse to the following subsequent subcontractors:

The Subcontractor shall in any event remain solely responsible as to the Data Controller for all obligations resulting from this Annex. It is the responsibility of the subcontractor to ensure that the subsequent subcontractor provides sufficient assurance that the appropriate technical and organisational measures are implemented to ensure that the processing meets the requirements of the GDPR. If the subsequent subcontractor does not comply with its data protection obligations, the initial subcontractor shall remain fully responsible to the controller for the performance by the other processor of its obligations.

 

The subcontractor remains free to modify the above list but must, however, inform the Data Controller in advance and in writing of any planned change regarding the addition or replacement of other subcontractors. This information must clearly indicate the subcontracted processing activities, the identity and contact details of the subsequent subcontractor. The Data Controller shall have a minimum period of 8 (eight) calendar days from the date of receipt of this information to present its objections. Such processing may be carried out only if the controller has not objected within the agreed time limit.

 

4.Obligations of the Client Responsible for Processing

 

The Data Controller undertakes to comply with the Regulations and generally ensures that the Data:

 

– is processed in a lawful, fair and transparent manner,

 

– is collected for specific, explicit and legitimate Purposes,

 

– is adequate, relevant and limited to what is necessary for the Purposes pursued. Therefore, the Data Controller undertakes to anonymise or “pseudonymise” the Data as far as possible within the framework of the Contract,

 

– is stored by the Client in a form allowing the identification of the Persons concerned only for a period not exceeding that which is necessary for the Purposes pursued. It is up to the Client to define the length of time the data is kept, in particular with regard to the legal prescription periods in fiscal, social and commercial matters or according to the specific prescription periods taking into account the Client’s sector of activity.

 

More specifically, the Client undertakes to provide the Subcontractor, and to keep up to date throughout the duration of the Contract, all written information and instructions necessary for the performance of the Processing (in particular a precise description of the Purposes, the associated retention periods, the type of Data to be processed, the categories of Persons concerned).

 

– to obtain, where applicable, the consent of the persons concerned for the processing of their data and to inform them of their rights and of the fact that The Client is also committed according to the sector of activity in which it operates, in particular when it concerns a regulated sector and/or when the Services involve or implement Special Data within the meaning of the GDPR (such as Health Data, Data from minors), to alert the Subcontractor to the specific rules that apply to it in terms of protection and security of said Data and to communicate to it all written instructions and documentation useful for this purpose. The same applies if the Client is an administration, a public institution, an organisation or other legal entity under public law or similar.

 

 5.Security Measures

The Subcontractor undertakes to ensure the security of personal data, and to ensure its integrity and confidentiality. To this end, it undertakes to design and implement all technical and organisational measures guaranteeing a level of security appropriate to the risk, including, inter alia, the pseudonymisation and encryption of personal data the means to guarantee the constant confidentiality, integrity, availability and resilience of the processing systems and services; the means to restore the availability of and access to personal data within appropriate time limits in the event of a physical or technical incident; a procedure to regularly test, analyse and evaluate the effectiveness of technical and organisational measures to ensure the security of processing.

 

 6.Data Subjects’ Right to Information

It is the responsibility of the data controller to provide the information to the data subjects at the time of data collection.

 

7. Enforcement of Individual Rights

It is recalled that data subjects are free to exercise the rights conferred on them with regard to and against the Data Controller. The Parties undertake to cooperate with each other in order to enable any request to be dealt with quickly and efficiently and to be able to reply to the data subjects within the legal time limit of one (1) month from receipt of the request.

 

Whenever possible, the subcontractor must assist the controller in fulfilling its obligation to comply with requests to exercise the rights of data subjects: right of access, rectification, erasure and objection, right to limit processing, right to data portability, right not to be subject to an automated individual decision (including profiling).

 

Where the data subjects submit requests to the Subcontractor to exercise their rights, and where such requests relate solely to processing carried out on behalf of the Data Controller, the Data Controller undertakes to send such requests as soon as they are received by email to: rgpd@smart-tribune.fr.

 

When the request is made to the Data Controller and in the event that the latter cannot act on it without the assistance of the Subcontractor, the Data Controller undertakes to contact the Subcontractor’s contact point as soon as possible, by email at rgpd@smart-tribune.fr.

 

Where the request is made to the Subcontractor and is not specifically aimed at a processing operation carried out on behalf of the Data Controller, the Subcontractor shall reply directly to the data subject without needing to inform the Data Controller.

 

8.Notification of Personal Data Breaches

 

The Subcontractor shall notify the Data Controller of any personal data breach as soon as possible after becoming aware of it and in the form and content required by the GDPR in order to allow the Data Controller to notify the breach to the competent supervisory authority. The Data Controller is responsible for informing the data subjects as soon as possible.

 9. Data Output

 

On the termination of the Subscription, the Subcontractor undertakes: At the choice of the Parties: to destroy all personal data or to return all personal data to the data controller or to return personal data to the Subcontractor designated by the Data Controller.

 

The transfer must be accompanied by the destruction of all existing copies in the Subcontractor’s information systems. Should the EU law or the law of a Member State require the retention of personal data, the subcontractor shall inform the controller of this obligation. The Subcontractor undertakes to provide, at the request of the Data Controller, a certificate of destruction.

 

10. Maintenance of the Data Register

 

The Subcontractor declares to keep a written record of all categories of processing activities carried out on behalf of the controller including: the name and contact details of the Data Controller on whose behalf the subcontractor is acting, any subsequent subcontractor and, where applicable, the Data Protection Officer; the categories of processing operations carried out on behalf of the controller; where applicable, transfers of personal data to a third country or to an international organisation, including the identification of that third country or international organisation and, in the case of transfers as referred to in the second subparagraph of Article 49(1) of the European General Data Protection Regulation, the documents attesting to the existence of appropriate safeguards.

 

11.Documentation and audit

 

The Subcontractor shall make available to the Data controller the documentation necessary to demonstrate compliance with all its obligations. The Data Controller retains the right to carry out an annual audit of the Solution in order to verify the adequacy of the technical and organisational measures implemented by the Subcontractor, subject to notifying its intention within a reasonable period of time (which must not be less than 10 working days) to carry out such an audit during the Subcontractor’s working hours. The costs of the audit shall be borne by the Data Controller and the Subcontractor shall invoice the Data Controller for any human resources and machines requested during the audit by the Data Controller. The results of such audits shall be subject to an obligation of confidentiality to be borne by both Parties.