Jewely HBJO General Conditions (GCS)

Legal notices – In accordance with the law on confidence in the digital economy (LCEN)

Site editor

The site www.jewely.fr is published by Jewely HBJO,
SAS FLIPPAD with capital of 15,000 euros,
Registered in the Nancy Trade and Companies Register under number 490 940 145
Head office: 11 rue Gambetta, 54000 Nancy, France
Siret: 490 940 145 00025
Intra-community VAT number: FR92490940145
Responsible for publication: Steve JAICH, President
Contact : [email protected]

Accommodation

The site is hosted by:
Amazon Web Services EMEA SARL
38 John F. Kennedy Avenue
L-1855 Luxembourg
Luxembourg
Site : aws.amazon.com

Activity

Jewely is a suite of business software intended for professionals in the jewelry, watchmaking and goldsmithing industries, offered in SaaS mode by FLIPPAD.

Protection of personal data

The data collected via the site is intended exclusively for FLIPPAD and used within the framework of the commercial relationship or for the improvement of the service.
In accordance with the General Data Protection Regulation (GDPR), you have the right to access, rectify, delete and object to data concerning you.
You can exercise these rights at any time by writing to: [email protected]
No Data Protection Officer (DPO) has been appointed.
No data is transferred or sold to third parties.

Preamble

The company FLIPPAD (hereinafter the “Service Provider”) designs, develops and markets the range of business software packages JEWELY HBJO, aimed at retail and B2B businesses, covering in particular point of sale management, commercial management, accounting and e-commerce.
These software packages are offered as services accessible remotely via the Internet, in SaaS mode.

Software Packages are standard solutions designed to meet the needs of a wide range of customers.

As part of its obligation to provide information and advice, the Service Provider has provided the Client with a Business proposal and/or a Documentation, which the Customer acknowledges having consulted. It is their responsibility, on this basis, to verify the suitability of the Software Packages, Services, Hardware and any Third Party Software to their needs and constraints.

The information provided has enabled the Client to assess the functionalities, limitations, prerequisites and conditions of use of the Services. He acknowledges having been informed of the possibility of obtaining additional details or attending a demonstration before any subscription, and considering himself to be sufficiently informed, he assumes responsibility for the choice of solutions.

Any specifications or document expressing requirements from the Client will only be binding on the Service Provider if it has been expressly accepted and attached to the Contract or the Commercial Proposal.

Object

These presents General Conditions are intended to define, throughout their period of validity, the contractual framework governing the relations between the Service Provider and the Client, as well as their respective rights and obligations within the framework of the use of the Services.

Of the Special Conditions, where applicable attached to the Commercial Proposal, may supplement these terms and conditions to govern certain specific Services and specify the commitments applicable to these services.

Definitions

For the purposes of interpretation and execution of the Contract, the following terms shall have the following meanings, whether used in the singular or the plural:

Customer contact address : email address provided by the Client at the time of signing the Commercial Proposal, used to receive notifications, invoices and other contractual communications from the Service Provider. The Client undertakes to keep this address valid and to inform the Service Provider without delay of any changes or malfunctions.
Anomaly : means any failure in the operation of the Software or any inability to access or connect to it, preventing the execution of the functionalities as described in the Documentation.
Anomalies are classified as follows:
- Blocking : render the Software completely unusable or prevent access to an essential functionality, requiring emergency intervention.
- Majors : do not prevent the use of the Software, but significantly alter its normal use and may require rapid intervention.
- Minors : limited disruptions not affecting essential functionality, which can be corrected without urgency.
Customer : means the legal entity contracting with the Service Provider, represented by a duly authorized representative.
CONTRACT : all contractual documents mentioned in the article “Contractual documents”, including in particular these General Terms and Conditions, the Commercial Proposal and, where applicable, the Special Conditions.
Corrections : modifications made by the Service Provider to remedy the reported Anomalies, either by removing the defect or by implementing a workaround.
Request for intervention : formal notification sent by the Client to the Service Provider in order to report an Anomaly and request its support.
Specific Developments : specific adaptations of the Software Package made at the Client's request in order to meet specific needs. These developments are subject to specific invoicing, based on validated specifications, and their maintenance is subject to conditions distinct from standard services.
Documentation : all documents for using the Software Package made available to the Client, including user guides, online documentation, technical notes, excluding the Service Provider's internal design documents (analyses, test files, etc.).
Personal Data (Or DCP): any information relating to an identified or identifiable natural person, processed in the context of the performance of the Contract.
Customer Data : means all content, publications, files and information, including DCPs, hosted as part of the Services provided to the Client.
Business Hours : period between 9:00 a.m. and 6:00 p.m. (Paris time), Monday to Friday, excluding legal holidays in France.
Identifiers : username/password pair assigned to an authorized User, allowing secure access to the Software.
Internet : open global network, consisting of interconnections of computing and telecommunications resources, based on the TCP/IP protocol.
DCP legislation : all legislative and regulatory texts relating to the protection of personal data, including in particular the General Data Protection Regulation (GDPR – EU Regulation 2016/679) and French law n°78-17 of January 6, 1978 as amended.
Deliverables : means any documentary or technical deliverable provided by the Service Provider as part of the execution of the Services.
Third Party Software : software components developed by third-party publishers and integrated into the Software, used under a specific license, the conditions of which are binding on the Client.
Material : any IT equipment used by the Client to access the Services, including workstations, peripherals, POS terminals, as well as any hardware possibly supplied or recommended by the Service Provider.
Approved Equipment : hardware recognized as compatible by the Provider for the installation and use of the Software. This recognition may be tacit.
Hosted Equipment : hardware infrastructure (servers, networks, etc.) hosting the Software, belonging to the Service Provider or to a third-party host.
Maintenance : all operations intended to maintain or restore optimal functioning of the Software, including technical or regulatory developments, planned according to a schedule specific to the Service Provider.
Provision : moment when the Client receives the Identifiers (SaaS/hosted mode) or the installation means (On Premise mode), marking the start of use of the Software.
Maintenance Beach : slots during which access to the Software may be suspended for planned or exceptional maintenance.
Software package : designates the business software JEWELY HBJO, offered by the Provider, accessible in SaaS, hosted, or On Premise mode, as specified in the Commercial Proposal.
Business proposal : document issued by the Service Provider detailing the offer of Services and Products, valid as an order after signature by the Client. Any handwritten modification appearing therein will be deemed unwritten, unless expressly agreed by the Service Provider.
Data controller : the Client, in his capacity as the person determining the purposes and means of processing personal data.
Services : all services provided by the Service Provider, including access to the Software, maintenance, training, support, hosting, sale of equipment, installation, configuration, or any other agreed service.
SaaS Services : services including hosting of the application and data, maintenance, backup, updating, availability and performance of the Software.
Hosted Services : hosting of the Software and the Client’s data by the Service Provider or a third-party hosting provider.
Recurring services : services subject to periodic fees (subscription, maintenance), as opposed to one-off services.
Subcontractor : the Service Provider, when acting on behalf of the Client in the context of processing DCPs.
User : any natural person authorized by the Client to access the Software, trained in its use and having Identifiers.
Use : means any use of the Software or a Deliverable, including access, display, execution, within the framework strictly provided for by the Contract.
Versions : different editions of the Software, incorporating corrections (Minor Versions) or significant functional developments (Major Versions). The Client accepts the use of the new Versions made available by the Service Provider.

Contractual documents and amendments

The contractual relations between the Service Provider and the Client are governed by all of the following documents, with their annexes and amendments, listed in decreasing order of priority:

there Business proposal issued by the Service Provider and accepted by the Client;
the possible ones Special Conditions attached or incorporated into said Commercial Proposal;
these presents General Conditions.

In the event of a contradiction between the provisions of these documents, the higher-ranking document shall prevail for the provisions concerned only.

Each Commercial Proposal signed by the Client constitutes, with these General Conditions, a Autonomous, separate and independent contract, applicable exclusively to the Services it mentions. In the event of subscription to several Services via several Commercial Proposals or a Global Proposal, these will be executed independently, without generating any legal interdependence between the different contractual commitments.

THE general conditions of purchase of the Client or any other unilateral document not expressly accepted by the Service Provider are deemed unenforceable, null and void.

The Provider reserves the right to modify these General Conditions at any time, in particular to take into account developments in the Services, the Software or applicable regulations.
The new versions of the General Conditions will be brought to the attention of the Client by any useful means (in particular by email or via their publication on the Service Provider's website) and will only be applicable to Contracts concluded or renewed. after their entry into force, unless expressly agreed by the Parties to apply them to a current Contract.

Any modification of a Commercial Proposal or of the Special Conditions during execution must be the subject of a written amendment, signed by both Parties. Failing this, no modification may be opposed.

Validity of commercial proposals

Any order becomes firm and final from the signature by the Client of the Business proposal issued by the Service Provider. This signature constitutes express acceptance of all the conditions contained in said Proposal, as well as these General Conditions, which are expressly referred to therein.

Acceptance of the Commercial Proposal may also result from any other unambiguous method of validation (electronic signature, written confirmation, purchase order, use of a Service, etc.), in which case the General Conditions will be deemed accepted in their entirety, notwithstanding the absence of a handwritten signature.

The fact that the Client places an order, signs a commercial Proposal, or uses all or part of the Services offered by the Service Provider, entails full and unreserved adherence to these General Conditions, to the exclusion of any other document emanating from the Service Provider (prospectuses, catalogs, technical or commercial documentation) which cannot have any contractual value, unless expressly stipulated otherwise.

THE handwritten notes possibly added to a Commercial Proposal will not have no contractual value, unless expressly accepted in writing by the Service Provider. Failing this, they will be deemed unwritten.

Acceptance of the Contract

The Client declares to have previously taken note of all contractual documents comprising the Contract, as defined in the article “Definitions”, and the accept without reservation.

Acceptance of the Contract occurs automatically on the date of validation of the commercial proposal, by any means allowing the establishment of a clear agreement from the Client (handwritten or electronic signature, purchase order, validation email, or any other equivalent confirmation method).

This acceptance implies a firm and irrevocable commitment by the Client to comply with all contractual stipulations, including these General Conditions and, where applicable, the attached Special Conditions.

Duration

These presents General Conditions come into force from date of signature by the Client of the first commercial Proposal which refers to it, or in accordance with the provisions of the article “Evolution” in the event of a subsequent update.

They remain applicable for the entire duration of the execution of the Services subscribed to by the Client, including in the event of tacit renewal or renewal of any Contract, and until the complete termination of the contractual commitments between the Parties.

Their validity continues for each Service as long as it remains executed, without prejudice to any specific stipulations that may be provided for in the Special Conditions or in subsequent commercial Proposals.

Collaboration

The Parties undertake to cooperate good faith throughout the performance of the Contract and to maintain a active, loyal and constructive collaboration, in order to facilitate the proper fulfillment of their respective obligations.

In this regard, each of the Parties undertakes to:

communicate to the other, as soon as possible, all information, documents or elements useful for the execution of the Contract, or to facilitate access to it;
respond diligently to requests for information, advice or validation made by the other Party;
designate a contact person, duly authorized, responsible for monitoring the Contract and maintaining operational links with the other Party.

The Service Provider undertakes to provide the Client with the necessary advice, alerts and warnings concerning the Services provided, in particular when a choice, configuration or behavior of the Client could have negative consequences on their proper functioning.

The Client undertakes to:

respect all the technical, functional and organizational prerequisites communicated by the Service Provider, appearing in the Documentation or transmitted by any other means;
follow the Provider's recommendations and instructions relating to the use or administration of the Services;
report without delay any difficulty, incident or anomaly likely to affect the execution of the Contract or the use of the Services.

In the event of technical difficulty or dispute, the Parties agree to adopt a approach primarily oriented towards amicable resolution, based on the search for operational solutions, rather than on calling into question the responsibility of the other Party.

It is expressly agreed that:

each Party waives the right to invoke an exception of non-performance by anticipation,
neither Party may have the obligations of the other executed by a third party without his prior written consent,
no advance, reimbursement of costs or compensation may be required from the defaulting Party without its prior express consent.

Intellectual property

9.1. Rights to the Software Packages
The Provider is the exclusive owner of the intellectual property rights relating to the Software Packages. JEWELY HBJO as well as all elements associated with it (source code, documentation, interfaces, etc.). He declares that he has all the rights necessary for the execution of the Services covered by the Contract.

This Agreement does not entail any transfer of intellectual property to the Client. The Client is only granted a personal, non-exclusive, non-assignable and non-transferable right access and use of the Software, within the limits expressly provided for by the Contract.

The Client shall refrain from any act or behavior likely to infringe, directly or indirectly, the Service Provider's rights to the Software, in particular by unauthorized reproduction, modification, decompilation, distribution or marketing.

9.2. Third-Party Software
The Provider declares that it has the necessary rights for the integration, use and distribution of the third-party software possibly included in the Software, within the limits of the licenses granted to it by the publishers concerned.
The Client undertakes to scrupulously respect the conditions of these licenses, the list and terms of which can be communicated by the Service Provider upon simple request.

9.3. Deliverables and know-how
The Provider retains full intellectual and material ownership of all Deliverables carried out in the context of the execution of the Contract. It also remains the sole owner of all tools, methods, software, processes, know-how, inventions or pre-existing elements implemented on this occasion.
The Service Provider reserves the right to use, for the purposes of its business and in compliance with contractual confidentiality, any experience or knowledge acquired in the context of the Services provided for the Client, including for development purposes or reuse in other contexts.

9.4. Usage Audit
The Provider reserves the right to carry out any compliance audit aimed at ensuring that the Client's use of the Software strictly complies with the terms of the Contract.

The Client expressly authorizes the Service Provider to carry out these audits, under conditions that do not significantly interfere with its activity.
In the event of non-compliant use being found, the Service Provider may, without prejudice to any other remedy, charge the Customer a penalty equivalent to twice the amount of the annual fee applicable to the Service concerned.

9.5. Guarantee in case of counterfeiting
The Service Provider guarantees the Client against any action for infringement or any claim from a third party alleging that the use of the Software or a Deliverable under the contractual conditions infringes its intellectual property rights, in France.

In this respect, the Service Provider will be responsible for:

the defense of the Client in the context of any action brought in this regard,
as well as the payment of damages which would be awarded against the Client, on the condition that:
– the Client has informed him in writing within fifteen (15) days calendar days from notification of the Action;
– the Service Provider retains the exclusive management of the procedure and any associated negotiations;
– the Client actively collaborates in the defense by providing all useful information.

The warranty does not apply in the event of:

of use of a obsolete or modified version of the Software Package or a Deliverable,
of incorporation of content provided by the Client (including Customer Data) at the origin of the breach,
of modification or assembly of the Software Package or a Deliverable with elements not supplied by the Service Provider,
or use of the Software in conditions not in accordance with the Contract.

In the event of a proven risk of counterfeiting, the Service Provider may, at its discretion:

obtain a right of use for the benefit of the Client,
modify or replace the element concerned,
or, if none of these measures is reasonably practicable, ask the Customer to stop using of the Service concerned, in return for a credit corresponding to the fee paid for the unused period.

This clause constitutes theentirety of the Provider's commitment in matters of guarantee of peaceful enjoyment under intellectual property rights.

9.6. Tacit acceptance of Deliverables

Any Deliverable or Service delivered will be deemed accepted without reservation if the Client does not make any reasoned complaint in writing within ten (10) calendar days following delivery or provision. Use of the Deliverable will also constitute acceptance.

Confidentiality

Each Party undertakes to preserve the confidentiality of all information, documents, data, technical, commercial, financial or strategic elements, oral or written, in any form whatsoever, exchanged or brought to its attention in the context of the execution of the Contract (hereinafter the “Confidential Information”).

This Confidential Information may only be used for the purposes strictly necessary for the execution of the Contract and may not be communicated to third parties, except with the prior written consent of the other Party.

Each Party undertakes to transmit Confidential Information only to members of its staff, collaborators, subcontractors or partners strictly authorized to know it, and only to the extent necessary for the performance of the Contract. In this respect, each Party is doing well compliance with confidentiality commitments by the persons it authorizes to access said information, and remains responsible of any breach committed by them.

The confidentiality obligations provided for herein do not apply to information for which the receiving Party is able to prove that it:

were in the public domain at the time of their disclosure, or subsequently fell into it without breach of the Contract;
were already in his possession lawfully before their communication by the other Party;
have been developed independently by the Receiving Party without recourse to the Confidential Information;
have been legally obtained of a third party without breach of these terms;
were disclosed with theprior written authorization of the other Party.

The obligations defined in this article shall remain in force. for the entire duration of the Contract, And for a period of two (2) years following its termination, for whatever reason.

Financial conditions

11.1. Prices

The Customer undertakes to pay the Service Provider the sums corresponding to the supplies and Services ordered, as defined in the Business proposal accepted. Prices are understood excluding taxes, with duties and taxes in effect on the invoice date being invoiced in addition. The implementation of the Services by the Provider is subject to the advance payment by the Client of the amounts due in accordance with the Commercial Proposal.
Any request from the Client relating to services or benefits not planned in the initial Commercial Proposal will be subject to a amendment, accompanied by a new quote, the acceptance of which conditions the performance of the Services concerned.

11.2. Billing conditions

11.2.1. Deposit on order
Upon signing the Commercial Proposal, the Client pays the Service Provider a deposit the amount of which is specified in the said Proposal.

11.2.2. Electronic invoices
Invoices are sent to the Customer by email to theCustomer contact address communicated when ordering.

11.2.3. Fees for Recurring Services
The Service Provider invoices the Client:

a initial fee, called “initial right of use”, to the date of availability, if planned;
a recurring fee, called “right of use”, invoiced due date, according to the frequency defined in the Commercial Proposal (monthly, quarterly, half-yearly or annual).

The invoicing of royalties follows the following rule:

if the Provision takes place between the 1st and the 15th of month M, the fee is invoiced from the 1st day of the month M ;
if it occurs between the 16th and the 31st of month M, it is billed from the 1st day of month M+1.

11.2.4. One-off services
Non-recurring Services (training, assistance, advice, configuration, etc.) are billed after their completion, less any deposit paid. The Commercial Proposal may provide for a schedule linked to the progress of the project.

The price may be flat rate or based on a past time (at the “man/hour” or “man/day” rate), specified in the Commercial Proposal. Any quarter of an hour started is due.

11.2.5. Travel expenses
Travel, meal and accommodation expenses for the Service Provider's employees working at the Client's premises are re-invoiced on supporting documents, from the home agency. In the event of a mission abroad, the rates will be adjusted to take into account the conventional increases (long trip, compensatory rest, etc.).

11.2.6. Materials resold
The Materials resold to the Customer are invoiced on delivery, less any deposit.

11.3. Payment terms

The deposit is paid by any means.
Payment of recurring royalties is carried out by direct debit. To this end, the Client undertakes to sign any document necessary for the implementation of the SEPA mandate.

If another payment method has been exceptionally accepted by the Service Provider, the latter reserves the right to demand a return to direct debit in the event of late payment.

All invoices are payable within ten (10) days from their date of issue.
No partial payment, deduction or compensation may be made unilaterally by the Customer. A dispute over an invoice does not in any case authorize suspend payment of other bills.

Fees related to a rejected direct debit, as well as all recovery costs engaged, will remain at the exclusive responsibility of the Client.

11.4. Price revision

Prices for recurring Services will be revised annually on the anniversary date of the Contract.
The annual increase may not exceed 6,5 %, increased by the variation of the Syntec index observed over the past period.

11.5. Late payment penalties

Any delay in payment will result in, automatically and without prior notice :

L'immediate due date of all sums due,
the application of a late payment interest equal to ECB refinancing rate increased by ten (10) points, from the due date,
the payment of a lump sum compensation for recovery costs of 40 euros by invoice (article L.441-10 of the French Commercial Code), without prejudice to the right of the Service Provider to obtain additional compensation on supporting documents (lawyer fees, debt collection agency, etc.).

In the event of recourse to a third-party payer (financing body or other), the Client remains jointly and severally liable of all unpaid amounts.

11.6. Suspension of Services

In case of default of payment not regularized within a period of fifteen (15) calendar days following the sending of a formal notice by registered letter with acknowledgment of receipt, the Provider reserves the right to suspend the performance of all or part of the Services, including access to the Software.

This suspension:

does not constitute a termination of the Contract,
does not exempt the Client from paying the amounts due,
is without prejudice to the right of the Provider to claim damages.

Generally speaking, any new order could be suspended as long as a claim of the Provider remains unpaid by the Client, whatever its nature.

11.7. Irrevocability of payments

Any payment made by the Customer under the Contract is firm, final and irrevocable. No refund, even partial, may be required, unless expressly stipulated otherwise or a final court decision.

Termination

12.1. Termination for convenience

THE Customer may terminate the Contract at any time, subject to compliance with a notice of at least three (3) months before the anniversary date of the Contract, notified by registered letter with acknowledgment of receipt. The termination will take effect on last day of the month in which the notice period ends.
THE Provider may also terminate the Contract for convenience, by respecting a notice of at least six (6) months, notified by registered letter with acknowledgment of receipt. The termination will also take effect on last day of the month in which the notice period ends.

12.2. Termination for Default

In the event of a serious breach by one of the Parties of one of its contractual obligations, not remedied within a period of thirty (30) calendar days following the sending of a formal notice by registered letter with acknowledgment of receipt, the other Party may terminate the Contract automatically relating to the Service concerned.

Termination of a Contract shall not have no impact on other current Contracts, which will remain fully enforceable, the Parties expressly excluding the application of the article 1186 of the Civil Code.

By way of exception, the Service Provider may proceed to the immediate termination without notice of the Contract in the event of a breach by the Client of its obligations relating to the intellectual property rights of the Provider.

The fact for a Part of not to avail oneself immediately of a breach or contractual right shall not be construed as a waiver of that right or obligation for the future.

The Parties expressly agree that they waive any unilateral termination not provided for in this article. Any judicial resolution of the Contract may only take place on court decision, the Parties excluding any retroactivity of the effects of a contractual termination.

12.3. Termination in other cases

The Service Provider reserves the right to unilaterally terminate the Contract, subject to a fifteen (15) calendar days' notice, in the following cases:

opening of a judicial recovery or liquidation procedure of the Client,
unless otherwise decided by the judicial administrator authorized to continue the execution of the Contract.

12.4. Consequences of termination

Termination of a Contract, whatever the cause, does not entail no automatic termination of other Contracts in force.
The termination occurs without prejudice to damages that the injured Party could claim.

In the event of termination, the Client is required to:

stop immediately any access to recurring Services and any Use of the Software;
restore to the Service Provider all Deliverables, documents and materials in its possession, except those of which it has acquired ownership;
pay in full amounts due for Services performed up to the effective date of termination, including invoices not yet paid;
reimburse the Provider costs incurred with third parties or resulting directly from the termination.
Reversibility

Upon expiry of the Contract, whatever the cause, the Client may implement a procedure of reversibility aiming to recover all of its data hosted within the framework of the Services.

On written request addressed to the Service Provider by registered letter with acknowledgment of receipt, the Service Provider undertakes to:

restore to the Client, or to the professional third party of its choice, all of the data and operating documents belonging to it, in a open standard format,
or, if the Client expressly requests it, destroy said data, unless otherwise provided for by applicable regulations (in particular with regard to the retention of personal or accounting data),
provide the necessary technical assistance to the migration of data within the framework of reversibility, under conditions allowing their reuse by another system.

There reversibility benefit is not included in the financial conditions of the Contract. It will be the subject of a specific quote, established on the basis of the current daily rate at the time of its realization.

The implementation of reversibility has not no suspensive effect on the contractual obligations of the Parties. Consequently, the Provider will continue to provide the Services until the effective end of the Contract, and the Client undertakes to settle the corresponding amounts, including during the reversibility phase.

In the event that reversibility assistance continues beyond the termination notice period, the Parties expressly agree to extend the Contract for the duration necessary to finalize the reversibility, without this extension being able to exceed three (3) months from the initial expiration date of the Contract.

No poaching

The Client undertakes to not to solicit, recruit, employ or employ, directly or indirectly, any employee or collaborator of the Service Provider, for the entire duration of the Contract, and for a period of twelve (12) months following the termination of contractual relations, whatever the cause.

This commitment applies whatever the function occupied by the employee concerned, and whatever the nature of the contractual relationship envisaged (employment, subcontracting, independent service, portage, etc.).

In the event of failure to comply with this obligation, the Client undertakes to pay the Service Provider, as a penalty clause, a fixed and irreducible compensation equal to twenty-four (24) months of the last gross monthly remuneration perceived by the person(s) concerned, without prejudice to any additional damages that the Service Provider may claim.

This clause is justified by the technical and specialized nature of skills the Provider's employees, frequent interactions with the Client's teams, as well as the risk of operational disorganization that such recruitment would incur for the Service Provider.

This provision applies to all employees and collaborators of the Service Provider located in mainland France on the date of termination of the Contract.

Responsibility

15.1. Obligation of means

The Provider is required, in the performance of the Services described in the Contract, to: obligation of meansIt will implement the due diligence and resources reasonably necessary for the proper execution of its commitments, without however guaranteeing the achievement of a particular result.

The Provider does not guarantee the suitability of the Software Package the Client's own objectives, nor the achievement of specific results that the Client has set for itself, unless these objectives have been presented in a written, precise and exhaustive manner by the Client and expressly validated by the Provider.

15.2. Customer Liability

The Client remains fully responsible :

of the assessment of his needs and the expression of these;
the suitability of the Services and the Software to its expectations;
of the use he makes of the results resulting from the use of the Services;
the competence and qualifications of its staff;
the legality, quality and integrity of its data;
the performance of its IT environment, its equipment, its network, as well as compliance with technical prerequisites;
compliance with the deadlines and obligations incumbent upon it in the context of the execution of the Contract.

15.3. Exclusions of liability

The Service Provider cannot be held responsible:

damages resulting from a failure of the Client to meet its own obligations,
errors, omissions or negligence attributable to the Client, its employees, or any third party acting on its behalf,
of the Client's failure to comply with the recommendations, instructions or procedures issued by the Provider.

The responsibility of the Provider is strictly limited to direct and foreseeable damages, excluding any indirect damage such as: loss of business, loss of turnover, customers, image or expected savings, as well as any claim from third parties.

In the event of damage caused to Customer data, the sole obligation of the Provider is limited to the restore the last available backup carried out by him.

15.4. Limitation of liability

The Service Provider cannot be held liable that in the event of proven fault, and the total amount of compensation possibly due, all claims and losses combined, will be limited, per calendar year, to an amount not exceeding the sum actually paid by the Client for the Services concerned during the twelve (12) months preceding the occurrence of the damage.

This limitation constitutes an essential and determining condition of the Provider's consent. The agreed prices take into account this contractual distribution of risk.

These provisions will remain applicable, including in the event of termination or judicial resolution of the Contract.

15.5. Waiver of forced performance by a third party

By express derogation from Article 1222 of the Civil Code, the Parties agree to exclude any possibility for the Client to have an obligation of the Service Provider performed by a third party or by itself at the expense of the Provider, without his prior written consent.

15.6. Contractual limitation period

Unless otherwise required or action by the Service Provider to recover debts, any action for liability must be brought within one (1) year from the triggering event. Failing this, the Party concerned will be deemed to have definitively renounced to rely on the alleged breach.

Personal data

16.1. Context and commitments

As part of the execution of the Contract, the Service Provider is required to process Customer Data, which may include Personal data (PD)Each of the Parties undertakes to comply with all applicable legal and regulatory obligations regarding the protection of personal data, in particular those resulting from the Regulation (EU) 2016/679 (GDPR) and of the Law No. 78-17 of January 6, 1978, amended (hereinafter the “DCP Legislation”).

When the Service Provider acts as Subcontractor within the meaning of the GDPR, the processing methods are described in theAppendix 1 “Description of the processing of personal data”.

If new regulatory or contractual requirements related to these treatments increase the workload of the Service Provider, the Parties agree to establish a amendment setting out the conditions, particularly financial, of this extension.

The technical and organizational security measures implemented are specified in theAppendix A, regularly updated by the Service Provider. Any modification will be notified to the Client, without this constituting a contractual modification within the meaning of the “Evolution” clause.

16.2. Obligations of the Client

The Client, as Data controller, guarantees that Customer Data is processed lawfully, fairly, relevantly and in accordance with the determined, explicit and legitimate purposes. It undertakes to inform the persons concerned in accordance with the DCP Legislation.

The Client is solely responsible :

the legality, quality and relevance of Customer Data,
respect for the rights of the persons concerned,
obtaining all necessary authorizations,
of the content of messages and files distributed via the Services.

He guarantees that he has all the necessary rights to allow the Service Provider to process the Customer Data under the Contract. As such, he undertakes to guarantee and indemnify the Provider against any claim, complaint or action from a third party relating to a breach of the DCP Legislation.

The Client undertakes to:

formalize in writing any instructions addressed to the Service Provider,
transmit within 5 days the contact details of its Data Protection Officer (DPO),
cooperate fully with any verification or audit carried out under the “Audit” section.

16.3. Obligations of the Provider

Inasmuch as Subcontractor, the Service Provider undertakes to:

process DCPs only on documented instructions from the Client and for contractual purposes only;
immediately notify any instruction that it considers to be contrary to the DCP Legislation;
restrict access to DCPs to authorized persons only, subject to an obligation of confidentiality;
inform the Client of any change of subcontractor in terms of processing personal data, with a deadline of 10 days for possible reasoned objection;
notify the Client any DCP violation as soon as possible;
delete or return the DCPs at the end of the service, at the request of the Client;
keep available the information necessary to demonstrate compliance and organize audits.

The Provider is not responsible of the overall compliance of the processing implemented by the Client. Any additional assistance requested by the Client will be subject to a specific agreement and may be billed.

16.4. Transfers outside the European Union

The Client guarantees that any instruction involving a transfer of DCP to a third country complies with DCP Legislation.

The Client authorizes the Service Provider to carry out such transfers, provided that they are based on:

an adequacy decision from the European Commission,
of the Standard Contractual Clauses (CCT) signed by the Service Provider on behalf of the Client,
the appropriate safeguards referred to in Article 46 of the GDPR,
or one of the cases provided for in Article 49 of the GDPR.

16.5. Audit

The Client can have it carried out one audit per year, at its own expense, to verify the Provider’s compliance with its DCP obligations.
The audit must be notified at least thirty (30) Business Days in advance by registered letter with acknowledgment of receipt, with detailed protocol. The appointed auditor must not be a competitor of the Service Provider and must sign a confidentiality agreement.
The Provider is not required to transmit its sensitive internal documents (financial, commercial information, etc.). The results will be subject to a adversarial debate and the costs incurred will be the exclusive responsibility of the Client.

16.6. Processing of anonymized data

The Provider is authorized to carry out processing of previously anonymized data for the purposes of statistical analysis, research, improvement of its services or as part of “Big Data” type operations.

These treatments are carried out without financial compensation for the Client. The Service Provider remains the owner of the intellectual property rights on the statistical information produced.

16.7. Limitation of liability regarding security

The Service Provider implements reasonable technical and organizational measures to ensure data security and prevent unauthorized access. However, the Client acknowledges that, despite these measures, zero risk does not exist on the Internet.

The Provider shall not be held liable for damages resulting from acts of cybercrime, intrusions or computer attacks beyond its reasonable control, in particular in the event of a security breach affecting third-party systems or events deemed to be force majeure.

Subcontracting

The Service Provider reserves the right to use one or more subcontractors to perform all or part of its obligations under the Contract, including technical, software, hosting or support services.

The use of subcontracting does not in any way relieve the Service Provider of its liability. The Service Provider remains solely responsible to the Client for the proper performance of the Services entrusted, under the same conditions as if it had performed them itself.

The Service Provider guarantees that any subcontractor involved in the Contract complies with obligations equivalent to those provided for herein, in particular with regard to confidentiality, data security and, where applicable, compliance with DCP Legislation.

Assignment of the Contract

The Contract may not be assigned, in whole or in part, by the Client to a third party, for consideration or free of charge, including in the context of a change of control, a merger or a universal transfer of assets, without the prior, express and written consent of the Service Provider.

However, the Service Provider reserves the right to assign or transfer, at any time, all or part of its rights and obligations under the Contract, in particular in the context of a restructuring operation, transfer of activity or to an affiliated company, without this constituting a substantial modification of the Contract.

Force majeure

The Parties agree that the occurrence of a force majeure event suspends the performance of their respective obligations for the duration of the event, with the exception of payment obligations due before its occurrence.

Cases of force majeure are considered to be those usually recognized by the case law of French courts, as well as any event beyond the reasonable control of the Party relying on them, which it could not foresee or avoid, and the effects of which can only be overcome at the cost of costs that are manifestly disproportionate to the agreed services.

The following are considered to be cases of force majeure: natural disasters, widespread social conflicts, pandemics, massive failures of communication networks, acts of war, acts of terrorism, decisions by administrative or judicial authorities directly affecting the execution of the Contract, as well as any crisis affecting the hosting infrastructure used for the Services.

Each Party undertakes to inform the other Party, as soon as possible, of the occurrence of a force majeure event, and to make its best efforts to limit the consequences.

Readjustment

If, after the signing of the Contract, economic, technical or commercial circumstances were to significantly modify the general economy of the Contract or the initial balance agreed between the Parties, to the point of making its execution manifestly prejudicial for one of them, that Party may inform the other Party and request the opening of discussions.

The Parties then undertake to meet as soon as possible, in a spirit of cooperation, good faith and fairness, in order to examine the contractual adjustments necessary to restore the initial balance. These adjustments may relate in particular to the financial conditions or any other clause whose modification would be likely to restore fair performance of the Contract.

Any readjustment will be the subject of an agreement formalized by means of a written amendment, signed by both Parties.

Insurance

The Service Provider declares that it has taken out an insurance policy covering its professional civil liability with a reputable insurance company. This insurance covers the financial consequences of bodily injury, material damage, and non-material damage caused to the Client or third parties in the performance of the Contract.

For its part, the Client declares that it has taken out civil liability insurance with a reputable insurer, covering all damage that it could cause, in particular to the equipment made available or delivered by the Service Provider, and which remains the property of the latter until full payment of the price.

Each Party undertakes to maintain the aforementioned insurance in force for the entire duration of the Contract, and to provide proof thereof at the first request of the other Party.

Reference

The Client expressly authorizes the Service Provider to mention its name, company name, trademarks and/or logos, as well as the Software Package(s) concerned, as commercial reference.

This authorization applies to all external communications from the Service Provider, on any medium of its choice, in particular for the purposes of prospecting, commercial presentation, institutional communication or publication on its website.

The Provider is also authorized to describe succinctly the project carried out for the Client, while respecting the confidentiality of non-public information.

Entirety

The Contract, consisting of these General Conditions and the signed Commercial Proposal relating to the Services subscribed to, expresses theentirety of the agreement between the Parties and prevails over any prior exchange, commitment or document, whether oral or written.

No other document, in particular technical, advertising or commercial, no declaration or correspondence exchanged before the conclusion of the Contract, may create an obligation or be opposed to either Party, except for express and written acceptance incorporated into the Contract by way of an amendment.

Evolution

As part of the development of its Services or its administrative and commercial management methods, the Service Provider reserves the right to modify all or part of these General Conditions, including for Services currently being executed.

The Client will be informed of any modification at least three (3) months before their effective date, by any appropriate means, and as a priority by email addressed to the Customer Contact Address.

From this notification, the Client has a period of three (3) months to expressly refuse the application of the new provisions, by registered letter with acknowledgment of receipt addressed to the Provider.

In the event of refusal notified within this period, the Client may terminate the Contract at any time. The Services will then continue to the previous conditions for a maximum transitional period of six (6) months from the expiry of the aforementioned period, i.e. a maximum period of nine (9) months from the update notification.

At the end of this transitional period, if the Client has not exercised his right of termination, the Contract will continue automatically according to the new modified General Conditions.

Independence of Services

The Client acknowledges that each of the Services subscribed to under the Contract constitutes a separate, autonomous and independent service of other Services. Accordingly, the termination, expiration or cessation, for any reason whatsoever, of any of these Services shall not affect the validity or performance of other Services in progress.

The Customer expressly waives the right to rely on the provisions of the article 1186 of the Civil Code relating to the lapse of the entire contract in the event of the disappearance of an essential element, and undertakes to honor all obligations subscribed to with the Provider for each of the agreed Services.

Independence of the Parties

Each Party remains a legally and financially independent entity, acting in its own name and under its sole responsibility. The Contract shall not be interpreted as establishing between them a company, an association, a group or a relationship of subordination of any kind whatsoever.

Neither Party is authorized to bind the other, nor to act in its name or on its behalf, except by express written agreement. Each Party undertakes not to create, by its actions, obligations on the other, or to present itself as having the authority to represent it.

Non-waiver

The fact that one of the Parties does not avail itself, at a given time, of the non-performance by the other Party of any of its contractual obligations cannot be interpreted as a definitive waiver of the right to avail itself of them subsequently.

Tolerance, even repeated, may in no case be considered as creating a right, nor as an implicit waiver of exercising the right in question.

Compliance with various regulations

28.1. Tax component

The Client undertakes to use the Third Party Software provided by the Service Provider in strict compliance with the laws and regulations in force, in particular those relating to taxation, and guarantees the Service Provider against any consequences resulting from a failure on its part to comply with these obligations.

28.2. Social component

When the Service Provider's personnel are required to work on the Client's premises, they will comply with the internal regulations as well as the health, safety and security rules applicable in these premises. The Service Provider's personnel remain under the hierarchical, disciplinary and technical authority of the Service Provider at all times, who alone is responsible for their administrative, accounting and social management. This Contract may under no circumstances be interpreted as a provision of personnel within the meaning of the regulations on temporary work. The Service Provider declares that it complies with labor regulations, in particular the provisions of Articles L. 8222-1 et seq., D. 8222-5, L. 8254-1 and D. 8254-2 of the Labor Code, and undertakes to provide, upon request from the Client, any useful supporting documentation attesting to this compliance.

28.3. Corruption and conflict of interest section

The Service Provider declares that it is not subject to any civil or criminal sanctions for acts of corruption or influence peddling, and that no investigation or procedure likely to lead to such sanctions is underway against it. It undertakes to provide the Client with all necessary assistance in the event of a request from an authorized authority, as part of the implementation of anti-corruption compliance measures.

In the context of the performance of the Contract, the Service Provider undertakes not to commit or tolerate any act constituting an offense against the applicable provisions regarding the fight against corruption or influence peddling, in particular those referred to in Articles 432-11 et seq. and 433-1 et seq. of the Criminal Code. In particular, it undertakes not to solicit, offer, accept or grant, directly or indirectly, any advantage, gift or service, of any nature whatsoever, likely to be interpreted as an act of corruption or influence peddling. Failure to comply with these commitments constitutes a serious breach within the meaning of Article 12.2 of the Contract.

Assignment

These General Conditions are concluded intuitu personae with respect to the Client. Consequently, the rights and obligations arising therefrom may not be assigned, sublicensed, transferred or sold in any way whatsoever by the Client, except with the prior, express and written agreement of the Service Provider. Any assignment authorized in this respect will give rise to invoicing according to the current rate applicable to the Provider on the day of the request.

Notwithstanding the foregoing, the Provider reserves the right to freely assign these General Conditions, as well as all or part of its contractual rights and obligations, for the benefit of any company affiliated with the DL Software Group, without having to obtain the prior consent of the Client.

In any event, the Parties expressly agree that any transfer made in application of this article is carried out without solidarity between the Assigning Party and the Assigned Party, which the Client expressly acknowledges and accepts.

Nullity

If one or more non-substantive provisions of the Contract were to be declared null, invalid or inapplicable, in whole or in part, by virtue of a legal or regulatory provision or following a final decision of a competent court, this nullity will not affect in no case the validity of the other stipulations, which will retain full effect and scope.

The Parties undertake, where appropriate, to negotiate in good faith a replacement clause that is legally and economically equivalent.

Evidence agreement

The Parties agree that the emails exchanged between them have probative value and are enforceable against them, as are the phone call recordings addressed to the Provider's hotline.

THE computerized registers stored in the Provider's information systems are deemed to have been carried out under security conditions in accordance with professional practice and will constitute, unless proven otherwise, admissible and enforceable elements establishing the reality of communications, orders, payments and access to the Services.

Archiving and storage of access to the Services is carried out on a reliable, durable and secure support, which may be produced as evidence in the context of a dispute or audit.

Compliance with the NF525 standard

The Service Provider declares that the JEWELY HBJO Software Package is designed in compliance with the requirements of the NF525 standard, applicable to management, accounting or cash register software, within the framework of French tax regulations relating to the inviolability, security, conservation and archiving of data.

It undertakes to maintain the functionalities required by the standard throughout the duration of the Contract, unless there is a regulatory modification or repeal of said standard. The Service Provider also undertakes, at the Client's request, to provide any certificate or technical documentation relating to this compliance, within the limits of what is authorized by the certification body or the tax authorities.

The Client acknowledges that compliance with the NF525 standard does not exempt the Client from its own reporting and tax obligations, nor does it guarantee the accuracy or legality of the data entered into the Software. It is the Client's responsibility to configure and use the software's features in accordance with the tax rules in force.

This compliance is based on the certified version of the Software, which is up to date and unmodified. Any modification, deactivation or interaction with another system not validated by the Service Provider may result in the loss of this compliance, without the Service Provider being liable in this regard.

Applicable Law – Disputes

This Agreement is governed by the French law, to the exclusion of any other legislation.

In the event of a dispute relating to the interpretation, validity, execution or termination of the Contract, express jurisdiction is granted to the Commercial Court of Nancy, including in the event of summary proceedings, incidental claims, third-party claims or multiple defendants, notwithstanding any contrary clause or any specific procedural regime.