ARTICLE 1 - PREAMBLE
The website http://www.sensiel.vivelys.com, the app SENSIEL and its extension SENSIEL ADVANCED (hereinafter, the "Service", collectively) offered by VIVELYS have been designed to satisfy the needs of several users.
Within its consultancy services, VIVELYS has made available to the Client a commercial proposal and/or the documentation presenting the Service, which the Client acknowledges being aware of. Pursuant to these general conditions, it is the Client's responsibility to ensure that the service is appropriate for their needs. For the purpose thereof, prior to accepting the Agreement, the Client has the right to request from VIVELYS all and any additional information and/or witness a demonstration test. The Client's failure to do so shall be deemed an acknowledgement of having been properly informed.
Under no circumstances will any specifications or written declaration of needs from the Client be considered by VIVELYS for the Agreement, except by express consent from VIVELYS to add them as annexes hereof, prior to the signing of these conditions. VIVELYS will adapt its services to the needs expressed by the Client only upon the signing of a specific agreement not regulated by these general conditions of use of SaaS.
The Client is considered to have read, understood and accepted the Agreement as defined in article 2, with no reservations.
The Agreement shall become effective upon the signing of the Order form and/or the authorization of debit either on paper or at the completion of the online purchase, making reference to these general conditions of use of SaaS and being valid as acceptance of the entire Agreement.
ARTICLE 2 - DEFINITIONS
For the execution hereof, the following terms shall be understood as detailed below:
Subscription: the duration of the Service and the number of Tests signed up for by the Client on the website and established in section "Ordered items" of the Order form or at the online purchase.
Client: the natural or legal person, co-contracting party of VIVELYS, acting for professional, commercial, industrial, artisan or liberal purposes.
User Account: the resources granted to a User through which the Client accesses the Service.
Agreement : either:
Documentation: the information provided by VIVELYS in the form of user documentation offered with the Service and/or in the form of online assistance.
Client Details: the information (excluding Personal Information) the Client is responsible for filling in, completing, sharing and processing in the use of the Service.
Personal Information: personal data pursuant to the General Data Protection Regulation of May 25, 2018 and to Law No. 78-17 of January 6, 1978 on Information Technology, Data Files and Liberties, or pursuant to any other applicable regulation, that the Client holds and fills in, completes, shares and processes in the use of the Service.
User Workstation: the Client's material and information technology devices used to access the Service.
Service: the app SENSIEL INITIAL and its extension SENSIEL ADVANCED, including the standard application services delivered online and the Support, charged as a purchase of a Subscription or as a consumption statement. The Service is intended for professional use. The Service is available every day, 24/7.
Support: the assistance in the use of the Service and the standard application services. Such assistance includes:
-help in the use of the software via email or phone (hotline hours: 9 am to 12 pm and 2 to 6 pm (French time);
-free statistical advice on sensory analysis.
Test: the sensory tests (triangular and profile) available for the User appointed by the Client after purchasing a Subscription and for the selected duration.
User: a natural person who is part of the Client's staff, authorized by the Client to access the Service for professional purposes as defined in article 5.2 below.
Tasters: a natural person who may be part of the Client's staff or part of Client's customers, authorized by the Client to use the service under their sole responsibility and to benefit from Services related to the function "Taster".
VIVELYS: the company VIVELYS, a simplified joint-stock company, with a capital of 2,000,000 Euros and headquarters located at Domaine du Chapitre - 34750, VILLENEUVE-LES-MAGUELONE (France), registered in the Trade and Corporate Register of Montpellier under No. 453 312 365, acting in the capacity of service provider to the Client in accordance with this Agreement.
The definitions above are written in capitals, either in singular or plural forms.
ARTICLE 3 - SUBJECT MATTER
VIVELYS is committed to providing Clients with the Service as per the general conditions of use of SaaS defined herein and as per the conditions of the corresponding Documentation.
PROVISIONS RELATED TO THE SERVICE
ARTICLE 4 - RIGHT TO ACCESS THE SERVICE
4.1. By paying the Subscription, established in section "Ordered items" of the Order form or at the online purchase, the Client is granted the right to access the Service, limited to one (1) User Account and to a number of Tests according to the chosen Subscription, items defined in section "Ordered items" and "Order form", or at the online purchase.
This right to access the Service is exclusively granted to satisfy the Client's professional needs.
4.2. VIVELYS is holder of the entire applicable intellectual property rights to the Service or declares, in case a third party holds the intellectual property, that the mentioned third party has granted VIVELYS the right to commercialize or distribute the Service. This Agreement shall not bestow the Client any property right to the Service, to its technology or to the intellectual property rights held by VIVELYS or a third party. The Client is forbidden to conduct reverse engineering of the Service in order to offer a competing product or service and/or to copy and reproduce any functionalities, functions or graphic characteristics of the Service.
4.3. THE CLIENT SHALL REFRAIN FROM THREATENING IN ANY WAY THE SERVICE, AND ESPECIALLY USE IT UNREASONABLY OR IN AN ABUSIVE WAY, OR INAPPROPRIATELY FOR OTHER PURPOSES AND UNDER OTHER CONDITIONS THAN THOSE ESTABLISHED IN THE AGREEMENT. IN PARTICULAR, VIVELYS WILL BE CONSIDERING AS UNREASONABLE OR ABUSIVE ALL USES OF THE SERVICE EXCEEDING 5 TEST PER DAY (WHICH MEANS APROXIMATELY 1000 TESTS PER YEAR).
4.4. The Client:
ARTICLE 5 - MODES OF EXECUTING THE SERVICE
5.1. VIVELYS commits itself to providing the Service in accordance with the dispositions contained in the Documentation, which specifically describes the content, the limitations, the duration, the associated processes, the mode of installation and upgrade, and the Support.
5.2. The Client shall use the Service under their own control and responsibility. Therefore, VIVELYS shall be released from any responsibility concerning the nature and the content of the Client's information and the use thereof. Likewise, VIVELYS shall be released from any responsibility regarding the quality and the electronic transmission of data as it is done through telecommunication networks, and regarding the quality and reliability of the telecommunication connections between the User Workstations and the Service access points.
5.3. The Service does not include jobs related to the installation and the good performance of the User Workstation and the Client's infrastructure (telecommunications, networks, security equipment) to access and use the Service. VIVELYS recommends the Client to use a computer, tablet or even a smartphone with iOS 8, Android OS 4.1 operating systems, or their most recent versions with Internet access.
5.4. Guarantee. VIVELYS exclusively commits itself to repairing, as diligently as possible, the failures in performance of the Service observed in relation to the Documentation. For that purpose, VIVELYS reserves the right to suspend the access to the Service in order to solve the failures.
This guarantee of conformity shall not be understood as a guarantee of conformity to the specific needs or the specific activity of a Client or User. VIVELYS does not guarantee the Service aptitude to achieve the goals or results the Client sets and/or to execute particular tasks that may have induced the Client to enter into the Agreement. Therefore, the Client or its representative is responsible for ensuring that the Service meets their needs or the demands of their specific activity in the territory where the Service is used.
To the fullest extent of the law, all and any guarantee other than the ones detailed in this article are expressly excluded.
5.5. The Parties agree that VIVELYS is in its capacity to, without restrictions, design, organize, adapt, modify and update the Service where necessary, with the partners and suppliers it selects, with no prior agreement from the Client as this does not release or diminish the commitment assumed by VIVELYS for the purpose of this Agreement.
5.6. Legislative changes. The Client is hereby notified that due to changes in legislations, the standard application services accessible by virtue of the Service may, at any moment, become unsuited for use. VIVELYS, fulfilling its Support tasks, shall update the standard application services in order to comply with the new legal dispositions under the condition that said adjustments or changes do not require the reformulation of substantial parts of the existing applicative services.
The Client is additionally notified that technological evolution and the customers' demands may lead VIVELYS to update its services.
5.7. VIVELYS is in its capacity to amend the Documentation of the service giving 30 days' prior notice to the Client and/or one of their Service administrators by mail and/or any other appropriate means. Pursuant to article 10.2, should the Client fail to terminate the Agreement during the 30-day period of prior notice about the modification of the Documentation, this shall be deemed accepted by the Client. The updated version of the Documentation shall be available at any moment on the application's website http://www.sensiel.vivelys.com/fr or on any other website indicated by VIVELYS.
ARTICLE 6 - INFORMATION
6.1. LOCALIZATION OF CLIENT DETAILS
Unless otherwise stipulated in the Documentation, the Client Details are stored in one or more servers around France (hereinafter, the "Country of storage").
In cases where Personal Information is:
In cases where France is the Country of storage, VIVELYS agrees to not transfer the servers storing Client's Personal Information outside France without the Client's prior consent.
6.2. USE OF CLIENT DETAILS / LICENCE
The Client remains holder of their Client Details.
The Client grants VIVELYS a non-exclusive license, free of royalties and fully paid, in order to use and exploit, reproduce and disseminate the Client Details and all the related elements (specifically the images, photographs, illustrations and figures) during the period indicated herein. The license abovementioned granted to VIVELYS is accepted by the Client all around the world and for the legal duration of the protection of intellectual property rights.
By virtue of the license abovementioned, the Client grants VIVELYS, relatively regarding the Client Details and limitedly, the rights to:
6.3. PERSONAL INFORMATION
Pursuant to these conditions, VIVELYS is authorized to process the Client's, the User's and the Tasters' Personal Information necessary to access and use the Service. Such information will be consulted, stored and used for the purpose of communicating with the Client regarding the follow-up of their Subscription. The Personal Information processed vary according to the information effectively shared in each operation, but shall be limited to the Client's, the Users' and the Tasters' name, surname, telephone number, and e-mail. The persons concerned are the Client and their staff.
Being personal information concerned, the parties agree to respect the applicable regulations on the processing of such information, and especially to follow the General Data Protection Regulation (EU) 2016/679 of May 25, 2018, and Law No. 2004-801 of August 6, 2004 on protection of natural persons with regard to the processing of personal data, amending Law No. 78-17 of January 6, 1978 on Information Technology, Data Files and Civil Liberties.
By virtue thereof, the Client is responsible for the declarations before the French National Commission on Informatics and Liberty (CNIL) regarding the processing of personal data conducted by the Client.
ARTICLE 7 - SERVICE DURATION
The duration of the Service is subject to the duration of the Subscription. Activating an additional optional Service while a service is in progress shall not modify the duration of the Service as defined above.
7.1. SUBSCRIPTIONS FOR PERIODS SHORTER THAN 12 MONTHS
The Service shall not be tacitly renewable in the case of Subscriptions for periods shorter than twelve (12) months. Therefore, the Client shall purchase a new plan in the Portal.
7.2. 12-MONTH SUBSCRIPTIONS
The Service shall be tacitly renewable in the case of Subscriptions for periods equal to twelve (12) months. Should a Party decide not to renew the Service, this shall notify the other Party by Registered Letter with Acknowledgment of Receipt three (3) billing months prior to the end of the Subscription period. During the renewal period, the Client is in their capacity to terminate the Service at any moment, with a prior notice of three (3) months as from the notification by Registered Letter with Acknowledgment of Receipt.
ARTICLE 8 - RECOVERY AND RESTITUTION OF DATA
The Service period expired and/or the Agreement terminated, the access to the Service functionalities shall be blocked on the last day of the Service or on the termination date.
The Client is in their capacity to recover the Client Details accessible through the Service functionalities, or to request VIVELYS to restitute a copy of the most recent Client Details saved within a limit of twenty-four (24) months after the Service expiration date or the termination of the Agreement.
Unless otherwise agreed, data shall be restituted in a market standard format selected by VIVELYS and made available for the Client as a downloadable file or, in case of big volumes, as an external storage device. The latter shall be charged for an amount limited to the cost of the device and its insured shipping.
FINANCIAL AND GENERAL DISPOSITIONS
ARTICLE 9 - FINANCIAL DISPOSITIONS
The price of the ordered items is indicated in Euros, tax excluded, in section "Ordered items" of the Order form or at the online purchase.
9.2. Billing, payment of Services and payment facilities.
VIVELYS shall charge the Service according to the Subscription purchased by the Client as follows:
Tests / units
1 Test only
Limited to 5 Tests, decreasing fee thereafter
Limited to 15 Tests, decreasing fee thereafter
Limited to 60 Tests, decreasing fee thereafter
Payment in advance.
Payment in advance.
30% payment in advance, 70% +60 days.
30% payment in advance, 70% +60 days.
Modes of payment
SURPASSING THE ACCESS LIMITS OR OVERUSING THE SERVICE WITH REGARDS TO THE ONES ESTABLISHED IN SECTION "ORDERED ITEMS" OF THE ORDER FORM OR AT THE ONLINE SUBSCRIPTION, SHAL RESULT IN AN UPDATE OF THE SUBSCRIPTION PRICE ACCORDING TO THE EFFECTIVE FEES.
In all cases, VIVELYS shall bill the Services in anniversary periods and not in civil calendar periods (monthly, quarterly, annually). If necessary, the first and/or last bill shall be issued pro rata.
For the Service, VIVELYS bills (online purchases included) shall be paid by the Client via direct debit without discounts within thirty (30) days of the bill issue date. The Clients commit themselves to providing their bank information (IBAN and BIC) and to completing the SEPA transfer either on paper or electronically. The Clients are in their capacity to choose the means of SEPA transfers provided that VIVELYS offers both options. Should the Client prefer SEPA Direct Debit B2B, it is their responsibility to previously ensure that their bank is able to process the transaction. From the moment of the SEPA transfer, and in cases where the Client successively signs several Agreements and chooses to pay, each time, the amounts due via direct debit, the Client agrees that each contract shall be subject to a common and unique debit authorization, the amount of which shall vary according to the addition or termination of the contracts over the course of time.
9.4. The payment period expired, VIVELYS shall, with no prior warning, demand a penalty for overdue payment calculated according to an interest rate equal to three times the legal interest rate.
9.5. Pursuant to article L 441-6 of the Commercial Code, the Client shall be, by operation of law, indebted to VIVELYS for a compensation of forty (40) euros (€) for collection expenses. Should the expenses exceed the amount of the compensation, VIVELYS shall be in its capacity to claim an additional compensation upon presentation of the receipts detailing the transactions made. These indemnities shall not apply in cases where the Client justifies they are involved in a receivership or liquidation procedure.
9.6. After fifteen (15) days of the notice of delayed payment by Registered Letter, VIVELYS reserves the right to suspend the Service and all other effective services until the total overdue sum is paid.
9.7. All unpaid charges due to a bank rejection of the Client's payment shall remain at the Client's expenses.
9.8. All the prices included in the Agreement shall be revisable once a year by VIVELYS, limited to three (3) times the variation recorded by the SYNTEC index, with a minimum of 1%. The reference index considered the basis for the price adjustment shall be the index of the current month compared to the index of the same month previous year. Should the SYNTEC index disappear, the President of the Commercial Court of Montpellier shall be competent to substitute said index for any other deemed appropriate.
ARTICLE 10 – RETRACTION - TERMINATION
10.1. Termination due to breach of the contract.
Should the Client fail to comply with their obligations, by operation of law, the Parties are in their capacity to, without detriment to all damages, terminate this Agreement by notifying the other Party via Registered Letter with Acknowledgment of Receipt. The termination hereof shall become effective three (3) months after the reception of the letter abovementioned, unless the Party concerned justifies the appropriate remedies.
10.2. Termination by application of article 5.6.
Should VIVELYS modify the Documentation by virtue of article 5.6 and said amendments reduce the commitments of VIVELYS regarding the availability rate, the management of backups and the Support access conditions, the Clients are in their capacity to terminate the Service in advance, notifying VIVELYS by Registered Letter with Acknowledgement of Receipt and without compensation for any Party. The Client shall send the termination notification to VIVELYS within the month following the notification made by the company about the amendment of the Documentation by virtue of article 5.6.
The termination of the Service shall become effective six (6) months after the expiration of the one-month notice term established in article 5.7 for the Client to find an alternative solution.
ARTICLE 11 – RESPONSIBILITIES
11.1. Taking into consideration the wide knowledge and expertise in its profession, VIVELYS, who commits to do its best to execute its obligations, is subject to a best-endeavor obligation.
11.2. VIVELYS shall be held liable only for direct and foreseeable damages resulting from a breach of its obligations. In such case, the global and accrued compensation the Client shall be entitled to, without detriment to the cause, will be limited to the amount invoiced to the Client during the last twelve (12) months before the occurrence of VIVELYS' misdemeanor.
11.3. Under no circumstances shall VIVELYS be held liable to the Client or to a third party for any unforeseeable or indirect, material or immaterial damages such as loss of profits from interruption of business, loss of benefits or reputation or any other financial loss resulting from the Client's use or impossibility to use the Service, as well as for any other loss or deterioration of information for which VIVELYS cannot assume responsibility. All and any damages suffered by a third party shall be considered an indirect damage and shall not grant any compensation.
11.4. The Parties acknowledge that the prices appearing in the Agreement reflect the allotment of risks resulting from the Agreement and the economic balance desired by both Parties, and that this Agreement would not have been celebrated under these conditions without the limited liabilities established herein. The Parties expressly agree that the limited liabilities shall be effective even in the case of cancellation or termination hereof.
ARTICLE 12 – FORCE MAJEURE
12.1. No Party shall be held liable for any breach of the contract in cases where they have been prevented from performing an obligation due to circumstances of force majeure as established in article 1218 of the Civil Code.
The Parties expressly agree that force majeure events include, for the purpose of this clause, the malfunctioning of telecommunication operators and telecommunications in general, given that said malfunctioning are not considered originated by the technical means provided by VIVELYS.
12.2. In such case, the Party referring to force majeure shall, as soon as possible, notify the other Party by Registered Letter with Acknowledgement of Receipt about the occurrence of the circumstance and the necessary extension of deadlines to perform the obligations. Should the impediment be temporary, the execution of the obligation shall be suspended until the Party referring to force majeure is no longer affected by the circumstance. The Party referring to force majeure shall keep the other Party informed, and commits themselves to doing their best to limit the duration of the suspension. Should the suspension continue for a period longer than three (3) months, both Parties shall be in their capacity to terminate the Agreement with no rights to compensation, notifying the other Party by Registered Letter with Acknowledgement of Receipt.
Should the impediment be definitive, the contract shall be terminated by operation of law and both parties shall be released from their obligations under the conditions provided in articles 1351 and 1351-1 of the Civil Code.
ARTICLE 13 – CONFIDENTIALITY
All and any information, data (the Client Details excluded), deliverables and/or any know-how, protected or not by intellectual property laws, of any form and nature (commercial, industrial, technical, financial, etc.), exchanged between the Parties or learnt in the performance of this Agreement, shall be considered confidential (hereinafter, the "Confidential Information").
Both Parties commit themselves to using the Confidential Information solely within the performance of this Agreement, to protecting the Confidential Information and to not disseminating it, without the prior written authorization from the other Party, to third parties other than their employees, collaborators, branches and subcontractors who may need to know the Confidential Information to perform the Agreement. The Parties commit themselves to implementing all the necessary measures to aware their employees, collaborators, branches and subcontractors having access to Confidential Information of the confidentiality of the information shared with them, and to ensuring they respect the obligations resulting from this clause.
Both Parties shall be released from the confidentiality obligations regarding (i) all and any information they held before its dissemination by the other Party, without said information having been acquired directly or indirectly by the unauthorized dissemination by a third party, (ii) information of public domain as of the date of acceptance of the Agreement or that becomes of public domain after said date without constituting the Party's liability for any breach of the confidentiality obligations herein, (iii) information that has been independently produced by the Party, or (iv) information whose dissemination be required by law or by a competent administrative or judicial authority, or information necessary to defend the interests of any Party in a lawsuit.
The Parties commit themselves to respecting the obligations resulting from this article for the entire duration of the Agreement, as well as for three (3) months following its termination.
For this purpose, upon the conclusion or termination of the Contract, each Party shall restitute the other all and any documents containing confidential information or ensure the other Party the destruction thereof. Under no circumstance shall a Party keep a copy of the documents containing confidential information unless otherwise exceptionally agreed in written by the other Party.
ARTICLE 14 – CESSION
14.1. The Agreement, and the rights and obligations established herein are "intuitu personae". Therefore, the Client shall refrain from transferring, by any cause or in any form, for a valuable consideration or for free, these general conditions or any of its rights and obligations to a third party.
14.2. The Client agrees that VIVELYS shall be in its capacity to totally or partially subcontract its obligations for the purpose of these conditions, with no prior formalities or authorization and under its own responsibility. Should there be any subcontractor, VIVELYS shall be the sole responsible for complying the obligations established in the Agreement.
ARTICLE 15 - MISCELLANEOUS PROVISIONS
15.1. The failure of a Party to enforce any of the obligations of this Agreement shall not constitute thereafter a waiver of that obligation.
15.2. This Agreement prevails over any other document, including the Client's potential general conditions of purchase. Unless otherwise expressed, the terms and conditions, and the obligations herein shall prevail over all others.
15.3. Should any of the provisions of this Agreement be considered or declared invalid in the application of a law or due to a definitive decision made by a competent court, all other provisions shall keep their validity and scope.
15.4. The Client authorizes VIVELYS to mention their name and/or reproduce their logo in commercial documents and press announcements of any form and medium.
15.5. VIVELYS shall be in its capacity to use the know-how acquired in the execution of this Agreement and to provide similar services to other Clients.
15.6. VIVELYS reserves the right to charge the Client for the time spent investigating the cause of any incident found by the Client, that has not been originated by a Service or by any other item provided by VIVELYS for the purpose of this Agreement.
15.7. VIVELYS commits itself to maintaining a valid professional civil liability insurance to cover the damages that may result from the execution of the Service.
15.8. The Parties have measured the risks related to the performance of the Agreement. Therefore, the Parties accept them and assume them, waiving the right to renegotiate the terms and conditions without detriment to the circumstances. It is therefore expressly agreed by the Parties not to apply article 1195 of the Civil Code.
ARTICLE 16 – APPLICABLE LAW AND JURISDICTION
THIS AGREEMENT IS CONSTRUED UNDER THE LAWS OF FRANCE IN BOTH FORM AND SUBSTANCE. ANY DISPUTE ARISING FROM THE PERFORMANCE OF THIS AGREEMENT WHICH FAILS TO BE AMICABLY SETTTLED SHALL BE EXPRESSLY BROUGHT BEFORE THE COURT OF COMMERCE OF MONTPELLIER, NOTWITHSTANDING PLURALITY OF DEFENDANTS OR CALL IN GUARANTEE.