General terms and conditions of the e-commerce solution in SaaS mode
Updated on June 4, 2024.
Preamble
The Provider is the company VIVLAB, a simplified joint-stock company with share capital of 115,000 euros, whose registered office is located at 61 rue de Lyon, 75012 Paris, and registered with the R.C.S. of Paris under number 829 891 936, represented by its President, Mr. Jean-Michel Khou, President, domiciled in this capacity at said registered office (the « Provider »).
The Provider is a Software as a Service provider (known as a « SaaS » provider).
The Provider has designed, developed and made available to its Clients a ready-to-use e-commerce website IT solution (the « Solution »), accessible online from the Platform and branded VIVLAB® (the « Services »).
The Client wishing to use the Solution offered by the Provider wishes to subscribe to the Services made available by the Provider under the following conditions.
It is the Client's responsibility to ensure that the Services are suited to its own needs, in particular on the basis of the information provided in the documentation and presentation of the Solution and Services, accessible on the Website, which it acknowledges having read before any order.
Subscribing to the Services implies the Client's acceptance of these General Terms and Conditions and express waiver of its own general terms of purchase.
Article 1. Definitions
Terms beginning with a capital letter within the Contract, whether used in the singular or plural, shall have the meaning given to them below.
« Subscription »
means the granting to the Client of a non-exclusive, nominative, personal and temporary right of use of the Solution, and access to the Provider's Services for the same duration;
« Contract »
means all the stipulations set out in the General Software Service Conditions (or « GSSC »), as well as any amendment that may supplement, modify or replace them, it being specified that the preamble and the appendices form an integral part thereof. The parties acknowledge that the Contract is synallagmatic (art. 1106 [new] Civil Code), for consideration (art. 1107 [new] Civil Code), and of successive performance (art. 1111-1 [new] Civil Code);
« Client »
the natural or legal person who, for the purposes of its professional activities, purchases the Services;
« Client Account »
means the private space accessible to the Client on the platform allowing it to access the Services;
« Data »
means the information, publications and, more generally, the data of the Client's database, the use of which is the subject of this Contract, which may only be consulted by the Users;
« Identifiers »
means both the user's own identifier (« login ») and the connection password (« password »), communicated when creating a Client Account;
« Internet »
means the set of interconnected networks, located in all regions of the world;
« Intranet »
means the computer network specific to a company or organization, using the TCP/IP protocols and, more generally, Internet technologies, and which may be connected to the Internet network;
« Maintenance »
Means the corrective maintenance service of the Solution and the assistance/support for using the Solution. The amount of this service is included in that of the Fee. The Provider's commitments under Maintenance are strictly defined in article 17 « Maintenance – Assistance/Support – Hosting ».
« IT Resources » means the computer hardware and systems (processing and data servers, operating systems, data management and access programs, backup and security devices) installed in a protected site, and operated by the PROVIDER or its subcontractors, for the provision of the Services.
« Parties »
means the Provider and the Client;
« Platform »
means all the hardware and software of the hosting data center in which the Solution is installed and from which the Services are provided to the Client through its Client Account; accessible via https://dashboard.vivlab.com/
« Prerequisites »
means the list of hardware and devices (in particular telecommunications, telecom links, routers, workstation configuration, processor, display) recommended by the Provider for using the Services, below which the provision of the Services is not guaranteed. The Prerequisites are listed on the Website.
« Provider »
means the Company VIVLAB as defined in the preamble of the Contract;
« Fee »
Means the sum due by the Client to the Provider in exchange for the right to benefit from the Services, excluding additional services identified as such in the Special Conditions (implementation phase, training, etc.).
The Fee is invoiceable and payable under the conditions set out in this Contract;
« SaaS »
means business applications rented online;
« Services »
means all the services offered in SaaS mode by the Provider allowing the Client to use the Solution installed on the Platform, such as making the Solution hosted by the Provider available, carrying out configurations, processing the data communicated, backup, as well as maintenance and support service;
« Website »
means the website published by the Provider and accessible at the URL address https://vivlab.com/
« Solution »
means all the operational functions made available to the Client within the framework of the Services, object of the Contract;
« Custom »
means all the operational functions made available to the Client within the framework of the Services, object of the Contract;
« User »
means the Client and/or the person placed under the Client's responsibility (agent, employee, representative, etc.) and benefiting from access to the Services available on the Platform in the name and on behalf of the Client and for personal use. ;
Article 2. Purpose
The purpose of this Contract is to define the terms and conditions under which, on the one hand, the Provider makes its services available and, on the other hand, the Client accesses the services and solution.
The Provider grants the Client, who accepts:
- a right of access to the Solution and to the related Services of the Provider under the conditions defined below;
- a right of end use of the Solutions;
- a set of Services defined below, in particular data hosting, maintenance of the Solution, and technical assistance.
The Client may not assign all or part of the rights and obligations arising from this Contract without the prior written consent of the Provider.
It is specified that, for the proper performance of these terms, the Client undertakes to notify the Provider as soon as possible of any change of its correspondence address (email or postal box). The Provider shall in no event be liable for the consequences of the Client's failure to notify this information.
The Contract is accessible at any time on the Website.
Any contrary condition put forward by the Client shall, failing express acceptance, be unenforceable against the Provider, regardless of when it may have been brought to its attention.
The fact that the Provider does not avail itself at a given moment of any of the clauses herein may not be interpreted as a waiver of its right to later rely on any of said clauses.
The Provider reserves the right to modify the Contract at any time. The applicable Contract is the one in force on the date of subscription. Amendments to this Contract are enforceable against users of the Website from the moment they are posted online and may not apply to earlier subscriptions.
Unless proven otherwise, the data recorded in the Provider's computer system constitute proof of all transactions concluded with the Client.
In accordance with the French Data Protection Act of January 6, 1978, the Client has, at any time, a right of access, rectification and objection to all of its personal data by writing by mail and justifying its identity, to: VIVLAB 61 rue de Lyon 75012 Paris. The Client declares that it has read these CONTRACT terms and accepted them before initiating the subscription procedure, as well as the general terms of use of the Website.
Validation of the order by the Client constitutes unrestricted and unreserved acceptance of this Contract. The Client acknowledges having the required capacity to contract and subscribe to the Subscriptions available on the Platform.
Article 3. Contractual Documents
These CONTRACT terms together with the documents entitled « Appendices » constitute the entire agreement between the Parties.
It replaces and cancels any prior oral or written commitment relating to the subject matter of the CONTRACT. The CONTRACT consists of the following contractual documents, presented in decreasing order of legal value: - this document; - the appendices to this document. In case of contradiction between one and/or more provisions appearing in any of these documents, the document of higher rank shall prevail.
The appendices to this document, which form an integral part of the Contract, are as follows: Appendix 1: Quality Charter Appendix 2: Services Booklet Appendix 3: List of Prerequisites
Article 4. Description of Services
4.1. Solution
The Provider makes the Solution accessible on the Website available to the Client through the internal network and in accordance with the provisions of Appendix 2.
Under the conditions of the article « Concessions of Rights of Use of the Solution », the Provider grants the Client the right to use, non-exclusively, the Solution designated on the Website.
It is understood that the Services do not include the following services, which are therefore excluded:
- work and interventions concerning the User's workstation and the Client's infrastructure (telecommunications, networks, security equipment) enabling the Client to access and connect to the IT Resources;
- resolution of problems caused by an error or improper handling by Users not compliant with the rules of use,
- connection of the IT Resources to the Client's network.
- connection to an electrical network.
Access to the Solution and the Services requires the Client to have access to a telecommunications network, which is provided by a telecommunications operator under its responsibility and at the Client's choice.
It is understood that the Solution relies on the services provided by the company Stripe, and Clients must comply with its terms of use/sale (available at https://stripe.com/fr/ssa) and its restrictions (available at https://stripe.com/fr/restricted-businesses).
The Provider guarantees, from the date of access to the Services, against any programming defect for a period of three months. This guarantee is no longer valid if a third party intervenes in the programs.
Beyond this three-month period, any intervention requested by the Client will be invoiced based on the rate in force under the maintenance services provided in article 10 of the Contract.
The Provider ensures the hosting of the Data, the maintenance and the security of the Solutions.
The Provider performs the backup of the Data under the conditions defined in Appendix 2 Quality Charter.
Services are provided in accordance with the Quality Charter set out in Appendix 2.
4.2. Custom Services
Article 5. Access to the Solution
Access to the Services requires the creation of, or connection to, a Stripe account, the creation of a Client Account, and the subscription to one of the Subscription offers proposed by the Provider on the Website.
The Client alone will use this access right.
It may connect at any time – except during maintenance periods –, namely:
- 24 hours a day,
- 7 days a week,
- including Sundays and public holidays,
- with assistance from the Provider's technical teams.
The access procedure defined by the Provider and annexed hereto, within the framework of the Quality Charter, must be strictly complied with by the Client.
Access is made:
- from the Client's computers.
- from any mobile Client computer
- by means of the Identifiers provided to the Client.
4.1. Access Conditions
The Solution and the related Services are offered to any legal or natural person acting in a professional capacity.
The Provider may ask the Client to provide any information necessary to define the scope of its activity.
4.2 Creation of a Client Account
Any Client may freely create a Client account through the « Log in » section on the Website.
The creation of a Client account is carried out by the Client by connecting its Stripe account to the Vivlab Stripe account via Stripe Connect.
The Client will then be redirected to a secure Stripe page.
If it already has a Stripe account, it will be invited to log in.
If it does not have a Stripe account, it will be invited to create one by filling in the form offered for its company and identification details.
Once the Stripe connection is established, the Client will be redirected to the back office of its e-commerce website.
This account is strictly personal to it.
When creating the Client Account, the Client enters the data that allows its identification under its full responsibility, controls and direction, and undertakes to provide complete, accurate and up-to-date information, not to impersonate a third party, nor to conceal or modify its age.
When creating a Client Account, the Client chooses its identifier (email).
A password generated automatically and securely will be sent to it by email once the Stripe connection is effective.
If the chosen Identifier is already assigned, the system invites it to choose another one.
The Client will use the Identifiers at each connection to the Services. The Identifiers are intended to reserve access to the Solutions covered by the Contract to the Client's Users, to protect the integrity and availability of the Solutions, as well as the integrity, availability and confidentiality of the Client's Data as transmitted by the Users.
The Identifiers are personal and confidential. They may only be changed at the Client's request or at the Provider's initiative, subject to prior notice to the Client. The Client undertakes to do everything possible to keep the Identifiers concerning it secret and not to disclose them in any form whatsoever. The Client is fully responsible for the use of the Identifiers and for keeping the access codes provided to it. It shall ensure that no other person not authorized by the Provider has access to the application Services and the Solutions. In general, the Client assumes responsibility for the security of the individual workstations used to access the Solutions.
In case of suspicion that the identifier and password are being used by a third party, the Client must immediately alert the Provider in order to change its password and/or choose to have its Client Account closed.
The Provider reserves the possibility of closing any Client account and consequently refusing any subscription from a Client in the following cases:
- No login for two (2) consecutive years;
- Abusive, disloyal or fraudulent use of the Solution offered on the Website, or failure to comply with any of the Client's obligations defined in this Contract.
In this case, the Provider sends an email to the relevant Client at the address provided by the latter when creating its Client account, informing it of the deactivation of its identifier and password and of the closure of its Client Account.
In general, the Client is informed that its account may be closed following the Client's first request sent by email to the Provider.
The Client undertakes not to create or use any accounts other than the one initially created, whether under its own identity or that of a third party, unless expressly and specifically authorized by the Provider.
The Client undertakes to the accuracy of the data it provides when creating its client account. Any inaccuracy will result in the immediate suspension of the Client account.
4.3. Subscription to Services / Subscription
The Services are subscribed to directly by the Client from the Website in the form of a Subscription.
Any Subscription necessarily requires the registration or identification of the Client.
It implies a payment obligation.
It is the Client's responsibility to select on the Website the Subscription to which it wishes to subscribe and click « Log in » to follow the connection process to the Platform.
Once the connection to the Platform is established, it is the Client's responsibility to pay the invoice received by email within 30 days in order to access all the Services.
Subscription offers are valid as long as they are visible on the Website. The characteristics and terms of the subscriptions are presented on the Website. The Client is required to read them before placing any order. The choice and subscription to a Subscription, and its suitability to the Client's needs, are the sole responsibility of the Client.
4.4. Entry into Force / Commissioning
Information relating to the subscription to the Services is brought to the Client's attention at the time of the order.
The Contract is deemed formed upon the Client's acceptance of these terms and the Provider's receipt of all the information that must be transmitted as part of the subscription to the Services.
The Subscription will take effect immediately upon subscription by the Client.
As such, the Client will have access to part of the Services offered as soon as the subscription is activated.
The Client will have access to all the Services offered once the subscription invoice has been paid.
The Client will receive an email indicating the commissioning date and the planned end date.
4.5. Duration / Renewal / Suspension
Annual subscription. The Services are concluded for an initial period of one year.
The Provider will notify the Client by any written means, at least one (1) month before its expiry, of the due date of the annual Subscription and the renewal terms proposed to the Client.
In the absence of a response from the Client within fifteen (15) days from notification, the Subscription will be renewed under identical conditions.
Article 6. Financial Provisions
6.1. Financial Conditions
The Service fees are indicated in euros and are exclusive of tax and fees.
The billing address is the Client's registered office address.
The Services will be invoiced on an annual subscription basis.
If the Client benefits from a discount or promotional code, it is its responsibility to ensure it is entered in the appropriate section during the subscription process. It will not be possible to enter a promotional code or benefit from a discount offer once the subscription has been confirmed.
The rates applicable to the Services are those indicated on the Website. In the event of a change in the Provider's rates, these new rates will apply to the Client at the end of the current contractual period and will therefore take effect upon renewal of the Contract.
The Provider's invoices will be paid by the Client by automatic direct debit (by credit card via Stripe).
6.2. Promotion or Discount Codes
Any promotion or discount code, to be valid, must be entered during the order confirmation process. Discounts may not be used in combination with any other promotional offers.
Offers are only valid for a limited time. The Provider reserves the right to end these offers without prior notice. Promotional offers may not be used in combination with any other discount. Likewise, if a Subscription is taken out before being subject to a promotional offer, the Provider will not refund the price difference.
6.3. Payment Default
Without prejudice to any damages and interest, the Client's failure to pay an invoice when due automatically entails:
- the application of late-payment interest equal to three times the legal interest rate, without prior formal notice, from the first day of the payment delay;
- additional bank and management fees (collection follow-up, letters and telephone reminder costs, representation of rejected direct debits);
- immediate suspension of the Services after notification by email and notification on the Platform by the Provider;
- termination with immediate effect by right of the Subscription and access to the Platform within three (3) months after the Provider sends a formal notice to pay, which may be sent in any form (registered letter with acknowledgment of receipt or electronic mail) that remains unsuccessful.
Article 7. Concession of Rights of Use of the Solution
5.1. Scope of the Concession
The Solution accessible under the Services remains the property of its author.
Consequently, the Client acquires, by virtue of the Contract, only a personal, non-exclusive, non-assignable and non-transferable right of use of the Solution for the entire duration of the selected Subscription and worldwide.
The Client may only use the application Services and the Solution in accordance with its needs and their documentation. In particular, the license relating to the Solution is granted solely for the purpose of allowing the Client to use the Services, to the exclusion of any other purpose.
In particular, the Client may under no circumstances make the Solution available to a third party, and strictly prohibits any use other than those defined by the Provider.
The Provider expressly reserves the exclusive right to intervene on the Solution, in particular to correct errors.
5.2. Client Obligations under the Rights Concession
The Client undertakes not to infringe, directly or indirectly, the author's property rights and in particular:
- to use them only in accordance with their purpose, i.e., in accordance with their associated documentation and solely for the needs of its activity;
- not to assign its right of use under any title whatsoever;
- to ensure that its personnel complies with these stipulations.
Any breach by the Client of its obligations will entitle the Provider to terminate this Contract immediately and automatically, without prejudice to any damages and interest, one month after the Client receives a registered letter with acknowledgment of receipt notifying the breaches found, which remains without effect.
Article 8. Technical Provisions Relating to the Services
8.1. Hosting
The IT Resources are hosted and operated in a secure environment, ensuring access control, service continuity, storage and protection of data, equipment operation, and connectivity to remote networks.
The Provider may, without compensation to the Client, carry out service interruptions. Shutdowns are scheduled for version changes, platform upgrades or other major interventions. These shutdowns are generally planned outside office hours. A message notifying planned interventions will be sent to the Client.
In case of absolute necessity (loss of data integrity, virus alerts, etc.), the Provider may carry out emergency shutdowns.
In such a case, the Provider undertakes to inform the Client by email at the address provided by the Client when creating its Client Account.
8.2. Administration
8.2.1. Administration of the Solution: the Provider will monitor the Software made available to the Client under the Services and will provide it with the benefit of improvements through new versions, releases and « patches » available.
8.2.2. Database administration: the Provider will administer the databases on which the Solution relies.
7.3. Security Management
The Provider undertakes to implement technical means capable of ensuring the physical and logical security of the IT Resources. As soon as either party becomes aware of it, each party shall promptly notify the other party of any fact likely to constitute an attack on the physical or logical security of the other party's environment (for example, an attempted intrusion).
Article 9. Client Obligations
For the proper performance of these terms, the Client undertakes to actively, regularly and loyally collaborate with the Provider.
The Client confirms that it has read, prior to subscribing to the Services, the technical characteristics of the Solution and the associated documentation.
Any processing, transmission, dissemination or representation of information or data via the Portal by the Client is carried out under its sole and full responsibility and in strict compliance with legal and regulatory provisions.
The Client undertakes not to develop or market software solutions that are the subject of this Contract or products likely to compete with it.
To ensure close collaboration between the parties, the Client designates within its organization a manager responsible for communication with the Provider's services.
The Client further undertakes to report without delay any anomaly concerning the use of the Solution.
The Client also undertakes not to hinder or disrupt the Services and the Provider's servers, and to comply with the required conditions, procedures and general rules communicated to it by the Provider.
The Client therefore acknowledges being the sole and exclusive party responsible for its Identifiers. It alone shall bear the consequences that may result from their use by third parties who have become aware of them. The Provider disclaims any liability in this respect.
In the event of loss of its Identifiers, the Client undertakes to inform the Provider in writing as soon as possible, at the address support@vivlab.com.
Article 10. Maintenance - Hosting
The Provider handles the corrective and evolutionary maintenance of the Solutions.
10.1. Corrective Maintenance
A support service by mail to handle anomalies is available via support@vivlab.com. The response time is estimated at 48 business hours. Anomaly reports must be confirmed by email to the Provider without delay. The Provider diagnoses the anomaly and then implements its correction.
(a) In the event of a blocking anomaly, the report will be handled within 48 business hours. The Provider endeavors to correct the blocking anomaly as soon as possible and proposes a workaround.
(b) In the event of a semi-blocking anomaly, the report will be handled within 48 business hours. The Provider endeavors to correct the anomaly and proposes a workaround allowing use of the functionalities concerned within 48 business hours.
(c) In the event of a minor anomaly, the report will be handled as soon as possible, and the correction of the minor anomaly will be proposed in a new version of the Service delivered as part of evolutionary maintenance.
The Provider is not responsible for maintenance in the following cases:
- the Client's refusal to cooperate with the Provider in resolving anomalies, in particular to answer questions and requests for information;
- use of the application Services in a manner not compliant with their purpose or documentation;
- unauthorized modification of the Solutions by the Client or a third party;
- breach by the Client of its obligations under the Contract;
- installation of any software, programs or operating systems not compatible with the application Services;
- use of incompatible consumables;
- failure of electronic or electrical communication networks;
- deliberate act of damage, malice, sabotage;
- deterioration due to a case of force majeure or to misuse of the application Services.
10.2. Evolutionary Maintenance
Updates and/or new versions of the Solution are provided to the Client, installed and put into production on the Platform by the Provider, without intervention from the Client, at a frequency solely determined by the Provider. The terms of the Contract, in particular the right of use of the Solution granted to the Client, apply to any update or new version installed by the Provider on the Platform. As part of the evolution of its Solution, the Provider freely reserves the right to change the functionalities, without any reduction in the availability rate and without removing the functionalities of the Solution described in Appendix 2.
10.3. IT Infrastructure of the Platform
To meet the availability rate, the Provider has chosen a Platform whose IT and Internet infrastructure is available 24/7, 365 days a year and meets the best market requirements.
10.4. Physical and Logical Security of the Platform
Network access to the Platform is tightly controlled (audit and intrusion detection, vulnerability audit, etc.). The physical infrastructure of the Platform is secured at several levels: (i) geographical access site to the Platform guarded and monitored 24/7; (ii) secure site access; (iii) electrical security of the Platform; (iv) fire protection of the premises housing the Platform; (v) no physical access to the Platform, except for the system administrator of the Platform and the Provider.
10.5. Logical Security of Client Data
Client data is protected: (i) each domain of the Solution is partitioned, the Client only accesses its own data.
(ii) personal access for Users authenticated by login (identification of the User) + password.
Pursuant to laws no. 2015-912 of July 24, 2015 and no. 2015-1556 of November 30, 2015, and in the event that the Provider has encrypted all or part of the Client's data under the Contract, the Provider reminds the Client that, under penalty of criminal sanctions, « [providers] who supply cryptology services aimed at ensuring confidentiality are required to hand over within 72 hours to agents [of specialized intelligence services], upon their request, the agreements allowing decryption of the data transformed by means of the services they have provided. Agents [of specialized intelligence services] may request cryptology service providers to implement these agreements themselves within 72 hours, unless [the cryptology service provider] demonstrates that it is not in a position to comply with these requisitions ».
Article 11. Technical Assistance – Support for the Use of the Services
The Provider provides assistance (support) relating to the use of the Services in French, by electronic messaging solely for the benefit of the Client, during the following hours: 10:00 AM–6:00 PM on business days. The amount of this service is included in that of the Fee.
Article 12. Protection of Personal Data
12.1. The Client is solely responsible for data processing
12.1.1 The Client is the sole owner of the data, in particular personal data, processed through the service. In the event of termination of the Contract, for whatever reason, the Client's data, in particular personal data, will be fully returned to it as set out in article 16.4 « reversibility and restitution of client data ». All rights of the data subjects (right of access, rectification, etc.) must be exercised by such persons directly with the client, the provider undertaking to comply with any written instructions from the client in this regard.
12.1.2 In accordance with European and French legislation on the protection of personal data [hereinafter collectively, « General Regulation on Data Protection » or « GDPR »], before any use of the software or service by the Client and throughout the duration of the Contract, the Client guarantees to the Provider: (i) that it has collected and processes the personal data lawfully, fairly and transparently, for specified, explicit and legitimate purposes that the provider cannot know and about which the Client declares to have duly informed the data subjects. Consequently, the obligations of prior declaration relating to the processing of its personal data with a supervisory authority are its sole responsibility, and the Client guarantees to the Provider that it has carried them out; (ii) that it is solely responsible for the processing of the personal data it collects, enters or processes when using the service; (iii) that it alone determines the purposes and means of the processing of its personal data carried out in particular through the use of the service. Consequently, it is for the Client, prior to using the service, to verify that the processing of personal data requested from the provider complies with the purpose and means of the processing of personal data implemented by the Client, so that the provider cannot have its liability incriminated on this basis, on any grounds whatsoever. Otherwise, the Client undertakes to indemnify and hold the provider harmless, without restriction or reservation, from any consequence, in particular financial, imposed on the provider.
12.2 The Provider is a subcontractor for the processing of
the Client's personal data.
12.2.1 The Provider acts as a subcontractor for the processing of the Client's personal data within the meaning of article 28 of EU Regulation 2016/679 and article 35 of French Law no. 78-17 of January 6, 1978. Consequently, the provider undertakes (i) not to process the Client's data otherwise than under the conditions of the Contract and (ii) not to carry out any other processing of the Client's personal data that is not provided for in the Contract, except on the Client's written instruction.
12.2.2 The Provider reminds the Client that, pursuant to article 28.3 h) para. 2 of EU Regulation 2016/679, any new request for processing of the Client's personal data by the Provider, even on the Client's express instruction, which could result in non-compliance with the GDPR, entails the Provider's obligation to immediately inform the Client. The Provider reserves the right to refuse Client instructions that appear to it to be unlawful within the meaning of articles 82.2 and 82.3 of EU Regulation 2016/679. A written and documented refusal by the provider in these circumstances may not allow the Client to terminate the Contract, except where the Client engages its liability towards the Provider.
12.3 Security and Confidentiality of Personal Data
12.3.1 The Provider only technically processes the Client's data to provide the Services, to the exclusion of any other use, for the benefit of the Provider or third parties. In accordance with the GDPR, personal data is stored and processed by the Provider on servers located exclusively within the territory of the European Union and is not transferred outside the European Union.
12.3.2 The Provider undertakes to ensure the security and protection of the confidentiality of the Client's personal data, in particular to prevent it from being distorted, damaged or disclosed to unauthorized third parties. The details of the technical measures ensuring the security and confidentiality of the Client's data are set out in article 8. The Provider undertakes to ensure, and to have respected by any technical provider responsible for implementing the service, in particular the platform acting as a subcontractor of the provider, the strictest confidentiality and the strictest security in the process of processing, storage and backup of the Client's personal data, in accordance with the rules of the art, in strict compliance with the GDPR and in accordance with the provisions of the Contract.
12.3.3 In accordance with art. 33.2 of EU Regulation 2016/679, the Provider undertakes to inform the Client without delay of any personal data « breach » (unauthorized access, unauthorized copying, corruption of personal data files, etc.)
of which it becomes aware, it being the Client's responsibility to inform (i) the supervisory authority on which it depends, and (ii) when this breach « is likely to result in a high risk to the rights and freedoms », the data subjects.
12.4 Audit at the Client's Request
12.5.1 The Client may, if it wishes, carry out an audit, at most once per calendar year and at its own expense, either directly or through any independent external provider who is not a direct competitor of the Provider, in order to verify the Provider's compliance with its obligations. The auditor must first sign a confidentiality undertaking with the provider on terms similar to those of article 15.
12.5.2 The Client shall communicate to the provider, in advance and within a reasonable time, any audit request, the date of the audit, as well as the name and references of the persons in charge of the audit.
The provider may not refuse, without legitimate reason, the persons designated to carry out the audit.
12.5.3 The Provider shall cooperate in good faith with the auditor and shall communicate to it all the information, documents or explanations necessary for carrying out the audit and shall allow it to access the appropriate parts of the Solution and the Client's Data. The logical connections to access the client's data will be made by the provider at the auditor's request.
12.5.4 The right of access and audit relating to the platform may only be exercised with the agreement of the Platform and under its pricing conditions. The access procedures to the Platform will be communicated by the Provider to the Client, which undertakes to strictly comply with them.
12.5.5 The time spent by the provider, as well as the machine time required for the audit, shall be borne by the provider up to a limit of eight (8) business hours per year. Time spent beyond this, as well as all costs incurred by the Provider as a result of this audit, will be invoiced to the Client on a time-spent basis and according to the profile of each Provider employee, at the Provider's rate in force on the date the audit is carried out.
12.5.6 A complete copy of the audit report will be sent free of charge by the auditors to the Provider, so that the Provider may submit to the Client its observations or any remarks in writing. The audit report is confidential within the meaning of article 15.
12.5 Control by the Tax Administration
12.6.1 Within the framework of any legal and regulatory obligations incumbent on the Client in France regarding backup, archiving and restitution of data, provided in particular by the General Tax Code (CGI) and the Book of Tax Procedures (LPF), the Provider undertakes to make available to the Client all the elements that may be requested from the Client by the administration and that are in its possession as a result of providing the Services, to enable the Client to respond to requests and/or audits from the administration, in particular the books, registers, documents or records on which the communication, investigation and control rights of the administration may be exercised, as well as the basic data, processing and documentation of the provider relating to the Solution or the Services.
12.6.2. The Provider undertakes, at the Client's written request, to: (i) assist the Client (excluding any legal assistance) in responding to any request for information from the administration concerning the Solution or the Services, (ii) assist the Client in providing the identification, location, availability and legibility of a backup copy of the Client's data requested by the administration, (iii) fully cooperate to facilitate access for the Client and the administration to the Client's data processed by the Services.
12.6.3 The Provider undertakes to provide the administration with the Client's data only after prior written information or agreement from the Client, unless a legal obligation to the contrary is imposed on the Provider.
12.6.4 The Provider will handle any assistance request from the Client under this heading free of charge, up to a limit of half a working day per year, any service beyond this duration being invoiced to the Client on a time-spent basis and at the Provider's hourly rate depending on the qualifications of its collaborators involved.
Article 13. Ownership
11.1. Website
The content of the Website is the property of the Provider and its partners and is protected by French and international intellectual property laws.
Any full or partial reproduction of this content is strictly prohibited and may constitute an offense of infringement.
Furthermore, the Provider remains the owner of all intellectual property rights in photographs, presentations, studies, drawings, models, prototypes, etc., produced (even at the Client's request) for the provision of the Services to the Client. The Client therefore prohibits any reproduction or exploitation of said studies, drawings, models and prototypes, etc., without the express, written and prior authorization of the Provider, which may make it subject to financial consideration.
11.2. Solution and Services
The Client is and remains the owner of all the Data it uses via the Services under the Contract.
The Provider is and remains the holder of the property rights relating to all elements of the Services and Solutions made available to the Client, as well as more generally the computer infrastructure (software and hardware) implemented or developed.
The Contract does not grant the Client any ownership right over the Solution.
The temporary provision of the Solutions under the conditions provided for in the Contract may not be analyzed as the assignment of any intellectual property right to the benefit of the Client, within the meaning of the French Intellectual Property Code.
The Client prohibits itself from reproducing any element of the Solution, or any documentation relating to it, by any means, in any form and on any medium whatsoever.
The Client may not assign all or part of the rights and obligations arising from the Contract, whether within the framework of a temporary assignment, a sublicense or any other contract providing for the transfer of said rights and obligations.
Article 14. Warranty Against Eviction
The Provider declares and guarantees:
- that the Solution it has developed is original within the meaning of the French Intellectual Property Code;
- that it holds all the intellectual property rights that enable it to make the Solution available to the Client.
The Provider declares and guarantees that the Solution is not likely to infringe the rights of third parties.
Article 15. Confidentiality of Client Data
In all circumstances, the Client remains the owner of its data.
The Provider undertakes not to modify, use, disclose, assign or transfer to a third party, in whole or in part, for consideration or free of charge, the Client's data that may have been communicated to it by the Client in the course of performing these terms. However, the Provider's commitment not to use the Client's data does not cover the operations necessary for the Provider to prepare its invoices and usage statistics, nor the provision of any explanation concerning the performance of the Services.
The Provider undertakes to delete the Data and the Client Account in the event of no login to said Client Account by the Client for a period of five (5) consecutive years.
In this respect, the Client is informed and accepts that the Provider may, within the framework of its contractual relationships with any subcontractor third party to whom it delegates its obligations, communicate to said third party the names and contact details of the Client solely for the purpose of satisfaction surveys concerning the quality of performance of the Services.
Article 16. Liability – Force Majeure
16.1. Liability
Given the state of the art customary in its profession, the Provider, which undertakes to take all possible care in performing its obligations, is subject to an obligation of means.
The Provider does not guarantee that the Services are free of all defects but undertakes exclusively to remedy malfunctions with all reasonably possible diligence.
The Provider does not guarantee the suitability of the Services for achieving objectives that the Client may have set or for performing particular tasks that it has not previously set out in writing and that have not been subject to express validation by the Provider.
The Provider guarantees that it holds all the intellectual property rights enabling it to enter into this Contract.
For its part, the Client undertakes to immediately report to the Provider any counterfeiting of the Solution of which it becomes aware.
The Services will be used by the Client under its sole control, direction and sole responsibility.
Consequently, the following fall under the Client's responsibility:
- implementation of all useful processes and measures intended to protect its equipment, software packages, programs, passwords, and to guard against any viruses and intrusions;
- compliance with the Prerequisites (present and future) in order to avoid harmful consequences such as slowdowns, blockages, and data alterations;
- choice of the internet access provider or telecommunications medium, the Client being responsible for administrative formalities and for taking out the necessary subscriptions, the cost of which it shall bear;
- errors committed by its personnel in using the Service and the procedures that enable it to connect to the IT Resources and carry out the processing implementing the Solution.
The Provider shall be released from all liability concerning the nature and content of the Client's information or data and the use made of them. Likewise, the Provider shall be released from all liability concerning the quality and transmission of data when it travels over telecommunications networks, and more generally the quality and reliability of telecommunications links between the Client's workstations and the Platform.
Should the Provider's liability be engaged, compensation for all causes combined, principal, interest and costs, shall be limited to the direct damage suffered by the Client and may not exceed the amount invoiced by the Provider to the Client for the last six (6) calendar months.
The Provider has no advisory obligation towards the Client.
16.2. Force Majeure
The Provider's liability may not be sought if the Provider is unable to perform its contractual obligations due to force majeure, namely due to any cause external to the Contract, unforeseeable and irresistible as generally interpreted by French case law. Malfunctions of telecom operators and telecommunications networks are also considered force majeure cases, provided that these malfunctions do not originate from the technical means implemented by the Provider and do not fall under its responsibility.
Article 17. Insurance
The Provider has taken out the insurance necessary to cover the risks associated with the exercise of its activity. It undertakes to provide any supporting document to the Client, if the latter expressly requests it.
Article 18. Termination
18.1. Grounds for Termination
In the event of a breach by one of the Parties of its contractual obligations, the Contract may be terminated automatically by the other Party three (3) months after sending a formal notice by registered letter with acknowledgment of receipt that remains without effect.
The formal notice will state the failure(s) found.
18.2. Consequences of Termination
In the event of termination, the Client will cease to have access to the Solution and the Services.
It will nevertheless retain access to its Client Account.
The Provider will then be entitled to interrupt the Services for the benefit of the Client and its Users without formality.
18.3. Reversibility and Restitution of Client Data
No later than thirty (30) days from the effective date of termination of the Contract, the Provider undertakes to return free of charge to the Client all of the Client's Data processed by the Solution, without keeping any copy whatsoever. The Data will be returned to the Client in a standard market format (.xls, .csv, etc.) that does not require the use of the Solution in order to be reused. No other service will be provided by the Provider under reversibility, the Provider not being required to ensure any continuity of the service provided through the Services.
18.4 Survival
In accordance with article 1230 [new] of the Civil Code, the stipulations which by nature survive the disappearance of the Contract survive the expiry of the contractual term, the termination or the rescission of the Contract, whatever its cause and/or basis (in particular the confidentiality obligation, the obligations arising from the regulations on the protection of personal data [GDPR], the jurisdiction clause, etc.).
Article 19. Miscellaneous Provisions
19.1. Subcontracting
The Client acknowledges that the Provider may, freely and without prior formality, subcontract all or part of its obligations under these terms, under its responsibility.
19.2. Contractual Hierarchy
Unless expressly stipulated otherwise, the terms, conditions and obligations of this document shall prevail over all others.
19.3. Severability
If one or more stipulations of the Contract were deemed invalid or declared as such pursuant to a law or following a final decision of a competent court, the other stipulations shall retain their force and scope.
19.4. Waiver / Tolerance
The fact that the Provider does not invoke one or more of the stipulations contained herein does not in any way constitute a waiver on its part to invoke them in the future and shall not release the Client from any liability arising from its failure to comply with its obligations.
19.5. Client « Data Protection » Obligations
The Client is informed that it is its responsibility to carry out the formalities, declarations and authorization requests provided for by the laws and regulations in force concerning any processing it carries out and data it processes using the Solution; and more particularly those provided for by the C.N.I.L. relating to the processing of personal data.
19.6. Commercial References
The Client authorizes the Provider to cite its name as a commercial reference and to reproduce on the Website any testimonial from it, in particular concerning the quality of the Services.
19.7. Accuracy of Information
The Provider and the Client declare that the information provided and processed by the technical systems of the Provider and its subcontractors or partners shall be deemed authoritative between them.
19.8. Limitation Period
The Client may not bring any action, whatever its nature or basis, more than two years after the occurrence of the event giving rise to it.
19.9. Assignment of the Contract
The Contract may in no circumstances be assigned in whole or in part, for consideration or free of charge, by the Client, without the Provider's written, express and prior authorization. On the other hand, the Provider is authorized to assign the Contract in whole or in part to any third party of its choice.
19.10. Notifications
Any notification sent to the Provider must be addressed by email to: support@vivlab.com and confirmed by postal mail to: VIVLAB, 61 rue de Lyon, 75012 Paris 19.11. Non-solicitation of Personnel Unless the parties expressly agree otherwise, each party waives the right to hire any of the employees of the other party who participated in performing the Contract, even if the initial solicitation is made by the employee concerned. This obligation is valid for the entire duration of the Contract and the twelve (12) months following its expiry or termination, whatever its cause and/or basis. Should either party fail to comply with this obligation, it undertakes to compensate the other party (in particular for recruitment and selection costs, training costs, damages resulting from its personal reputation or commitments already made) by immediately paying a lump-sum indemnity equal to twelve (12) times the last gross monthly salary that the employee concerned received from the defaulting party.
19.12. Social Obligations and Undeclared Work
The Provider undertakes to comply with articles L.8222-1 and D.8222-5 of the Labor Code (mandatory declarations to social protection bodies or the tax administration) and certifies on its honor that its services are performed by employees regularly employed in accordance with articles L.1221-10, L.3243-2 and R.3243-1 of the Labor Code.
Article 20. Applicable Law - Language
These General Terms and Conditions of Sale and the transactions arising from them are governed by and subject to French law.
These General Terms and Conditions of Sale are drafted in French. Should they be translated into one or more foreign languages, only the French text shall prevail in the event of a dispute.
Article 21. Disputes
All disputes to which this Contract may give rise, in particular concerning its formation, validity, interpretation, performance, termination, their consequences and their follow-up, shall be submitted to the courts of ordinary law, with, for Clients having the status of merchants, jurisdiction assigned to the courts of Paris.
APPENDIX 1 - QUALITY CHARTER
The Provider undertakes to comply with the Quality Charter and in particular the following points, which guarantee the quality of its service, namely: AVAILABILITY The Provider undertakes to implement effective controls of a nature to provide reasonable assurance that the Client can access and use the relevant Solutions at the times determined in the Contract.
The Provider has in particular implemented a redundant system allowing uninterrupted service.
SECURITY AND CONFIDENTIALITY The Provider endeavors to secure access to and use of the Solutions, taking into account protocols, in accordance with customary practices in this area.
Where applicable, the Provider has implemented effective controls against unauthorized physical and electronic access to the Provider's operating systems and applications, as well as to the Clients' confidential information, in order to provide reasonable assurance that access to the systems and Client Data is limited to authorized persons and that Clients' confidential information is protected against any use not in accordance with its purpose.
The saved Client/User Data are as follows:
- Client identification data (login and password)
- Client billing information (name, postal address, telephone number, email, VAT number, subscribed offer, payment method).
- Data on the products put up for sale by the Clients
- Data relating to the appearance of the Clients' e-commerce website (banners, colors, logo)
- Clients' contact data (social networks, emails, telephone numbers, showcase website URL)
- Data relating to orders (billing and delivery information, carts, prices, shipping) INTEGRITY The Provider undertakes to implement effective controls of a nature to provide reasonable assurance that the applications made available to Clients process the Data entrusted to them without risk of omission, alteration, distortion or any other form of anomaly likely to harm the integrity of the results from these applications, that the processing complies with the legal regulations applicable to them, and that the Data and processing are accessible for external controls and audits that may be carried out.
The integrity of processing extends to every component of the system and to all phases of processing (data entry, transmission, processing, storage and output of data). These controls consist of consistency checks on processing, the detection and management of anomalies, as well as informing Users of any associated risk of non-compliance.
PERFORMANCE The Provider ensures a response time of one (1) second between its server and any User located in France. The response time means the monthly average of the daily average response times for loading the home page of an application.
APPENDIX 2 – SERVICES BOOKLET
Article 1. Description of Services
The Platform means the online services space between the Provider and its Clients, set up and administered by the Provider.
The Account allows the Client to benefit from the Solution and the Provider's Services.
Article 2. Purpose
This document describes the commitments and technical terms relating to the operation and accessibility of the Client Account and the Platform.
Article 3. Compliance with Prerequisites
The Client undertakes to comply with the Prerequisites for implementing the Client Account and the Provider's Services.
Article 4. Portal Availability
4.1. Availability Rate
The Provider undertakes to provide a Platform availability rate of 98%.
The standard reference period (PRT) is the time slot from 7 AM to 10 PM, Monday to Friday (excluding public holidays), outside annual maintenance periods, version changes and planned interventions.
TI is the downtime related to an interruption: The availability rate (TD) is calculated on a monthly basis: TD = (PRT – sum of TI) / PRT * 100 [%] 4.2. Interruptions The Provider may, without compensation to Clients, carry out service interruptions:
- For scheduled shutdowns for maintenance, version changes, platform upgrades or other major interventions requiring a total or partial shutdown of the Portal and/or online Services;
- To carry out emergency shutdowns (non-exhaustively: loss of data integrity, virus alerts) in cases of absolute necessity.
Article 5. Backup and Restoration Management
The Provider ensures the maintenance of the security of the Platform and the online Services and in particular will carry out daily backups in duplicate on separate media and sites, of all data. The backups will be kept for 5 days.
In the event of an incident on the Platform requiring restoration, the Provider's sole obligation will be to reload the data present in the most appropriate backup.
The Client is informed that differences may exist between the restored data and the data existing at the time of the incident that led to the restoration.
Consequently, it will be the Client's responsibility to verify the existence of any differences and to reconstitute them.
Article 6. Use of the Portal by the Client
It is the Client's responsibility to ensure it complies with the CNIL (www.cnil.fr).
The Provider prohibits itself from making any use of Clients' data except within the framework of its commercial references, or within the framework of satisfaction surveys on the quality of the Service with the Provider's Subcontractors, or with the prior and express agreement of the owner of the Data. This commitment will not, however, cover the elements necessary for the Provider to prepare its invoices based on consumption, nor any explanation concerning the performance of the service.
Article 7. Maintenance Assistance
Maintenance assistance services included in the Subscriptions are identified in accordance with the stipulations of Article 10 of the Contract.