General Conditions
BETWEEN THE UNDERSIGNED
The document is a contract between you and the entity you represent (hereinafter referred to as “the customer” and the company PCI, a company with limited liability, with a capital of 79,800 euros, whose head office is located in France; 24 avenue Joannes Masset Bâtiment 5, LYON (69009), and registred at the registry of commerce and companies in Lyon, under number 394 510861. ( Hereinafter referred to as “PCI”)
Hereinafter referred to individually as “a Party” and collectively as “the Parties“
PRESENTATION
PCI is a company specialized in IT Service Management software (helpdesk), IT Asset Management & Movable Assets software.
The Customer wishes to use PCI’s SAAS Solution, SimplyDesk.
The customer’s objective is to subscribe to a service enabling him to record and process the requests of users, to manage and keep and inventory IT assets or movable assets.
The various functionalities of SimplyDesk are described in the product page of the website at the following addresses :
– Helpdesk: https://www.simplydesk.com/helpdesk/
– IT Asset management: https://www.simplydesk.com/simplyasset-it-asset-management/
– IT Asset inventory: https://www.simplydesk.com/it-asset-inventory/
– IT Asset administration: https://www.simplydesk.com/it-asset-administration/
– Movable Asset management and Inventory: https://www.simplydesk.com/movable-asset-inventory/
The customer has the opportunity to verify online the feasibility of the solution SimplyDesk; and thus, acknowledges having received from PCI all the necessary information allowing him to appreciate the adequacy of the software to his needs and to take all the precautions useful for its use.
HAVING REGARD TO THE AFORESAID
Article 1 - Definition :
The terms and expressions in Capital letters used in this contract are defined as follows, all identical terms and expressions without capital letters must be understood and considered in their usual meaning :
– Subscription: means a paid plan giving access to the Services of the Solution.
– Anomaly : means any behavior of the Solution that does not comply with the documentation of the Solution provided by PCI or that results from a defect that either renders the Solution unusable or causes an incorrect result while the Solution is used in accordance with the documentation and for its purpose.
– Purchase Order : means the document or online form formalizing each order associated with this Contract and mentioning the Customer’s chosen Subscription offer.
– Contract : means these general conditions of sale and its annexes.
– Data : means any information provided by the Customer for integration into the Solution; all the identification data of the Solution Users; all data attached to each User collected by the Solution or keyed in by the Customer into the Solution.
– Exploitation Rights : means the intellectual property rights relating to the Solution granted by PCI to the Customer, as defined in Article 5 of this Agreement.
– Host : Refers to the company to which PCI outsources the hosting of the customer Solution and databases. PCI is free to use any other provider of its choice at any time without prior notice and without liability to the Customer: without this being considered as a modification of the conditions of execution of the Contract.
– Identifiers : means both the user’s unique identifier (“login”) and the user’s password (“password”), communicated after the customer’s registration via the software.
– Internet : refers to the set of interconnected networks, which are located in all regions of the world.
– Intranet : refers to the computer network specific to a company or organization, using TCP / IP protocols and, more generally, Internet technologies that can be connected to the Internet.
– Services : means the application services of the Solution is offered as SaaS to the customer by PCI.
– Solution : means the software SIMPLYDESK, is made available to the Customer as part of its Service Offer.
– User : means any person employed by the Customer who has the right to use the Solution under the terms and conditions stipulated in the Contract.
– Third Party User : means one or more employees working in a third-party company that is in a business relationship with the Customer or has an economic link with the Customer, authorized to use the Solution.
Article 2 - Object :
The purpose of this Agreement is to define the conditions of access and use by the Customer of the Solution.
PCI consents to the customer, who accepts :
– exploitation rights to the Solution, under the terms, limits and conditions defined in this agreement, for the purposes of its commercial exploitation by the Customer.
– a set of services, including Data Hosting, Solution Maintenance, Technical Support.
Article 3 - Effects and duration :
This Agreement is concluded for an indefinite period and takes effect from the subscription by the Customer.
The minimum subscription period is one (1) month.
Subscription may be over a one (1) year period in order to benefit from the preferential rate (refer to the rates published on the PCI website available at the following URL: https://www.simplydesk.com/pricing/).
In all cases, Subscription to PCI’s software is renewable by tacit agreement for a period identical to the initial period, unless denounced by one of the parties by registered mail with delivery confirmation, at least
– one (1) month before the renewal date for monthly subscriptions;
– three (3) months before the renewal date for annual subscriptions.
Article 4 - Description of the solution :
The solution
PCI consents to the Customer, who accepts, a right of access to the Solution via the Internet and to use its Services remotely from the servers hosted by the company PCI or its Host.
PCI provides the Customer with the Solution via Internet connection according to standard quality and safety standards.
Under the terms of the “Property” section, PCI grants the Customer the right to use the Solution non-exclusively.
PCI shall ensure data hosting, maintenance and security of the Solution.
PCI will also ensure data backups under the conditions defined in the Service Level Agreement available in Annex B. [length of data retention period: 1month].
Any technical support provided by PCI due to non-compliance or unauthorized use of the Solution by the Customer, leading to a malfunction of any of the elements of its configuration are billed to the Customer.
Update of the solution
PCI is free to modify the functionalities and Services of the Solution without prior notice to the customer so far as this does not exhibit a distinct change in performance of the Services or loss of Data or functionality (non-regression). Thus, an update is decided and executed by PCI, not by customers.
Access to the solution
To access the Solution, the customer must have an internet connection and use a browser as stipulated by the technical prerequisites available in Appendix A.
The Customer is responsible and the cost at his own expense, for the acquisition, installation, maintenance and configuration of the solution. He is equally responsible and the cost at his own expense for the means of telecommunications required to access the Solution.
The Customer will use this right of access alone. He will be able to connect at any time with the exception of the following maintenance periods :
– 24-hour services,
– 24 hours, 7 days weekly services
– including Sundays and holidays,
Access to the solution is possible:
– from the customer’s computer.
– from any computer, table or telephone used by a mobile customer
– using the Identifiers provided to the Customer.
The Customer’s user permissions to access Services and data is by means of the Identifier chosen by the User.
Two or more Users cannot use the same Identifier to connect to the solution simultaneously.
The Customer will use Identifiers received when connecting to the Services.
Identifiers are needed to access the Solution by Users, to protect the integrity and the availability of the Solution, as well as the integrity, the availability and the confidentiality of Customers Data.
PCI does not have access to passwords used to protect the customer’s ID. IDs are strictly personal and confidential. The Customer agrees to keep them confidential and not to disclose them in any form whatsoever. Customers take full responsibility, should they decide to disclose this information to third parties.
All use of Identifiers is the sole responsibility of the Customer.
In the event of the loss or theft of one of its Identifiers, the Customer agrees to immediately notify PCI.
Article 5 - Using of the solution :
Standard access rights to the solution
By default, PCI only grants the Customer a personal, non-exclusive, non-transferable right to use the Solution for the duration of the Agreement and from any part of the world.
Customers may use Services provided by the Solution only in accordance with their needs and documentation. The Customer should note that, user licenses are issued for the sole purpose of enabling the Customer to use the Services provided by the Solution, solely for Users, and for no other purposes.
The right to use, implies the right to represent and implement Service Applications in accordance with their intended purpose, when using the SaaS model via an electronic communications network connection.
Unless otherwise agreed, as stipulated under the Article on “Extended access rights to the Solution”, the Customer can not under any circumstances make the Solution available to a third party, and strictly forbids any other use, particularly any adjustment, modification, translation, agreements, dissemination, compilation, without this list being exhaustive.
Extended access rights to the solution
Both Parties may indicate on the purchase order that the access rights to the Solution (as indicated in 8.2 “Standard Access Rights to the Solution“) may be extended to Third Party Users.
Article 6 - Quality of services :
The Customer is aware of and acknowledges the technical risks inherent to the access and use of the Internet and its consequences. PCI will therefore not be held responsible for any unavailability or slowdown of Services.
PCI performs its services in accordance with the conditions stipulated in the Service Level Agreement defined in Appendix B.
PCI has set up a monitoring system; thus, any anomaly detected generates an alert that allows PCI to intervene within the timeframes indicated in the Service Level Agreement.
Article 7 - Customer's obligations :
The Customer agrees to cooperate closely and in good faith with PCI in order to facilitate the performance of its services for which PCI is responsible and vice versa.
Consequently, the Customer agrees:
– To communicate all data and useful information to PCI, so that PCI can deliver its services under reasonable conditions and in a normal environment.
– To provide, and if necessary, obtain at the customer’s own expense, the technical documentation of its hardware and software.
In addition, the Customer in return agrees to pay for the Subscription to the Solution and its related Services. The price paid must be in accordance with the financial conditions defined in Article 13.
The Customer also agrees to respect the volumetric thresholds indicated in the Purchase Order and to notify PCI in the event of an increase in volume (needs).
Article 8 - Property :
Property of the solution
PCI is and remains the owner of all intellectual property rights of the Solution, this Agreement notwithstanding, in addition to the rights granted in article 5, there is no transfer of intellectual property rights to the benefit of the Customer.
Data ownership
The Customer is and remains the owner of all Data used (by the customer) via the Services provided by the Solution within the limits of the Contract.
As such, PCI disclaims liability in the event of any related acts of infringement that may be found in the data content of the Customer.
The Customer agrees to immediately inform PCI in the case of any related acts of infringement as mentioned above. In addition, PCI may be required to suspend access to the Services provided by the Solution in the event of any of the cases described above without this being a breach of its obligations under this Contract.
The Customer undertakes to indemnify, defend and protect PCI and its subcontractors, at the Customer’s own expense, from and against any claims, losses, damages (legal fees of a reasonable amount and costs included) allegations or consecutive responsibilities:
– Any infringement of the rights of an individual or a third party’s property as a result of the Stored Data in question;
– Any violation of French or international laws by the Stored Data in question;
– Any information classified as illegal, immoral, counterfeit or defamatory, or even alleged to be unlawful, immoral, infringing or defamatory of the Stored Data in question.
PCI cannot in any case be held responsible for any prejudice that results from the content of the Customer’s Data.
Article 9 - Maintenance :
Corrective and Improvement maintenance of the Solution will be at the cost of PCI. PCI undertakes to limit, as much as possible, the time and the number of interruptions of Services provided by the Solution, as a result of maintenance works.
Corrective maintenance
The purpose of a corrective maintenance is to correct any defect relating to the Solution, including any Anomaly or bug that may have an impact on Services provided by the Solution. Corrective maintenance is provided by PCI under the conditions defined in the Service Level Agreement in Annex B.
Improvement maintenance
Improvement maintenance aims at updating the Solution and its technical documentation and / or providing the Customer with the new improved edition in relation to its existing functionalities, with the exception of any other service that necessitates a specific development.
Any maintenance work relating to this service may render the Solution temporarily unavailable. These maintenance works are carried out at regular intervals after a notice period of 5 days via mail. PCI will strive to perform maintenance tasks outside working days and hours.
Article 10 - Technical assistance :
Our Technical Support Service is a Service only offer, which consists of assisting Users via e-mails at support@simplydesk.com or by creating a customer request tickets via our self-service portal: https://support.simplydesk.com/.
Any telephone assistance is billable; see tariff.
Technical assistance is provided by PCI under the conditions defined in the Service Level Agreement in Annex B.
Customers must take notice that this is purely a technical assistance and not a form of training on the implementation and the use of the Solution.
Article 11 - Training
PCI recommends training services for the implementation and the use of its Solution. An estimate could be provided to the Customer upon request.
PCI could also provide a proposal for training if a recurring problem encountered by the Customer is detected during technical assistance and/or corrective maintenance of the Solution.
Article 12 - Data processing
Personal data
If Data transmitted to PCI as a result of the use of its Services provided by the Solution contains personal details, the Customer must ensure that he has carried out all incumbent obligations under the January 6, 1978 law on “Information Technology & Freedoms “. The Customer must also ensure that he informs the people concerned of the use made of such personal data. On this basis, the Customer must guarantee PCI that no legal action in the form of appeal, complaint or claim will be taken by anyone whose personal data is reproduced and hosted via PCI’s Services.
Data analysis
The Customer takes editorial responsibility for the use of Services. The Customer is solely responsible for the quality, the legitimacy and the relevance of the Data and Content it transmits to PCI for the use of its Services. The Customer further guarantees to be the owner of the intellectual property right that permits him to use the Data and its contents.
Consequently, PCI disclaims all liability in the event of non-compliance of Data and its contents with the laws and regulations, with the public order or with the needs of the Customer.
The Customer guarantees PCI on first demand against any damage that would result from it being challenged by a third party for the violation of this warranty.
In general, the Customer is solely responsible for the content and messages disseminated and / or downloaded via the Solution. The Customer remains the sole owner of the Data content of the Solution.
Data security
Each Party undertakes to implement the appropriate technical means required to ensure the security of Data.
Subject to the article on “Accountability”, PCI agrees to maintain the integrity and confidentiality of the Data content of the Solution. PCI will implement technical and organizational measures to prevent any fraudulent access or use of Data and to prevent any loss, alteration or destruction of Data.
In view of the above, the Solution is secured by :
– A Secure HTTPS access (optional);
– Two firewalls with very high security regulations;
– A cloud infrastructure with a Tier III data center and compliant with ITIL standards;
– A 24/7 monitoring and failure detection measure;
– A daily backup measure
Inactive account management policy
PCI reserves the right to close any free, inactive account for a consecutive period of 30 days. In this case, all Data associated with this account will be destroyed. PCI will inform the customers concerned before any account closure.
Regarding accounts involving more than one User, if at least one of the Users is active, the account will be considered active.
Article 13 - Financial conditions :
License fees and allocated disk space
Rates are available at the following URL : https://www.simplydesk.com/simplydesk-pricing/
The maximum disk space provided for storing Data at no extra cost is 1 Giga Byte. If the amount of storage disk space used exceeds the limit indicated, the Customer will be charged an additional storage fee of 5 Euros / GB before tax.
The fees of our Services are indicated in euros and are exclusive of tax and excluding extra costs.
The billing address is the address of the Customer’s registered office.
The following services are excluded from the licensing fees, but can be obtained at an extra cost:
– training services,
– technical assistance services,
– and generally, all other services not included in the SaaS offer.
Rate review
PCI has the right to modify its rates. Customers will be informed three months in advance by e-mail of changes in price. The new price rates will take effect immediately they are applied to new Customers.
New Price Rates will be applied to already existing Customers when they renew subscription to the services provided by the Solution, this takes effect from their next renewal date.
Review: Subscription rates will be revised every year on respective due dates. Annual revision of prices will be made on the basis of the SYNTEC index. The date of the Customers’ contract will be the basic index used.
The revised rate will be the rate that took effect three months before the Customer’s Contract anniversary date.
Terms of payment
Notwithstanding the duration of the commitment, Services are invoiced monthly or annually depending on the choice of Subscription made by the Customer.
Invoices are payable by Customers within 30 days from the date of invoice via SEPA direct debit payments/automation.
All PCI invoices are sent by email. No invoice from PCI is sent by mail.
Default of payment
Without prejudice to any damage, the failure of the Customer to pay an invoice or bill when due will automatically incur:
– The payment of a flat-rate of 40 Euros as recovery fees for not respecting the 30-day timeframe
– The payment of a 12% late payment interest rate per year, without prior notice and from the first day of delay in payment.
– Additional banking and management fees for recovery monitoring procedures, dunning letter costs, telephone follow up costs, resubmission of refused direct debits;
– An immediate suspension of Services
– An automatic dissolution of the Agreement within 30 days after PCI has sent notifications by email concerning default of payment without any positive result.
Article 14 - Guarantees :
PCI testifies and guarantees:
– that the Solution is considered to be the original works of authorship as defined in the French Intellectual Property Code.
– that PCI is the holder of all intellectual property rights, necessary to sign the Contract.
PCI acknowledges and warrants that the Solution is not likely to infringe on the rights of third parties.
PCI grants no other warranties, stated or implied, with respect to the Solution and the Services therein, including but not limited to the implied warranties of merchantability and fitness for a particular purpose. PCI does not guarantee the results of the Services and is only bound by an obligation of means. It does not guarantee that the use of Services provided by the Solution meets the requirements of the Customer and its Users.
Article 15 - Liability / Force majeure :
Responsability
The Customer acknowledges to have read all obligations required and more broadly, all the conditions relating to the use of the Solution proposed by PCI.
The Customer expressly undertakes that the use of Services provided by PCI is under his full responsibility.
Under no circumstances will PCI be held liable, directly or indirectly, for any prejudice caused to the Customer or to a third party due to the use of the Solution, regardless of the cause.
In the same way, PCI cannot be held responsible for any direct or indirect damage caused to the Customer or to a third party due to the unavailability or dysfunction of the Solution, regardless of the cause and the duration.
The use of any content downloaded or obtained through the use of the Solution is at the sole responsibility of the Customer. The Customer will therefore be solely and fully responsible for any damage to his computer, mobile phone, wireless equipment or data resulting from the use of the Software or Data download.
PCI will therefore not pay any compensation for direct or indirect losses, tangible or intangible damages caused by the use of its Solution. It is the customer’s sole responsibility to arrange for a comprehensive insurance covering this type of risk or act as his own insurer.
Customers and Users of the Solution agree to have no recourse against PCI, its subcontractors and its partners.
However, should PCI accept responsibility, the total amount of compensation that PCI will be required to pay to the Customer shall not exceed the actual amount perceived by PCI under this Contract. This amount should not be lower than 500 Euros and should also not exceed the amount (benefits) excluding taxes, perceived by PCI over a period of 12 months, regardless of the legal basis of the claim and the procedure used to achieve it.
This clause is an essential and vital condition of this contract, without which PCI would not have contracted.
Moreover, PCI will not be responsible for any direct or indirect damage, resulting from the use of data accessible via the Internet.
The Customer acknowledges that no stipulation herein will release him from the obligation to pay.
the amount due to PCI under this Contract.
Force majeure
In case of an event beyond the control of the Parties (signatory to the Contract), making the execution of the Contract dangerous or imbalanced; the Contract will be suspended or even terminated at the initiative of one of the Parties, when a registered letter with acknowledgment of receipt is sent to the other Party, if no possible outcome is reached within a reasonable time.
This shall particularly apply in the case of an interruption in the supply of electricity or telecommunications, fires, strikes, lockouts, floods, machine breakdown at PCI, war, riots, requisitions, disruptions in transportation systems ,the inability of suppliers to meet demands under normal conditions and/or any other event beyond the control of both parties, which hinders the normal execution of the contract.
Limitations of liability / Specific Cases
PCI is not responsible for any incident, independent of the Solution and which is identified as the sole responsibility of its ICT Hosting Services Provider or its Internet Provider.
PCI is also not responsible for problems resulting from a security lapse (hardware or software) in the Customer’s telecommunication devices (computer, mobile phone,).
In general, PCI assumes no responsibility for items beyond its control and or any potential damage to the customer’s technical environment and in particular, the customer’s computers, software, network equipment (modems, telephones …) and all hardware used to access or use the Solution Services.
PCI, although bound by IT security obligations, shall not guarantee the absence of any modification, intrusion, alteration, unavailability of the Solution operated by a third party (person, virus …).
Article 16 - Insurrance :
PCI has arranged for the necessary insurance to cover risks related to the exercise of its activity. It undertakes to give any proof to the Customer, if he expressly requests for it.
Article 17 - Termination of the contract :
In case of breach by one of the parties to its contractual obligations, the Contract may be terminated automatically by the other Party, 30 days after a formal notice, sent by registered letter with acknowledgement of receipt, has gone unheeded. The formal notice will indicate the identified inadequacies.
Assuming the Contract is terminated, the Customer will cease to use all Identifiers. Reversibility benefits will be applied as stipulated in the following article.
Article 18 - Reversibility :
In the case where the contractual relationship is terminated, regardless of the cause, and provided that the Customer is up to date in the payment of invoices, PCI will provide the customer with a backup of the database consisting of the customer’s entire Data content found in the Solution. This will be made available to the Customer online.
The Customer has a period of one month after the date of Subscription ends, to retrieve his Data. Beyond this period, the Customer is expressly informed that the Data will be deleted without PCI’s liability being incurred.
At the Customer’s request, PCI will provide a personalized extraction of the database. In this case an estimate for services will be provided to the Customer.
Article 19 - Non-solicitation of employees :
Both Parties waive the right to hire or cause to be hired, directly or through an intermediary, any employee of the other Party without the prior express consent of the latter. This disclaimer is valid for the duration of the Contract and it is equally binding 12 months after the Contract has been terminated.
In the event that one of the Parties does not comply with this obligation, the defaulting party undertakes to compensate the other Party by immediately paying and upon request, a lump sum equal to [6] times the gross monthly salary of the employee at the moment of his departure.
Article 20 - Confidentiality :
Each Party undertakes to (i) keep confidential any information it receives from the other Party, including (ii) the non-disclosure of confidential information (of the both Parties) to any third party, other than employees or agents that need to know them; and (iii) to use the Confidential Information of the other Party for the only purpose of exercising its rights and obligations under the Agreement over a period of one year after the termination of the Contract.
The Parties further undertake to enforce these provisions by their staff and by any agent or third party who may intervene in any capacity whatsoever within the framework of the Contract.
Article 21 - Miscelianeous :
The severability clause
The nullity, the lapses, the absence of binding force or the unenforceability of any of the stipulations of the Contract does not rule out the nullity, the lapses, the absence of binding force or the unenforceability of the other stipulations, which remain in full force and effect. However, the Parties may, by mutual agreement, agree to replace the invalidated stipulation (s).
Invalidity of the clause
The invalidity of one or more clauses in this agreement will not invalidate the entire agreement.
Article 22 - Applicable law and jurisdiction :
Applicable law
The Contract is subject to French law and excludes any other legislation.
Address for service
For the execution of this Agreement and the acts subsequent hereto or a consequence hereof, the parties shall choose their respective headquarters as their address for service. Any change in address of the registered office of one of the Parties shall be opposed by the other Party eight calendar days after it has been duly notified.
Disputes – clause conferring territorial jurisdisction
In order to jointly find a solution to any dispute arising in the performance of the Contract, the Parties agree to meet within [15] days after a registered letter with acknowledgment of receipt has been received; notice sent by one of the two Parties.
In the event of persistent disagreements on the interpretation or the execution of this Contract, exclusive jurisdiction is assigned to the Courts of LYON, notwithstanding a plurality of respondents or a guaranteed appeal, even for urgent proceedings or protective urgent or on-demand proceedings.
Annex A - Technical prerequisites
Web browser :
– Internet Explorer 10 minimum.
– Mozilla Firefox (latest stable version).
– Google Chrome (latest stable version).
– Safari (Latest stable version)
– HTML5 and javascript supported by your browser.
Mobile and tablet :
– Android (Google) and iOS (Apple)
Screen resolution :
The minimum resolution required is 1024 x 768
– when the browser is maximized
– horizontal mode for smartphones and tablets.
Annex B - Level of service Agreement
Article 1 - Exclusion clause :
This Service Level Agreement does not apply to problems related to the functioning and the availability of the Solution :
– which are due to factors beyond PCI’s control
– that arise from the Customer’s or the third party’s hardware or software
– that arise from the Customer’s or the third party’s actions or inactions
– which arise from the Customer’s use of the Service after PCI’s recommendation to modify the use of its Service has gone unheeded.
– that occur during the Solution’s scheduled downtime.
The purpose of this Service Level Agreement is to specify the service levels and performance of the Solution.
Article 2 - Commitment of resources :
| Commitment resources | Levels of service | |
|---|---|---|
| All support services | Support services are available Monday to Thursday, from 9am to 1pm and from 2pm to 6pm CET. Services are not available on Public Holidays. Requests made by mail or via the telephone outside of these hours will only taken into account at 09:30 CET the next working day. |
|
| Availability and monitoring of Services | 24 hours per day, 7 days a week. | |
| Annual availability of Services | 99% per year (up to a maximum of 92 hours yearly) | |
| Data Back-up | Data is backed up every 24 hours Back -up copies kept for 2 weeks.>Back-ups are performed on a storage unit separate from the operating servers. The Recovery time is 4 hours (on working days). |
|