Terms of Sales
The APP'Live company designs and produces a range of software packages intended for tourism professionals. It offers its customers services (hereinafter referred to as “services”), such as:
- the supply of software packages and third-party software by means of user licenses;
- the sale of equipment;
- the performance of services associated or not associated with software packages;
- website creation services;
- website hosting services;
- services in ASP mode (Application
Intellectual Property, such as functional and organic analysis files, programming and test files;
The purpose of these general conditions, throughout their period of validity, is to define the contractual framework governing all the services ordered by the customer from APP'Live.
- “Purchase order”: designates the document signed by the parties with a view to the performance by APP'Live of the services referred to in the purchase order and establishing their final conditions of performance in terms of deadlines and costs;
- "Referring executive": refers to the person previously trained in the use of the software package, specially authorized by the Customer on the basis of his skills, experience and availability, to ensure the monitoring of APP'Live services in quality privileged interlocutor. The Customer must communicate the name of this or these referring executives within eight days of the start date of the services. If the referent framework were to change, the Customer will notify APP'Live within eight days of this change;
- “Client”: designates the co-contractor of APP'Live, represented by a duly authorized person;
- “Special Conditions”: designates the contractual document subject to these general conditions in which are described the services subscribed to by the customer, their methods of execution, and those of their financial conditions. Specific conditions are associated with each service and are subject to these general conditions;
- “Contract”: designates all the contractual documents referred to in the article “contractual documents”;
- “Documentation”: designates the user documentation as well as, where applicable, the online documentation and, in general, all technical information relating to the Software Package, excluding that which constitutes the preparatory design material within the meaning of Article L.112-2 of the Intellectual Property Code, such as functional and organic analysis files, programming and test files;
- “License to use the software packages”: designates the right to use a copy of the software packages in accordance with the terms of these general conditions and the specific conditions of software license;
- “Third-party software”: refers to software published by a third-party publisher whose license is granted in accordance with the publisher's license agreement.
- “Equipment maintenance”: designates all the actions which make it possible to maintain equipment in good working order, excluding software packages”.
- “Equipment”: designates all the machines, elements and accessories defined in the special conditions of sale of equipment, necessary or not, for the use of the software packages and possibly supplied according to the special conditions of sale of equipment”.
- “Software”: designates the software package covered by these presents as well as its additional modules referred to in the Order Form and described in the appendix to the specific license conditions of the software package;
- “Commercial proposal”: refers to the document produced by APP'Live describing all the services offered by APP'Live to the Customer and which, in the event of signature of the order form, is an integral part of the contractual documents;
- "Services": refers to all the services likely to be offered by APP'Live (supply of software packages, third-party software and hardware, and performance of the associated services) according to the terms defined in these general conditions, as well as only to the particular conditions specific to each service.
- "Support": refers to all actions, with the exception of installation and administration, aimed at providing telephone assistance for troubleshooting, assisting the customer trained in the use of the licenses granted and maintained by APP 'Live, make available new versions or sub-versions';
4. Contract documents
The contractual documents are as follows, in descending order of priority:
- these general conditions and their annexes
- the special conditions and their annexes
- purchase order
- the commercial proposal
The "Quality Charters" do not enter into the contractual field; they are communicated to the Customer for information purposes only.
For the interpretation of these general conditions, rank criteria will be applied according to the following principles:
- obligation by obligation
- or failing that paragraph by paragraph
- or failing this, article by article.
APP'Live reserves the right to update the provisions of the “Quality Charters” and in particular the procedures described therein at any time.
5. Validity of commercial proposals
Unless otherwise specified in APP'Live's commercial proposal, it is valid for one month from the date of its communication to the Customer, provided that the Customer returns the signed quote within one month, after having read the content of the contractual documents. After this period, APP'Live reserves the right to modify all or part of the content of the contractual documents.
All orders are final upon signature by the Customer and APP'Live of the estimate, which implies acceptance of the commercial proposal and all the contractual documents referred to in the order form.
Delivery is made to the place indicated on the order form and within the period specified in the estimate. This deadline is always indicative. In addition, any non-compliance with the deadlines payable by the customer is likely to result in a delay in delivery by APP'Live, at least equivalent to that caused by the Customer. The latter cannot claim damages or the cancellation of his order due to the delay or postponement of the delivery date.
Unless otherwise stated in the special conditions, the customer has a period of 30 (thirty) days from the delivery of the services, objects of the present, to ensure their conformity with the estimate, and to assert to APP' Live, by registered letter with acknowledgment of receipt, any non-compliance. Failing this, and unless otherwise provided for in the special conditions, receipt is deemed to have been tacitly acquired and without reservations, even in the event that the services are rendered totally or partially unavailable or unusable by a third party.
The parties agree that the use by the Customer of the services, subject of the present, entails receipt without reservation of the elements concerned.
These general conditions come into force from the date of signature by the parties, of the first purchase order, until the most recent of the following dates:
either the date of entry into force of a new estimate carrying new general conditions;
either at the end of the execution of the special conditions subject to these general conditions, unless APP'Live brings into play the "termination" clause
9. Intellectual Property
APP'Live is the owner of the intellectual property rights on the software packages and holds the rights necessary for their distribution, as well as on their associated documentation. The user license granted by APP'Live to the customer and whose conditions are defined in the special conditions of the Software License, does not entail any transfer of intellectual property for the benefit of the customer. Consequently, the customer is prohibited from any action or act that may directly or indirectly infringe APP'Live's copyright on the software package, as defined in the special conditions of the Software License, or in any any of the other prerogatives of intellectual property likely to be associated with the software package, such as those relating to industrial property.
9.2 Third Party Software
APP'Live uses, for the production of its software packages, so-called “open-source” components. APP'Live declares that it holds the rights to use third-party software and holds the rights necessary for their distribution, within the limits of the rights granted to it under their license of use, of which the Customer declares to have read and have accepted the terms. The Customer is prohibited from any use not expressly authorized by these licenses, which constitutes an offense of counterfeiting. The list of third-party software and the reference of the corresponding user licenses are available for use by the software packages.
9.3 Studies and documents
APP'Live retains full ownership of the studies and documents produced during the performance of the contract.
10. Ownership of materials
The Materials will remain the property of APP'Live regardless of the method of financing, until full payment of the price, principal and interest, to APP'Live as defined in the special conditions of sale of the materials. This retention of title clause does not prevent the transfer of risks to the Customer upon signature of the estimate by the Customer.
The following are considered confidential for each of the parties and their staff members:
- information, documents of any kind and know-how, regardless of the medium and form used for their transmission
- transmitted by the other party
- having a direct or indirect relationship with the subject of this contract, the nature and extent of the services concerned.
Each of the parties undertakes that the information it receives for the execution of the contract from the other party:
- are protected and kept strictly confidential and are treated with the same degree of precaution and protection that it accords to its own confidential information of the same importance
- are transmitted internally only to the members of its staff who necessarily have to know it for the execution of this contract, and to ensure that this information can only be used by these people in this sole context
- are neither disclosed, nor likely to be, directly or indirectly, for any reason whatsoever in any form whatsoever
- are not used in whole or in part for any reason whatsoever for purposes other than the performance of this contract.
Each of the parties guarantees compliance with the obligations stipulated above by the members of its staff to whom it has disclosed the said information.
In the event that, by way of derogation from the foregoing, one of the parties would have been authorized by the other party to communicate confidential information to a third party, this party is also responsible for compliance by this third party with the confidentiality obligations referred to to this contract. Consequently, the said party would be responsible for any failure committed by the persons for whom it is responsible.
This article does not apply to information elements:
- which were in the public domain at the time of their disclosure or have fallen into the public domain without there being any breach of this contract
- of which the party concerned could prove that they were in his possession prior to the effective date of this contract;
- which result from internal developments carried out by the party concerned without the use of confidential information within the meaning of this article
- which are communicated to one of the parties or to its collaborators or employees by third parties hereto without there being any contravention of this article
- which are disclosed with the prior written consent of the other party.
The provisions of this article remain in force for a period of two (2) years from the expiry of the contract, for any reason whatsoever.
12. Financial conditions
The customer pays, in return for the supplies and services delivered by APP'Live, the price, the amount of which is indicated in the estimate, and failing that, in the special conditions specific to each service.
The prices are exclusive of taxes, the duties and applicable taxes will be invoiced in addition and will be those in force on the day of invoicing.
The implementation of the services at the expense of APP'Live is subject to the payment of the amount of the sums due by the customer when ordering, as indicated in the order form.
For hardware maintenance and software package support services, the price will be invoiced in full upon signature of the estimate, then, on its anniversary date, term to expire.
For subscriptions, the price will be invoiced for one year upon delivery of the products concerned with monthly direct debit if the customer has chosen this type of payment, otherwise the payment schedule will be defined in the quote.
Invoices are payable ten (10) days from their receipt and, in the event of recourse by means of a bill of exchange statement (LCR), at the end of its due date.
12.2 Terms of payment
In the absence of recourse to direct debit, the preferred method of payment between the parties is the direct bill of exchange statement (LCR). With this in mind, the Customer undertakes, on first request, to sign and produce any document necessary to promote the implementation of these payment methods in favor of APP'Live. Any costs incurred by the return of an item or an unpaid direct debit as well as all recovery costs of any nature whatsoever, incurred by APP'Live to obtain payment of the debt, will be borne by the Customer. .
12.3 Price revision
In the event that the contract provides that the price is subject to indexation, this takes place on the date of renewal of the contract, according to the variation of the Syntec index of IT services (latest known index).
The price is then calculated by applying the following formula: P = Po Syntec __ Syntec Co
- P = new price / Po = price agreed at the signing of the contract
- Syntec = value of the last known Syntec index on the date of the revision
- Syntec Co = value of the index known at the signing of the contract.
In the event of disappearance of the revision index and in the absence of agreement on a new index, express competence is attributed to the President of the Commercial Court of Bourges to define an index which will be integrated into the revision formula.
This index must be chosen in such a way that it is as close as possible to the missing index and that it respects the spirit that the parties intended to define when establishing this review clause.
13. Late penalties
Failure to pay the sums due on the due date will result, notwithstanding the application of the "Termination" clause, automatically and by the sole fact of the arrival of the term:
- the immediate payment of all sums remaining due, regardless of the method of payment provided
- the invoicing of late payment interest corresponding to the sums owed by the Customer increased by an annual rate of 25%. In accordance with Article L. 441-6 of the Commercial Code, late penalties are due in the absence of payment on the day following the date of payment which appears on the invoice. The rate of these penalties is 25%. In addition, a fixed penalty of 40 Euros will now be due to the creditor for any payment made within 45 days of the invoice date.
- the penalties being payable the day following the date of payment appearing on the invoice.
In the event of recourse to a financing organization or request for invoicing of a third party designated by the Customer, the Customer is jointly and severally liable for any sum unpaid by the latter.
The recovery costs are the responsibility of the Customer: they will amount to the sum of €100 excluding VAT in the event of a formal notice being sent by APP'Live's lawyer, €500 excluding VAT in the event of summons and €800 excluding tax if the case results in a decision ordering the Customer to pay the unpaid invoices. The bailiff's fees must be fully reimbursed by the Client to APP'Live.
APP'Live reserves the right to suspend the execution of all the services referred to in the order form, in the event of late payment by the Customer after formal notice by registered letter with acknowledgment of receipt, which has remained unsuccessful for more than ten (10) days. , and this until the payment of the outstanding invoice, without this suspension being considered as a termination, and without prejudice to the right for APP'Live to pursue the recovery of the sums due and the damages possibly due.
For maintenance and support fees, any year started is due in full.
In general, the execution of any order by APP'Live is subject to the absence of uncollected debt of APP'Live against the Customer, of any nature whatsoever.
15.1 Termination for Default
In the event of a serious breach by either party of one of its essential contractual obligations, not remedied within thirty (30) days of the Registered Letter with Acknowledgment of Receipt notifying the breach in cause, the other party may, as of right:
- either terminate the special conditions concerned by the breach in question; in this case, the termination of the said special conditions will not have the effect of leading to the termination of the general conditions and the other special conditions of the subscribed services, which will remain in force.
- either terminate the specific Software license conditions; in this case, all the general and specific conditions will be automatically terminated.
15.2 Other cases of termination
Depending on the case, and subject to compliance with a notice period of 15 (fifteen) days, APP'Live reserves the right to unilaterally terminate these special conditions, in the following cases:
- opening of a procedure for receivership or liquidation of the Client, unless otherwise decided by the judicial administrator
- changes not communicated by the Customer to APP'Live impacting the software and hardware environment existing on the day of the order.
15.3 Consequences of termination
The termination of one of the special conditions does not entail the termination of the other contractual documents referred to in the order form, with the exception of the special conditions of software license, the termination of which entails the termination of the special conditions of software package support.
The termination is understood to be subject to any damages that the injured party may claim.
In the event of termination of the contractual relationship for any reason whatsoever, the Customer must immediately return the software package, all costs relating to the transport of the software package back being the sole responsibility of the customer.
16. General Cooperation
The parties agree to work closely together in the context of their relationship. The parties agree that this collaboration is essential for the proper execution of these presents.
The Customer undertakes to collaborate actively with APP'Live in the context of the performance of the services and undertakes in particular to:
- communicate spontaneously and at the first request of APP'Live, the information and documents necessary for the performance of the services by APP'Live, and in particular the technical documents
- designate a referent manager and this, with sufficient notice in view of the contracted services.
17. No Poaching
The Customer agrees not to poach or hire APP'Live staff for the duration of the contractual relationship, and for a period of twelve months from the termination of the contractual relationship.
In the event of non-compliance by the Customer with his obligations, he undertakes to pay APP'Live a penalty equal to twelve months of the last gross monthly salary of the person(s) in question.
The parties expressly agree that APP'Live is bound, for the performance of all the services referred to in these general conditions, by an obligation of means.
APP'Live cannot be held liable if:
- the customer has not himself complied with all of his obligations, as provided for herein and in the special conditions
- in the event of error or negligence on the part of the customer, one of its employees, or a third party mandated by the customer
- in the event of non-compliance with the recommendations of APP'Live by the client, its employees and the said third party.
The parties agree that APP'Live may only be held liable for the consequences of direct damages, excluding indirect damages such as loss of profits, turnover, margins, income, loss of orders, customers, operations, commercial actions, damage to brand image, without this list being exhaustive. It is the customer's responsibility to protect himself against the risk of damage to files, computer memory or to any document, material or program that he could have entrusted to APP'Live within the framework of the services to be performed by constituting a duplicate of the all documents, files and media.
The parties expressly agree that if APP'Live is held liable under the conditions of this article, it is limited to the sums actually paid by the customer for the breach at the origin of the alleged damage.
The provisions of this contract allocate the risk between the parties. The agreed prices reflect this allocation of risk and the resulting limitation of liability.
The above limitation does not apply in the event of personal injury or death.
19. Personal data
Each of the parties is responsible for the formalities incumbent on it under the regulations relating to the protection of personal data, in particular law n ° 78-17 of January 6, 1978 relating to data processing, files and freedoms. (hereinafter the Data Protection Act), and in particular with regard to cross-border flows outside the European Union.
20. Contractual limitation
With the exception of any action that may be brought by APP'Live against the Customer in the event of non-payment of the sums due for the performance of the services covered by these presents, and unless otherwise provided for in public order. , the parties mutually prohibit each other from bringing an action against the other more than one (1) year after the occurrence of its generating event.
21. Force majeure
Cases of force majeure suspend the obligations of the parties. Expressly, are considered as cases of force majeure those usually retained by case law. In addition, the parties agree that force majeure is defined as any event beyond the control of APP'Live and against which it could not reasonably protect itself and whose consequences it would not have mitigated otherwise than by incurring expenses disproportionate to the remuneration she receives.
APP'Live declares to have taken out with a notoriously solvent insurance company, a professional civil liability insurance for all bodily, material and immaterial damage caused to the customer or to a third party, within the framework of the execution of the present.
The customer declares to have taken out civil liability insurance with a notoriously solvent insurance company, for all damage that may be caused to the equipment, which remains the property of APP'Live until full payment of the price.
APP'Live is expressly authorized to quote the Customer as a commercial reference in its communications with third parties.
The contract composed of these general conditions, the commercial proposal, the quote or signed order form, the specific conditions corresponding to the associated services as well as the quality charters in force, expresses all the obligations of the parties.
No other technical, advertising or commercial document, no correspondence prior to the signing of the contract may create an obligation for either party.
In order to allow the evolution of its services or its administrative and commercial management, APP'Live may modify certain clauses and conditions of the contractual documents referred to in the order form in force, concerning the services in progress. The Customer will be notified of these changes at least 2 (two) months before the implementation. The Customer then has the option within this period, to refuse the application of these changes by registered letter with acknowledgment of receipt, received by APP'Live at the latest, at the end of the period of 2 (two) months referred to above. . In this case, the services will continue until the expiry date referred to in the order form without renewal and this, by way of derogation from the provisions of the special conditions which organize the duration of the various services offered by APP'Live.
26. Agreement of proof
All of the e-mails exchanged between the parties have the value of proof and will be binding on them.
The computerized registers kept in the APP'Live computer systems will be kept under secure conditions and considered as proof of communication between the parties.
The archiving and storage of access to the services are carried out on a reliable and durable medium that can be produced as evidence.
The Contract is subject to French law. In the event of a dispute between the parties relating to the formation, interpretation and/or execution of this Contract, express jurisdiction is attributed to the Commercial Court of Bourges, notwithstanding multiple defendants or warranty claims, even for procedures emergency or conservatory procedures, in summary proceedings or on request.
Any dispute between the parties arising from the formation, interpretation, execution, termination or termination of the Contract will be the subject of an attempt at amicable settlement. Otherwise, the dispute will be brought before the competent Court of Bourges to which the parties assign jurisdiction, even in the event of multiple defendants or warranty claims.
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