General Terms and Conditions of Services
The present General Terms and Conditions for the provision of services relating to the provision of and access to the Bloomup software solution are concluded between the company INNOVATIVE COMMUNITY, a simplified joint stock company with a share capital of 29,174 euros, whose registered office is located at 3, Avenue Didier Daurat - 31400 TOULOUSE, registered in the TOULOUSE Trade and Companies Register under the number 800 317 117, represented by Mr. Arnaud GROFF, as Chairman, hereinafter referred to as "Bloomup", whose activities include the design, development and marketing of innovative products and services of all kinds and the Customer wishes to access the software solution developed by Bloomup and the services associated with it. The Customer designates any individual or legal entity, acting in a professional or non-professional capacity. The present General Terms and Conditions for the provision of services cancel and replace all agreements, acceptances, conventions, acts or correspondence prior to the signature of the present General Terms and Conditions, in relation to their object.
Any Order from Bloomup implies by right the acceptance without reserve of the entirety of the present General Terms and Conditions. They exclude the application of any of the Customer's general terms and conditions, regardless of the clauses appearing on the Customer's commercial documents, unless Bloomup has made a prior and express exemption.
Bloomup has developed, designed and publishes a software solution for the management and monitoring of projects of all kinds (hereinafter the "Software"). Associated with this software, depending on the offer chosen by the Customer, are services provided by Bloomup (database integration, provision of a referent in the context of the use of the software, etc.).
Article 1. Subject
The purpose of the present General Conditions is to define the conditions under which:
- Bloomup grants the Customer, who accepts it, a right of remote use of the Software in return for the payment of a contractual fee by the Customer.
- Bloomup provides the Customer with associated services;
- the Customer undertakes to pay the contractual fee;
- the Customer undertakes to use the Software.
Bloomup may be required to provide additional services (database integration, provision of a reference employee, etc.) depending on the offer chosen by the Customer.
Article 2. Orders
All information given in the catalogues, brochures, and notices of Bloomup are for information purposes only. They may be modified at any time and without notice. Only the information made available to the Customer at the time of validation of his order by Bloomup is applicable.
Bloomup reserves the right to refuse an order, notably in the case of an incident of payment of previous orders or insufficient financial guarantees on the part of the Customer.
The provisions of article L.221-28 of the French law on the protection of personal data are recalled. of the Consumer Code according to which:
"The right of withdrawal cannot be exercised for contracts:
1° For the supply of services fully executed before the end of the withdrawal period and whose execution has begun after prior express agreement of the consumer and express renunciation of his right of withdrawal;(...)
13° For the supply of digital content not supplied on a material support whose execution has begun after prior express agreement of the consumer and express renunciation of his right of withdrawal. "
Consequently, and in application of these provisions, the Customer expressly agrees that the services provided by Bloomup shall be fully executed before the end of the withdrawal period. The Customer therefore acknowledges that he will not have any right of retraction under the present conditions.
Article 3. Duration
The present general conditions come into force on the date of validation of the order by Bloomup.
The commitments of the Parties are concluded for an initial period mentioned in the offer chosen by the Customer and validated by Bloomup and will then be renewed for successive periods of the same duration by tacit agreement, unless denounced by the Customer or Bloomup, by respecting a notice period of Thirty (30) working days before the anniversary date of the order.
Article 4. Services offered by the Software made available to the Customer
Bloomup provides the Customer with a service of access to the Software, accessible seven days a week and twenty-four hours a day, subject to interruptions due to planned maintenance, or interruptions due to external failure.
These temporary interruptions may not, under any circumstances, give rise to compensation to the Customer.
The Software remains on the IT infrastructure used by Bloomup and Bloomup therefore does not, under any circumstances, give any copy of the Software, in any form whatsoever, nor on any medium whatsoever, to the Customer.
The Customer declares that he has been able to freely verify, under his responsibility, that the Software, its ergonomics, its architecture and the technologies implemented by the Software or required for its use, are perfectly in accordance with his expectations and compatible with his IT environment.
Article 5. Obligations of Bloomup
Bloomup agrees to implement all human and technical means to provide the services for the benefit of the Customer, in particular, the provision of the Software to the Customer.
Bloomup undertakes to provide the Customer with the Software in strict conformity with the rules of the art of its profession, in particular with regard to the methods and techniques used. The same applies to all the services provided by Bloomup to the Customer. By virtue of the present contract, Bloomup grants the Customer, who accepts it, a non-exclusive and non-transferable right to use the Software for the duration of the execution of the present contract. This right of use is exercised by remote access, via the Internet network.
The right of use granted to the Customer is subject to full payment of the full amount of the fee provided for in the article "Financial Conditions".
No provision of the present contract may be interpreted as conferring rights of any kind whatsoever to the Customer other than those granted to him under the present contract. Unless otherwise agreed between the Parties, Bloomup reserves all rights not expressly granted under this Contract.
Article 6. Obligations of the Customer
The Customer undertakes:
- to transmit accurately, under his entire responsibility, all the information necessary for the execution of the services provided by Bloomup, and guarantees the accuracy of this information. The Customer undertakes in this respect to notify Bloomup of any modification of this information;
- to pay the contractual fee under the conditions set out in the article "Financial Conditions";
- not to use the Software in a manner not provided for herein. In this respect, the Customer undertakes in particular not to use the Software to provide any comments or opinions:
- messages of a pornographic and child pornographic nature;
- messages of a racist, xenophobic, revisionist, war criminal nature, discriminating or inciting hatred against a person or a group of persons because of their origin, their gender, their ethnic group, their beliefs or their way of life;
- messages of an insulting, violent, threatening nature, with shocking content or that offend human dignity;
- defamatory messages;
- messages infringing copyright and, more generally, intellectual property rights;
- messages infringing on image rights and respect for privacy;
- generally speaking, messages contrary to the laws and regulations in force in France;
- unsolicited advertising, whether commercial or not;
- messages containing or likely to contain viruses.
As a result, the Customer is responsible for any damage that these data or himself could cause to Bloomup, to a third party, or to the Software and guarantees Bloomup against any recourse that could be exercised against it by a third party as a result of these data.
The Customer undertakes not to use the Software in a way that could make it inaccessible, damage it or prevent it from functioning.
Article 7. Intellectual Property
All intellectual property rights and other rights relating to the Software, including copyrights, patents, trademarks, drawings and models, database producer rights, know-how, and all other intellectual property rights or other rights, are and remain the exclusive property of Bloomup and, for technologies under licence, of their authors and/or owners.
In accordance with and within the limits of the provisions of article L.342-1 of the Intellectual Property Code, Bloomup prohibits the Customer from extracting and reusing all or part of the content of the Software.
The Customer acknowledges the existence of Bloomup's intellectual property rights over the Software, and will not take any action to infringe, limit, restrict in any way whatsoever the property or rights of Bloomup in respect of the Software. The Customer undertakes not to dispute the status of Bloomup as author and owner of the Software.
No transfer of ownership rights to the above-mentioned elements to the Customer shall be made under the terms of the Agreement.
In particular, the Contract does not confer any right on the Customer on the source code of the Software.
Bloomup guarantees that it has the intellectual property rights on the Software.
The use of the Software by the Customer, not expressly authorised by Bloomup under the present contract, is illicit, in accordance with the provisions of article L.122-6 of the Intellectual Property Code.
The Customer therefore refrains in particular from :
-any reproduction, representation, dissemination or distribution of all or part of the Software, whether in return for payment or free of charge;
-any form of use of the Software, in any way whatsoever, for the purpose of designing, producing, disseminating or marketing similar, equivalent or substitute products or services or similar, equivalent or substitute documentation ;
-the adaptation, modification, transformation, arrangement of the Software, for any reason whatsoever, including to correct errors;
-any use for processing not authorized by Bloomup ;
Article 8. Assistance and maintenance
Bloomup will provide assistance and corrective and evolutionary maintenance of the Software.
Technical assistance covers:
- Questions about the use of the Software;
- Requests for evolution.
Bloomup will not be obliged to carry out any evolution requested by the Customer.
Bloomup will be discharged of any obligation under the heading of corrective maintenance in the following cases:
-In case of abnormal use of the Software by the Customer or use not in conformity with the contractual provisions;
-In case of violation of the intellectual property rights of Bloomup;
-In case of attempt to access the source code of the Software or modification made to the Software.
Problems of performance of the Software and, more generally, all problems not directly or not exclusively attributable to the Software are expressly excluded from the scope of the maintenance obligation.
Bloomup may put new versions of the Software online as part of the corrective and evolutionary maintenance of the Software.
Article 9. Financial conditions
Bloomup will periodically issue, depending on the offer chosen by the Customer (either monthly or annually), an invoice corresponding to the fee for the use of the Software and the amount of the services provided to the Customer on the basis of the rates in force on the date of the offer selected by the Customer and validated by Bloomup.
The sums due by the Customer to Bloomup are payable by bank transfer, direct debit, or credit card. In the event of payment by credit card, the Customer's bank account will be immediately debited when the offer is selected and validated by Bloomup. In the case of payment by bank transfer or direct debit, the Customer's bank account will be debited according to the periodicity mentioned in the offer selected by the Customer and validated by Bloomup.
In any event, the payment terms granted to the Customer may not exceed those referred to in the law n°2008-776 of 4 August 2008 on the modernisation of the economy, known as the LME, i.e. forty-five (45) days at the end of the month or sixty (60) days from the date of issue of the invoice. Any payment by compensation is excluded. No discount will be granted in case of early payment. The Customer may not grant himself a discount on his own initiative.
Prices are quoted exclusive of tax and will therefore be increased by the taxes in force on the day of invoicing.
The Customer will be invoiced for the costs relating to unpaid invoices.
Any delay in payment shall automatically and after prior formal notice, result in the payment of interest on arrears at a rate equal to three times the legal interest rate. This interest is due by the mere fact of the due date, and without prejudice to the right to terminate the Contract. In accordance with Decree no. 2012-1115 of October 2, 2012, the Customer shall also be automatically liable to pay a lump-sum indemnity for collection costs in the amount of forty (40) euros. Interest for late payment shall be capitalised annually.
In the event of non-payment, even partial, of any invoice whatsoever on its due date, Bloomup reserves the right to suspend all access to the Software, eight (8) days after receipt by the Customer of a formal notice to pay that has remained unsuccessful, and this until receipt of full payment of the sums due, without reimbursement or compensation, and without this suspension being considered as termination of the Agreement, but without prejudice to the right of Bloomup to terminate the Agreement in accordance with the article "Termination".
Article 10. Access and telecommunications
The Customer is personally responsible, under his sole responsibility, for the acquisition of hardware and software, as well as for the subscription of telecommunication subscriptions (Internet access) necessary for the remote use of the Software.
Article 11. Responsibility
11.1 Responsibility of Bloomup
The Parties agree that under the terms of the present contract, Bloomup is subject to a general obligation of means, taking into account in particular the risks inherent in Internet technologies.
The role of Bloomup consists of the supply of the Software, the use of which is left to the discretion and responsibility of the Customer, as well as the provision of the associated services. The Customer is solely responsible for the use and processing of the data. Consequently, Bloomup does not incur any liability as a result of this data and is in particular not responsible for the damaging consequences of possible errors in the data or in the results of the processing.
Bloomup shall not be liable for any damage suffered or caused by the use of the Software, whether material or immaterial, loss of profit, commercial or financial loss, increase in overheads, consequence of recourse by third parties or loss originating from or resulting from the use of the Software even if Bloomup has been notified in advance, as well as for damage caused to persons or property distinct from the subject matter hereof.Bloomup cannot be held responsible for any direct or indirect damage resulting from the fact that the results obtained by the Software are not fair, relevant, exhaustive, current, reliable and/or adapted to a particular use. In all cases, if Bloomup's liability should nevertheless be retained, the amount of damages which could be charged to Bloomup shall not exceed the sums actually received by Bloomup, for the execution of the present contract during the six months preceding the day on which its liability would be called into question.
This limitation of liability results from the distribution of risks, as freely negotiated between the parties, and the prices agreed between them, which reflect this. It is expressly agreed that this article shall survive termination or resolution of this agreement for any reason whatsoever.
11.2 Customer's liability
The Customer is responsible for the payment of all fees or expenses related to the use of the Software, including in particular the fees and charges invoiced by the access provider for the use of the network and data sharing. When using the Software, the Customer is solely responsible for the use he or she makes of the Software and the content he or she communicates. In this respect, he is in particular responsible for :
- for the content produced by him and/or validated by him through the Software, and in particular for respecting the morality of the said content;
- for its adequacy to the laws and regulations, in particular with regard to the protection of minors, the repression of apology for crimes against humanity, incitement to racial hatred as well as incitement to violence, in particular incitement to violence against women, as well as attacks on human dignity and respect for the human person; and
- for respecting the rights of third parties, in particular with regard to intellectual property. In this respect, the Customer is solely responsible for the use and exploitation that he makes of the Software. Bloomup cannot be held responsible in the event of infringement of the legislation or the rights of third parties within the framework of this use and exploitation.
Article 12. Insurance
Professional Clients declare that they are insured for their professional civil liability with a company known to be solvent for all material and immaterial damages resulting from the execution of the Contract by their staff and/or employees.
Article 13. Confidentiality
The Parties undertake to keep information relating to the present agreement confidential for its entire duration and for ten years from its termination for any reason whatsoever.
Article 14. Commercial reference
The Customer expressly authorises Bloomup to use its name, acronym, logo, trade name and company name, on any document, as a commercial reference.
Article 15. Early termination
This Agreement may be terminated early by Bloomup in the event of non-performance by the Customer of any of the obligations contained in this Agreement.
Early termination will take place automatically fifteen (15) days after a formal notice which has remained unsuccessful has been sent by registered letter with acknowledgement of receipt to the Customer, indicating the intention to expressly apply this termination clause.
Termination will take place without prejudice to any other right or action which Bloomup may have against the Customer.
Article 16. Consequences of the termination of the Contract
Notwithstanding the term of the Contract for any reason whatsoever, the Parties shall remain bound by the obligations contained in the following articles:
- "Consequences of the termination of the Contract";
- "Intellectual property";
- "Protection of personal data";
- "Commercial reference".
In the event of termination of services for any reason whatsoever, the Customer shall immediately and at his own expense cease all use of the Software and, as such, delete all elements and information relating thereto.
Article 17. Force majeure
Under no circumstances may the Parties be held liable for failures or delays in the execution of the present Agreement due to one of the cases of force majeure or fortuitous events commonly retained by the jurisprudence of French courts and tribunals.
If the effects of a case of force majeure continues beyond a period of thirty (30) days, each of the Parties shall have the option, at the end of this period, to terminate the present Agreement immediately and by operation of law, by sending a registered letter with acknowledgement of receipt.
Article 18. Protection of personal data
Each Party undertakes to comply with all legal and regulatory provisions in force regarding Personal Data, and in particular those of Law No. 78-17 of January 6, 1978 on Data Processing, Data Files and Individual Liberties (hereinafter referred to as the "Data Protection Act") and Regulation (EC) 2016/679 of the European Parliament on the protection of personal data (hereinafter referred to as the "DPR").
Each Party undertakes to respect the security and confidentiality of personal data and, more generally, of all information communicated to it by the other Party.
Within the framework of the Agreement, the Parties have agreed that Bloomup shall not collect and process personal data on behalf of the Customer, the latter being solely responsible for the use it makes of the Software as well as the personal data it processes within the framework of this use.
Article 19. General provisions
The present general terms and conditions contain all the obligations of the Parties with regard to their subject matter.
They cancel and replace all previous agreements between the Parties, whether written or verbal, having the same subject matter, in particular the Customer's general terms and conditions.
Unless expressly provided for in the Contract, no modification of the Contract may result from an exchange, even written, between the Parties, or be inferred from the behaviour or words of a Party, without the signature of such an amendment.
In the event of the nullity of a provision of the Contract, the other provisions will remain in force. The Parties will then agree to adopt a new provision that will replace the provision concerned.
Each Party acts in its own name and on its own behalf as an independent contractor.
It has neither the power nor the authorization to bind the other Party in any way whatsoever.
None of the provisions of the Contract may be interpreted as creating, between the Parties, a mandate, a subsidiary, an agent or employee-employer relationship.
The fact that one of the Parties has not required the application of a provision of this Agreement shall in no way be considered as a waiver of the rights that this Party holds under this provision.
Article 20. APPLICABLE LAW AND JURISDICTION
THE CONTRACT IS GOVERNED BY FRENCH LAW. THE PARTIES, WHEN THEY ARE MERCHANTS, SHALL SUBMIT TO THE JURISDICTION OF THE COMMERCIAL COURT OF THE SEAT OF BLOOMUP, WHICH SHALL HAVE JURISDICTION, EVEN IN THE EVENT OF A PLURALITY OF DEFENDANTS, OR IN THE EVENT OF A THIRD PARTY CLAIM OR REFERENCE, FOR ANY DISPUTE RELATING TO THE VALIDITY, INTERPRETATION OR PERFORMANCE OF THIS CONTRACT. IN ADDITION, WHEN IT HAS DEPROFESSIONAL QUALITY, ANY ACTION BY A CUSTOMER AGAINST THE BLOOMUP UNDER THIS CONTRACT SHALL BE PRESCRIBED BY ONE YEAR TO BE ACCOUNTED FOR THE EVENT WHICH HAS BORN HIM.
Date: October 8, 2020