TERMS AND CONDITION OF USE
ARTICLE 1: PRESENTATION
OPTIMETRIKS (hereinafter “the Service Provider”), a French Simplified Joint-Stock Company [SAS] with capital of €20,336, registered in the Paris Trade and Companies Register under number B 808 898 340, having its registered office at 40, Avenue Secrétan, 75019 Paris, is a company specialising in consulting and market studies for professionals. OPTIMETRIKS has developed a specific application in SaaS mode (hereinafter “OPTIMETRIKS SOLUTION”) dedicated, in particular, to analysing the sales strengths of a product or brand in a given geographical area. The purpose of this Agreement is to determine the conditions of use of the Application as well as the services offered depending on the option subscribed to by the Client, unless otherwise provided for by special agreements between the Service Provider and the Client. The Client acknowledges that it has read and accepted all the terms of this Agreement (“T&C”).
ARTICLE 2: DEFINITIONS
Solutions: means the operational functions provided by the OPTIMETRIKS SOLUTION made available to the Client. Data: means all types of information and in general all data transmitted by the Client in the context of the use of the OPTIMETRIKS SOLUTION and associated solutions. Client: means any professional legal entity that subscribes to the terms and conditions of this Agreement. User: means any person placed under the Client’s responsibility (agent, employee, sales representative, representative etc.) having access to the OPTIMETRIKS SOLUTION application, the associated services and solutions. Application service: means the services offered in SaaS mode allowing the use of the OPTIMETRIKS SOLUTION and the associated solutions OPTIMETRIKS SOLUTION: means the application (software in SaaS mode) called “OPTIMETRIKS SOLUTION” and its associated solutions, accessible from a web and mobile connection interface, provided by the Service Provider to the Client under this agreement.
ARTICLE 3: SUBJECT OF THE AGREEMENT
The purpose of this Agreement is to set out the terms and conditions governing the provision of the OPTIMETRIKS SOLUTION (software in SaaS mode) to the Client, as well as the associated application solutions and services.
The Service Provider grants to the Client, which accepts under the conditions provided for in this Agreement:
a right of access to the OPTIMETRIKS SOLUTION;
a right to use the OPTIMETRIKS SOLUTION
a right of access to services including, notably, hosting, maintenance and assistance.
ARTICLE 4: DURATION OF THE AGREEMENT
This Agreement is concluded for an indefinite period, and takes effect from the date of taking out the subscription chosen by the Client. The Client may terminate this Agreement at any time subject to three (3) months’ notice from the date of its withdrawal (via the web application) or the date of sending an email to the Service Provider. Furthermore, the Agreement may be terminated under the conditions provided for in Article 15 hereof.
ARTICLE 5: PRICING CONDITIONS AND PAYMENT TERMS
Any order placed by a Client is subject to an estimate drawn up by the Service Provider on the basis of the information communicated by the Client and depends on the options subscribed to by the latter. The order becomes final only after receipt of the order form signed by the Client, as well as after proper collection of the first monthly instalment. Prices may be revised twice a year. The Service Provider shall inform the Client of any price changes three (3) months before they take effect. Prices are expressed in euros excluding taxes and costs. Invoices shall be sent at a specified frequency, i.e. monthly, quarterly or annually, and are payable by bank transfer, or by another means specified in the quotation, within a maximum period of 30 days from their issue date, net of all taxes. Any invoice that is unpaid in whole or in part on its due date shall give rise to payment by the Client of late penalties fixed at 1.5 times the legal interest rate. These penalties shall be automatically payable from the day following the day on which payment is due. The Service Provider may also claim fixed compensation of €40 in accordance with the provisions of Decree no. 2012-1115 of 2 October 2012. Demonstration pilots may be made available to the Client free of charge and without commitment, for a limited period and at the discretion of the Service Provider.
ARTICLE 6: DESCRIPTION OF APPLICATION SERVICES
The OPTIMETRIKS SOLUTION is a SaaS-type software package that allows the Client and Users to:
Control, in real time, the sales strengths of a brand in a given market;
Manage visits, in-store inspections to define the state of the stock;
Enable audits of retail sales;
Produce sales reports;
Checking the condition of the stock held by resellers/distributors;
Identify points of sale by taking photos and GPS coordinates;
Digitise all distribution and sales processes.
The Application will be accessible via a computer (web application), smartphone and/or tablet using an Internet connection (mobile application). The Application Services offered, accessible in web and mobile mode, are complementary. The Mobile Application allows the Client and/or the User during visits and/or inspections to collect and transmit real-time information relating to the distribution and management of the customer’s sales and business relationships. From the information collected during visits and/or inspections, the Web Application allows the Client and/or the User, via an interface, to view and check the performance of the users of the mobile application, sales reports, stock status, etc. The Client and/or Users may manage, from a specially dedicated private area, the solutions associated with the application, accessible via a web link and/or via a login and password communicated by the Service Provider. Technical documentation relating to the operating procedures for the OPTIMETRIKS SOLUTION is available from the address https://optimetriks.freshdesk.com/a/ The Client and/or Users benefit from the right to use the OPTIMETRIKS SOLUTION and associated solutions on a non-exclusive basis under the conditions set out in this Agreement.
The Service Provider shall provide, directly or indirectly through a subcontractor, in particular:
maintenance and hosting of the Application;
data backup and security;
technical assistance and support.
The features and solutions associated with the OPTIMETRIKS SOLUTION may evolve over time and it will be the Client’s responsibility, where applicable, to train in these new or developments with the help of the dedicated documents made available by the Service Provider. The OPTIMETRIKS SOLUTION is hosted online on the Google Cloud platform.
ARTICLE 7: NETWORK AND ACCESS
Access to the OPTIMETRIKS SOLUTION requires an Internet connection. The Client is solely responsible for choosing the Internet service provider, and for the risk of network access interruption. To be able to access the OPTIMETRIKS SOLUTION, the Client and the User are responsible for the compatibility of their computer equipment and computers, with the Client and the User having a web browser in its latest updated version.
The OPTIMETRIKS SOLUTION is a SaaS-type software package that allows the Client and Users to:
24 hours a day
7 days a week
including Sundays and public holidays.
However, technical updates of the application may be necessary and may lead to an interruption of the Application Services. These interruptions shall be notified in advance to the Client. The aforementioned update services may not exceed two (2) business days.
The Client and/or User must be identified when accessing the Application Services by means of either:
a User ID and password assigned to each Client and/or User;
or a web link included in an email sent to the Client and/or the User and personalised according to the Client and/or the User.
The User IDs are intended to restrict access to the Application to the Client and/or Users, to protect the integrity and availability of the Application, as well as the integrity, availability and confidentiality of the Data as transmitted by Users and/or Clients. The user IDs and/or connection emails including a customised Internet access link are strictly personal and confidential. They must not be directly or inadvertently disclosed to other persons or entities or shared or used by persons or entities other than the Client or User. The Client and/or User are solely responsible for the use of their user ID, password and/or connection email including a customised Internet access link. Any substitution of login ID, password or email including a personal Internet access link of another Client and/or another User is strictly prohibited. The Client must immediately inform the Service Provider if its login ID, password and/or connection email including a customised Internet access link has been lost, stolen, or used by another person or entity.
ARTICLE 8: SERVICE PROVIDER’S OBLIGATIONS
8.1 Right of access to and use of the OPTIMETRIKS SOLUTION
The Service Provider undertakes to make every effort to ensure that the Client and the User have access to and use of the OPTIMETRIKS SOLUTION under the conditions provided for in this Agreement. The Service Provider shall not be held liable in the event of problems relating to a connection by the Client or the User to the Internet, to computer viruses transmitted via this network or by another means, or to any malicious act carried out via this network or by another means. The Service Provider may not be held liable in the event of possible interruptions and/or slowdowns of the Internet network which do not allow optimum use of the OPTIMETRIKS SOLUTION. The OPTIMETRIKS SOLUTION may occasionally be suspended due to interventions, maintenance and updates required for the proper operation of the application. In the event of an interruption to the application, the Client will be informed before the planned interruption. In the event of an emergency or an imperative need to preserve the data, requiring an exceptional intervention, the Service Provider will be exempted from this prior notification, and it will be responsible for providing any further explanations in a timely manner once the intervention has been carried out.
8.2 Maintenance & support
The Service Provider shall perform the corrective and upgrade maintenance of the OPTIMETRIKS SOLUTION directly or through its own service providers. It must ensure that any malfunctions affecting the application are corrected as quickly as possible and make any improvements that it deems useful. The Client and/or User benefit directly from updates and functional developments of the OPTIMETRIKS SOLUTION. These are expressly subject to this Agreement. The Client undertakes to notify the Service Provider, without delay, of any malfunction or any request relating to the OPTIMETRIKS SOLUTION, at the following email address: [email protected] The Service Provider shall provide the Client with documentation relating to the operating procedures of the OPTIMETRIKS SOLUTION, available online at https://optimetriks.freshdesk.com/a/.
ARTICLE 9: USER LICENSE AND INTELLECTUAL PROPERTY
The Service Provider has sole rights to the OPTIMETRIKS SOLUTION. It grants the Client and the User by this Agreement a single, personal, non-exclusive, non-assignable and non-transferable right of use. The right of use granted to the Client and/or the User is only valid for the duration of the option subscribed to by the Client. The rights granted under this Agreement may vary depending on the option subscribed to by the Client and the features offered. The Client and/or the User may only use the OPTIMETRIKS SOLUTION and the services offered for their own needs, to the exclusion of any other purpose and in particular any marketing, distribution, resale, etc. The Client and/or User shall also refrain in particular from any adaptation, modification, translation, arrangement, dissemination, decompilation, without this list being exhaustive. Notwithstanding the user licence granted to the Client and/or the User, the Service Provider shall remain the holder of the property and operating rights relating to any element of the OPTIMETRIKS SOLUTION. The provision of the OPTIMETRIKS SOLUTION under the conditions provided for in this Agreement may not be considered as the assignment of any intellectual property right to the benefit of the Client and/or the User. The Client and/or User shall refrain from reproducing any element of the OPTIMETRIKS SOLUTION by any means, form or medium whatsoever. The Service Provider also holds rights to the logos and graphic charter of the interface allowing the use of the OPTIMETRIKS SOLUTION. The Client and the User shall therefore refrain from reproducing in whole or in part any element of the interface that allows access to the OPTIMETRIKS SOLUTION.
ARTICLE 10: PROCESSING OF DATA
10.1 Personal data
Personal data may be processed at the request of the Client and/or the User in connection with the strict use of the OPTIMETRIKS SOLUTION.
The use of the OPTIMETRIKS SOLUTION may require the communication of the personal data of Users, natural persons, listed below:
First name, last name, email address, IP address, position, entity they belong to;
Photographs when they are used to identify an individual;
Geolocation data from the mobile phone and/or tablet;
This data is intended to be collected, stored, hosted and used in calculation bases and compilations for the sole purpose of executing this SaaS-mode service agreement, and in accordance with the provisions of Article 6 (1) b of the GDPR. This data will be used to produce online reports at the Client’s request. This data will be retained throughout the term of this Agreement.
10.2 Maintenance & support
In its capacity as a processor of the personal data communicated to it in connection with the performance of this agreement, the Service Provider undertakes to:
Process the data solely for the purpose(s) that are the subject of the processing;
Process the data in accordance with documented instructions from the Client; If the Service Provider considers an instruction to be a breach of national, international or European statutory or regulatory data protection provisions, it will immediately inform the Client. If the Service Provider is required to transfer data to a third country or to an international organisation, pursuant to European Union law or the law of the Member State to which it is subject, it will inform the Client thereof in advance, unless there are reasons of public interest.
Ensure the confidentiality of personal data and apply data protection by design and default. This includes using appropriate technical measures such as secure encryption
Assist the Client, as appropriate, in carrying out data protection impact assessments and prior consultation with the supervisory authority;
Implement technical and organisational measures guaranteeing a level of security appropriate to the risks
The Client is informed that for the purposes of carrying out this Agreement, the Service Provider may use subcontractors, and in particular for data hosting, on the Google Cloud online storage platform. The Service Provider undertakes to inform the Client of any planned change concerning the addition or replacement of subcontractors. The Client has a period of 3 weeks from the date of receipt of this information to present its objections. Subcontracting may only be carried out if the Client has not raised any objections within the agreed time frame. It is the responsibility of the original processor to ensure that the subsequent processor provides the same adequate guarantees for the implementation of appropriate technical and organisational measures so that the processing meets the legal, national and European requirements.
10.4 Rights of data subjects
The Client undertakes to directly inform the persons concerned at the time of the collection of personal data of the purposes and nature of the data operations, as well as their rights, in particular the right to access, rectify, erase and oppose, the right to restrict processing, the right to data portability, and the right not to be the subject of an automated individual decision. The Service Provider will assist the Client, as far as possible, in fulfilling its obligation to comply with requests to exercise the rights of data subjects and will respond to requests of data subjects in the event that their rights are exercised. In the event that the persons concerned exercise their right directly with the Service Provider, the Service Provider shall send these requests directly upon receipt to the Client’s email address communicated for this purpose.
10.5 Notification of personal data breaches
The Service Provider shall notify the Client of any breach of personal data within a maximum of 48 hours of it becoming aware of it. This notification is accompanied by any useful documentation to enable the Client, if necessary, to notify this breach to the competent supervisory authority.
Such notification shall include:
A description of the nature of the personal data breach;
The categories and approximate number of data subjects concerned;
The name and contact details of the data protection officer or any other contact point
The likely consequences of the personal data breach
Description of actions taken to address the breach
10.6 Fate of data
In performing this agreement, the Service Provider undertakes to destroy all personal data relating to the Client, or at any time on simple written request by the Client to the contact email address: [email protected]
10.7 Record of categories of processing activities
The Service Provider will keep a written record of all categories of processing activities carried out on behalf of the Client, which it will have at its disposal to demonstrate compliance with its obligations and to enable the performance of audits, including inspections, by the Client, and to contribute to these audits.
The Client is solely responsible for the quality, legality and relevance of the data and content that it transmits for the purpose of using the OPTIMETRIKS SOLUTION. The Client acknowledges that the Service Provider will not be liable for data and/or content that does not comply with laws and/or regulations, public order or its own needs. The Client shall hold the Service Provider harmless against any recourse, complaint or claim made by any person whose personal data is reproduced or hosted via the OPTIMETRIKS SOLUTION, without its authorisation. In general, the Client is responsible for the data, content and information that it sends or disseminates via the OPTIMETRIKS SOLUTION.
ARTICLE 11: DATA REVERSIBILITY
Upon simple written request, the Client may recover its data or request its destruction. Client data shall be returned in the form of electronic or materialised files. The Service Provider undertakes to return or destroy the Client’s data within a maximum period of 3 months from receipt of the Client’s written request, or from the date of termination or expiry of the Agreement. The Service Provider undertakes to ensure the confidentiality of the Client’s data until its return or destruction. In any event, the data will be destroyed when the agreement expires.
ARTICLE 12: REPORT – SURVEY – DELIVERABLE
The Service Provider shall allow the Client to view the performance reports of users of the mobile application via a dedicated online interface, which updates itself dynamically and automatically. This interface will be used to give full visibility of the data collected, and to analyse it with the aim of improving the management of the distribution processes.
ARTICLE 13: LIABILITY
In the context of this Agreement, the Service Provider is only bound by an obligation of means. In the event of a fault by the Service Provider proven by the Client, the Service Provider will only be liable for compensation for the monetary consequences of direct and foreseeable damage as a result of the performance of the services offered by the Service Provider, to the exclusion of any indirect or unforeseeable damage of the Client or third parties. In any event, the Service Provider shall not be liable for more than six months of the subscription.
ARTICLE 14: FORCE MAJEURE
Neither of the Parties shall be liable for the total or partial non-performance of its obligations under the Agreement if this total or partial non-performance results from the occurrence of a case of force majeure (as defined by article 1218 of the French Civil Code), and provided that the Party unable to perform its contractual obligations informs the other Party in writing within a maximum period of seven (7) days from its occurrence. The obligations of the Party invoking a case of force majeure shall be suspended with effect from notification of this event to the other Party, and provided that the Party concerned is able to prove the reality of such an event. In the event that the force majeure event continues for more than thirty (30) days from its notification by the prevented Party, each of the Parties may, unless the Parties agree to continue the Agreement, terminate the Agreement ipso jure and without compensation for the matter of force majeure, as soon as the expiration of the thirty (30) day period referred to above, by simple notification to the other Party.
ARTICLE 15: TERMINATION OF THE AGREEMENT
This Agreement may be terminated at any time by one of the parties subject to three (3) months’ notice from the date of withdrawal of the Client (via the web application) or the date of sending an email. Termination may also take place immediately and without prior notice after sending to the defaulting party a formal notice by email recalling the obligation not performed and not followed by effect within fifteen (15) days from the sending of the email, without any legal formality being necessary, and in particular in the event of non-payment of an invoice by the Client within the time limits. This agreement may also be terminated immediately and without notice by the Service Provider sending an email with acknowledgement of receipt in the event of serious breaches of this agreement and in particular in the event of breach of Article 9 of this Agreement. The User IDs and passwords communicated to the Client, as well as access to the OPTIMETRIKS SOLUTION shall be deactivated upon termination or at the end of the contract. In all cases of termination, all sums paid or remaining due by the Client up to the effective date of termination shall remain definitively retained by the Service Provider, without prejudice to any claim for legal interest and any damages that may be requested.
ARTICLE 16: INTUITU PERSONAE CHARACTER OF THE AGREEMENT
This Agreement is granted to the Client on a strictly personal basis. The Client is expressly prohibited from assigning or contributing to a third party, in any capacity whatsoever, in any form whatsoever, free of charge or for consideration, all or part of the rights granted to it by this agreement, without having obtained the Service Provider’s prior, express and written consent. Failing this, the Service Provider reserves the right to terminate this Agreement without compensation and without notice.
ARTICLE 17: INSURANCE
The Service Provider has taken out the necessary insurance policies to cover the risks associated with the performance of its business.
ARTICLE 18: APPLICABLE LAW
This Agreement is governed by French law. In the event of difficulties in interpretation, the French version of this agreement shall take precedence over any other version in a foreign language. Any dispute relating to the validity, interpretation or performance of this Agreement, and failing any amicable agreement between the Parties, shall be submitted to the competent French courts within the jurisdiction of the Paris Court of Appeal.