OCTOPUS HACCP GENERAL TERMS AND CONDITIONS OF SERVICE, No. 003, December 16, 2024
PREAMBLE
Octopus HACCP, a trademark operated by Octopus Digital Kitchen, a simplified joint stock company (SAS) under French law, located at 2 rue de la Roquette, passage du cheval blanc cour de mars, registered with the Trade and Companies Register (R.C.S) of Nanterre under number 815 403 142, represented by Ms. Gwenaël AVERTIS in her capacity as President,
hereinafter referred to as the Service Provider;
And any natural or legal person wishing to use one or more services and/or the Octopus HACCP Solution provided by the Service Provider,
hereinafter referred to as the Customer.
Definition:
Back Office: refers to the user interface of the Solution accessible to the Customer;
Force majeure: refers to any irresistible, unforeseeable and external event such as, but not limited to, fire, explosion, transmission network failure, collapse of facilities, epidemics, earthquakes, floods, power failure, war, embargo, law, injunction, request or requirement of any government, strike, boycott, withdrawal of authorization from the telecommunications operator, or any other circumstance beyond the reasonable control of the Service Provider;
Customer: refers to the beneficiary, acting within the scope of its professional activity, of the Octopus HACCP Solution;
Order: refers to the process of ordering the Equipment, services, and the Octopus HACCP Solution;
Quote: refers to the document sent by the Service Provider to the Customer specifying the price and details of the subscription to the Octopus HACCP Solution and, where applicable, the order for the Equipment;
Supplier: refers to the company that supplies the Equipment to the Service Provider;
Delivery of Equipment: refers to the delivery, provision and transfer to the Customer of physical possession or control of the Equipment;
Equipment: refers to the media enabling the Customer to access the Octopus HACCP Solution, whether sold or rented by the Service Provider to the Customer or owned by the Customer.
Solution: refers to the Octopus HACCP software and all the services offered by Octopus to its customers, details of which are set out in the Quote.
Article 1. Acceptance
The Customer declares that it has read these General Terms and Conditions of Service and verified that the Solution meets its needs before subscribing to the Octopus HACCP offer. The Customer declares that it has received from the Service Provider all pre-contractual information and advice necessary for its subscription to the Octopus HACCP offer. The Customer declares that they have accepted them without reservation by returning the Quote issued by the Service Provider. Otherwise, the activation and use of the Solution imply full and complete acceptance of the terms and conditions set out in these General Terms and Conditions of Service. The Customer declares that they have the powers and full legal capacity to commit to and adhere to these General Terms and Conditions of Service without restriction or reservation.
The General Terms and Conditions of Service are available at all times on the Octopus HACCP website at the following address: http://octopus-haccp.com.
The applicable General Terms and Conditions of Service are those in force on the Website on the date of the Customer’s request (date of signature of the quote). They are identifiable by a version number and a date of creation. The Service Provider reserves the right to unilaterally modify these General Terms and Conditions of Service at any time, without notice, and to notify the Customer in writing with a time stamp. The new General Terms and Conditions of Service shall apply between the Service Provider and the Customer for any new Order, as well as in the event of tacit renewal.
Article 2. Purpose
The purpose of this document is to define the legal, technical, and financial terms and conditions governing the relationship between the Service Provider and the Customer. The essential purpose of the contract between the Service Provider and the Customer is simply to provide the Solution, with any other services being ancillary and subsidiary to this purpose. The contractual documents are, in descending order of priority:
– these General Terms and Conditions of Service,
– any other document or agreement incorporated by reference herein or incorporating these terms and conditions by reference;
– the Special Terms and Conditions and/or appendices proposed by the Service Provider.
These Special Terms and Conditions and/or appendices cancel and replace any prior specific agreement, including offers, drafts, or exchanges of messages. However, the Special Conditions and/or appendices do not derogate from the General Terms and Conditions of Service.
The services offered by the Service Provider free of charge are also governed by these General Terms and Conditions of Service.
Article 3. Characteristics of the Solution
3.1.1. Content of the Solution : the Solution provided by the Service Provider includes installation and subscription:
Installation, including:
– Back Office configuration;
– Remote training of the Customer’s staff via videoconference.
Subscription, including:
– Access to the Back Office management system;
– License for use of the Octopus HACCP Solution by the Customer;
– Data hosting;
– Corrective maintenance of the Solution;
– Access to technical support.
3.1.2. Options: in addition, for an additional price specified in the Quote, the following options are available:
For installation:
– Delivery of the Equipment;
– In-person training of the Customer’s Staff by a member of the Service Provider’s team.
For the subscription:
– Rental of the Equipment, the details and characteristics of which will be specified in the Quote, or sale of equipment, the details and characteristics of which will be specified in the Quote;
– Provision of protection for the Equipment;
– Insurance for the Equipment.
3.2.1. Place and terms of delivery: the Equipment shall be delivered to the address indicated by the Customer on the Quote.
The Customer shall be solely responsible for the accuracy of the information relating in particular to the delivery address. The Service Provider shall not be held liable in the event of theft or loss of the Equipment resulting from incorrect information provided by the Customer.
Delivery is made by direct handover of the Equipment to the Customer by the Supplier or, failing that, by the Service Provider sending a notice of availability to the Customer. Within fifteen (15) days of the notice of availability, the Customer must collect the Equipment ordered.
Failure by the Customer to collect the Equipment within the specified period constitutes a breach of contract. If the Equipment is not collected within the specified period, the Service Provider may, after giving the Customer formal notice, which has remained without effect, proceed with collection, notify the Customer of the unilateral termination of the order and retain as compensation the amounts already paid for the invoicing of the Equipment, the configuration and adaptation costs.
When the Equipment is delivered to the address indicated on the Quote by a carrier, it is the Customer’s responsibility to check the following in the presence of the delivery person:
– the number of packages;
– that the references match the order;
– the absence of any apparent defects,
– the condition of the Equipment delivered and, in the event of damage, missing items or any anomaly concerning the Equipment (incorrect reference, missing Equipment, apparent defect).
In the event of any anomaly, the Customer must make clear, precise and complete handwritten reservations on the Delivery Note or on the transport receipt, and may refuse the Equipment and notify the Service Provider. In order to prevent fraudulent removal of the Equipment, a power of attorney on headed paper signed by the legal representative must be provided by the person present for collection, together with their identity document and that of the legal representative. In all cases, delivery shall take effect at the time of collection of the Equipment by the Customer or the carrier appointed by the Service Provider in the name and on behalf of the Customer.
In the event of equipment rental, the Customer shall refrain from removing or concealing any ownership notices appearing on the Equipment. The Customer shall also refrain from any act of disposal of the Equipment, including, but not limited to: sale, rental or loan, as well as any technical intervention, transformation or modification.
Delivery delays: Delivery times are provided for information purposes only. Any delivery time indicated/requested by the Customer is subject to the Service Provider’s approval. The Service Provider will make every effort to deliver the Equipment within the specified time frame, subject to the availability of the Equipment from its Suppliers. No compensation or penalty (except for actual damage proven by the Customer and for which the amount of subsequent compensation has been previously discussed and approved by the Service Provider) may be granted to the Customer in the event of a delay that is not directly and exclusively attributable to the Service Provider. It is specified that delays or losses by the postal service or other shipping service are not attributable to the Service Provider. Furthermore, no order may be canceled due to the indicative deadline being exceeded, unless the Service Provider has given its prior written consent.
Unavailability of Equipment:
The Equipment is supplied while stocks last. In the event of unavailability of the Equipment, the Service Provider shall immediately inform the Customer and propose a new delivery date.
In the event of disagreement by the Customer, the Service Provider shall refund the sums paid within one month. Apart from the refund of the price of the unavailable Equipment, the Service Provider shall not be liable for any cancellation compensation.
Contractual warranty: in the event of a fault in the Equipment purchased by the Customer upon unpacking, the Service Provider guarantees the repair, replacement or refund of the Equipment. This warranty is valid for one month from delivery. This warranty shall be void in the event of normal use of the Equipment by the Customer in terms of handling, use or storage, or if the defect is attributable to the Customer. Any claim made after one month of delivery shall be the responsibility of the Service Provider only to the extent defined by the legal guarantees of public order. The Customer is encouraged to contact the Supplier directly and may assert against the Supplier the same guarantees available to the Service Provider.
3.2.2. Transfer of risk: The risks of loss or damage to the goods are transferred to the Customer at the time of direct delivery of the Equipment by the Supplier or, failing that, upon sending a notice of availability to the Customer.
3.2.3. Transfer of ownership: in the case of Equipment rental, the Equipment is and remains the exclusive property of the Service Provider; the mere provision of the Equipment to the Customer during the subscription period does not confer any right of ownership whatsoever.
3.2.4. Retention of title: in the context of a sale of Equipment by Octopus HACCP, all intangible elements relating to the Octopus HACCP solution made available to the Customer as part of the Service are and remain the exclusive property of the Service Provider.
The Customer shall only have a right of use for the duration of the Service and within the limits of the subscription payments. The Service Provider shall remain the owner of the rented Equipment and the Customer undertakes to take all necessary precautions for the proper preservation of the Equipment.
Article 4. Subscription terms and conditions
4.1. Subscription terms
4.1.1. Quotation: any Quotation presented by the Service Provider and signed by the Customer is contractually binding. Similarly, any order received by the Service Provider, dated and signed, is firm and final.
The equipment (tablet, printer, consumables, or other), setup and adaptation costs are invoiced on the date the Quotation is signed. Training costs and fees are invoiced on the day of the customer’s training by the Octopus HACCP teams, within a maximum of thirty (30) days of receipt of the configured equipment at the customer’s premises.
The Service Provider reserves the right not to provide its Solution in case of doubt about the Customer’s solvency.
4.1.2 Implementation: once the Service Provider has completed the initial training for the customer’s teams, the first month of subscription is activated on the date of the training.
The first month of subscription will commence no later than thirty (30) days after receipt of the Equipment by the customer, even if the training for the customer’s teams has not been completed.
Furthermore, if the Customer, despite reminders from the Service Provider, does not send the Service Provider the answers to all the forms and/or questions sent and necessary for the configuration of the Solution for the Customer, the first subscription will commence no later than sixty (60) days after the forms and/or questions were sent.
In this case, the Service Provider shall carry out standard configuration for the Customer, ship the Customer’s Equipment if this has not been done, and/or provide the Customer with their login and password to access their account, and shall remain available to the Customer in order to adapt the standard configuration of their account to their needs.
4.1.3. Withdrawal: No right of withdrawal is granted to the Customer acting in the course of its business. The Customer shall be liable for all subscriptions to which it has committed itself when signing the quote. The commitment period:
– Has been systematically communicated to the Customer by the Service Provider’s sales representative
– Is stated on the quote sent to and signed by the Customer
– Is stated on all subscription invoices sent by the Service Provider to the Customer.
Unsubscribing is therefore impossible during the entire period for which the Customer is committed.
However, if the Customer is classified as a “consumer” in accordance with Article L221-28 3° of the French Consumer Code, “the right of withdrawal cannot be exercised for contracts: (…) for the supply of goods made to the consumer’s specifications or clearly personalized. The Customer therefore acknowledges that the configuration of the back office by the Service Provider constitutes a personalized service within the meaning of the aforementioned article. Consequently, the Customer is expressly informed that, in accordance with these provisions, they may not exercise their right of withdrawal with regard to the configuration of the back office. In any event, the Customer expressly waives their right of withdrawal to the fullest extent permitted by law.
4.2. Price and costs
4.2.1. Setting the price: prices are set by the terms of the Quote.
4.2.2. Price changes: in the event of tacit renewal, as mentioned in Article 4.4, the Service Provider reserves the right to unilaterally change the price of the Solution to be provided and undertakes to notify the Customer within one (1) month before the end of the subscription so that the Customer may, if necessary, exercise its right not to renew the contract.
4.2.3. Costs: additional transport, delivery or postage costs (to which any other costs incurred by the Service Provider shall be added), of which the Customer has been informed prior to placing the order, shall be specified in the Quote.
If the delivery service provider leaves a notice of availability for the Customer, such as a delivery notice, and the Customer does not collect the goods within the time limit specified by the service provider, the costs of re-shipping shall be borne by the Customer.
4.3. Terms of payment
4.3.1. Payability: the price is payable upon signature of the Quote. Invoices are sent electronically. The invoice is payable within thirty (30) days of its issue or according to the agreed schedule, if applicable.
Equipment (tablet, printer, consumables, or other items), setup and adaptation costs shall be invoiced on the date the Quote is signed. Training costs and fees shall be invoiced on the day of the customer’s training by the Octopus HACCP teams, within a maximum of thirty (30) days of receipt of the configured equipment at the customer’s premises or within a maximum of sixty (60) days after the forms and/or questions have been sent if the Customer, despite reminders from the Service Provider, does not send the Service Provider all the answers to the forms and questions sent and necessary for the configuration of the Solution.
4.3.2. Payment methods: payment may be made either by bank transfer or direct debit.
For direct debit, the Customer shall provide the Service Provider with:
– Bank account details (RIB);
– A SEPA direct debit mandate, duly completed and signed.
– Any direct debit that is rejected, resulting in a rejection fee for the Service Provider, will be charged to the Customer with a penalty of +10% of this cost.
4.3.3. Late payments: in the event of late payment by the Client, a penalty calculated on the basis of an interest rate equal to three (3) times the legal interest rate plus 10 percentage points on the date of issue of the invoice may be applied by the Service Provider to the amount of the overdue invoice. In addition to this penalty, the Customer shall be liable, automatically and without prior notice, for a lump sum compensation for recovery costs in the amount of forty (40) euros. Pursuant to Article 1344 of the Civil Code, the simple expiry of the payment deadline shall constitute formal notice. The Service Provider is exempt from any reminder and the Customer responsible for the late payment is liable for damages.
4.3.4. Default of payment: when one or more invoices are not paid by the due date, the Service Provider will send reminders to inform the customer, then, in the event of non-payment, will send a formal notice by letter with acknowledgment of receipt.
If no payment is received within fifteen (15) days of the formal notice, the Service Provider shall terminate the contract and invoice all remaining monthly or annual payments due in accordance with the term of the contract signed at the time of signing.
4.4. Subscription period: The subscription is taken out for the period specified in the Quote, which serves as the contract, and is automatically renewed for the same period, notwithstanding Article 1214 of the Civil Code.
The Customer is therefore liable for all annual/monthly payments to which they committed when signing the Quote.
In order for the subscription not to be renewed by tacit agreement, the Customer must request this from the Service Provider by sending a letter by post with acknowledgment of receipt no later than thirty (30) days before the end date of the last subscription period.
Example: in the case of a monthly subscription with a 3-year commitment, where the first day of the subscription began on January 1, 2019, the Customer must send their letter of non-renewal no later than December 1, 2021, as evidenced by the postmark.
4.5. Return and restitution of Equipment within the framework of equipment rental
– Return within the framework of equipment rental: no return of Equipment will be accepted without the express prior agreement of the Service Provider, who must be informed of the Customer’s request for return within a maximum of three (3) working days from delivery. This complaint must be made exclusively in writing, dated and stamped, to the Service Provider, indicating the information necessary for processing the file. In the event of equipment rental, renewal of the contract implies renewal of the Equipment provided upon signature of these Terms and Conditions.
– Return in the context of equipment rental: upon termination of the subscription, the Equipment shall be returned and inspected by the Service Provider, who shall then release the Customer from liability. The Customer is informed that the Service Provider may charge a fee for any Equipment not returned at the time of termination of this Agreement. The amount charged will be calculated based on the value of the Equipment indicated on the Quote multiplied by the number of items of Equipment missing.
4.6. Delivery of the Solution: subject to the provisions of Article 3.2.1 concerning the unavailability of the Equipment, the Service Provider undertakes to install and provide access to the Solution within a maximum period of one (1) month after receipt of all the information necessary for the configuration of the Back Office provided by the Customer. Failing this, and except in cases of force majeure or non-compliance with the installation conditions by the Customer, the Customer may, in the event of a delay exceeding fifteen (15) working days from the scheduled date of performance of the service and within sixty (60) working days from that date, terminate the contract by sending a registered letter with acknowledgment of receipt.
4.7 Price revision
At the beginning of each period, the Company may revise the amount of the annual fee.
This revision shall correspond at least to the variation in the SYNTEC index between the start date of the period of year N-1 and the start date of the period of year N, according to the following formula: P1= P0 x (S1/S0)
Where
P0 = Applicable price
P1 = Revised price
S0 = SYNTEC index in force on the start date of the period of year N-1. The reference index applicable on the effective date is that indicated on the order form.
S1= SYNTEC index applicable on the start date of the period of year N.
Similarly, the price of the services may change in the event of a significant change in the Service Provider’s costs that makes the performance of the contract significantly more expensive, or the creation of new tax and parafiscal charges that the Service Provider would be required to pay.
In this case, the price change will be notified to the Customer no later than one month before the change, and the Customer will have the option to terminate the contract in the month preceding the change.
Article 5. Customer obligations
5.1 The Customer shall refrain from:
– integrating the Solution into its own services or into another domain, displaying it on an iframe page, allowing a third party to access or use it.
– copying, modifying, adapting or creating derivative works from the Solution made available to them or attempting to discover or gain access to the source code of the Solution or modifying, decrypting, extracting, disassembling or decompiling the Solution except to the extent that the Customer is authorized to do so under applicable law and regulations;
– attempt to interfere with the normal operation of the Solution and, in particular, attempt to circumvent or bypass the operation of security, control or other protection mechanisms, or modify, hack or interrupt the Solution or any website, computer system, server, routing system or mechanism or other mechanism or tool connected to the Internet;
– cause a robot to act or allow a robot or other automated system or process to act on or interact with the Solution;
– hide, modify or remove any copyright notice, trademark or other distinctive signs on the Solution or visible during its operation or use; or allow a third party to do so.
5.2. The Customer acknowledges and agrees that:
– the Service Provider’s obligation to make the Solution available is conditional upon the Customer’s obligation to provide, upon first request, the objectively and reasonably necessary means of assistance, as well as the information and decisions objectively and reasonably required by the Service Provider;
– for the Solution to function, the Customer must meet the following technical requirements: have a stable internet connection with a minimum upload speed of 20 Mbit/s and a minimum download speed of 20 Mbit/s.
The configuration requires that all fields designated as mandatory be completed. Failing this, the Service Provider will not be able to perform the service and cannot be held liable for this. In this case, the Customer will not be entitled to a refund of the sums paid;
– at least one member of its staff is required to attend a training session on the use of the Solution;
– only members of its staff who are properly trained in the use of the Solution may use technical support, otherwise they will be billed;
– even if the configuration support service is subscribed to, the Customer remains responsible for the volume, type, and quality of the data entered into the Solution, without being able to claim any guarantee from the Service Provider;
– The Customer is solely responsible for the security of login details. They undertake to keep user logins and associated passwords separate.
5.3 In the event of a threat to the security of the Solution, or the risk of its harmful use (whether such threat is real or perceived), or when necessary to comply with an obligation arising from applicable legal or regulatory provisions, or an obligation imposed by an Internet service provider, the Company may temporarily suspend (in whole or in part) access to the Solution in order to carry out maintenance and/or upgrades (whether or not such tasks have been planned).
5.4. Obligation to retain Equipment in the event of equipment rental: the Customer must take the same care of the Equipment made available to it by the Service Provider as it would take of its own property in accordance with the provisions of the Civil Code.
Article 6. Guarantee in the event of violation of third-party rights
The Service Provider declares that it has all the rights necessary to grant the Customer the rights defined in the Contract.
The Service Provider shall indemnify the Customer against any allegations of copyright infringement relating to the Solution and shall compensate the Customer for any damages and interest that the Customer may be ordered to pay by a final and binding court decision based on such an allegation, provided that the Customer:
- has notified the Service Provider in writing within 5 days of the existence of such allegation, and;
- has allowed the Service Provider to have sole control of the defense and any negotiations with the third party concerned with a view to a settlement, and has cooperated with the Company for this purpose.
If any element of the Solution is subject to such an allegation, or if the Service Provider believes that it may be subject to such an allegation, the Customer agrees that the Service Provider, at its option and expense, shall obtain for the Customer the right to continue using it or shall replace or modify it so as to prevent the infringement. If none of these measures can, in the Service Provider’s sole discretion, be reasonably implemented within a reasonable period of time, the Service Provider may terminate the Contract automatically after giving notice by registered letter with acknowledgment of receipt.
The Service Provider shall not be liable to the Customer where the claim relates to the modification by the Customer or any third party of any element of the Solution, its combination, its implementation or its use with hardware, software or data not provided by the Service Provider or in an environment other than the operating environment specified by the Service Provider, or its use in conditions other than those defined in the Contract.
Article 7. Responsibilities of the parties
7.1. Responsibility of the Service Provider
7.1.1. Limitation of the Service Provider’s liability:
The Service Provider shall not be held liable in the event of:
– Force majeure: If the performance of the General Terms and Conditions of Service, or of any obligation incumbent on the Service Provider hereunder, is prevented, limited or disrupted due to a Force Majeure Event, then the Service Provider, subject to prompt notification to the Customer, shall be excused from the performance of its obligations to the extent of such prevention, limitation or disruption, and the Customer shall be similarly exempt from performing its obligations to the extent that the obligations of that Party relate to the performance thus prevented, limited or disrupted, provided that the Party thus affected makes its best efforts to avoid or mitigate such causes of non-performance and that both Parties proceed promptly once such causes have ceased or been removed. The Party affected by a Force Majeure Event shall keep the other Party regularly informed by email of the prognosis for the removal or restoration of the Force Majeure Event. If the effects of a Force Majeure Event last for more than ninety (90) consecutive days from the date of notification of the Force Majeure Event to the other Party, the subscription may be terminated automatically at the request of either Party, without any right to compensation on either side.
– Damage to the Solution by the Customer;
– Misuse of the Solution, Back Office, or Equipment by the Customer, including through fault, negligence, omission, or failure on their part, or failure to comply with training and/or advice provided;
– Disclosure or unlawful use of the password provided to the Customer in confidence;
– Fault, negligence or omission on the part of a third party over whom the Service Provider has no control, management or supervision;
– Request for temporary or permanent interruption of the Solution by a competent administrative or judicial authority, or notification by a third party, within the meaning of Article 6 of the Law on Confidence in the Digital Economy;
– Partial or total destruction of information transmitted or stored as a result of errors directly or indirectly attributable to the Customer.
– Non-use of the Solution by the Customer,
– Recording of data that is incorrect or does not comply with the legislation in force
– Failure to validate data pre-entered into the Solution
– absence or non-synchronization of data,
The Service Provider cannot be held liable for the application of the HACCP method by the Customer in its establishment. The Customer is solely responsible for implementing a health control plan in accordance with current regulations and good hygiene practices. The Octopus HACCP Solution cannot replace the implementation of a health control plan that complies with regulations. As such, the Service Provider assumes no obligation to verify or check the entries made by the Customer, who remains solely liable for any damage caused to third parties by breaches of their safety and hygiene obligations. The Customer is also solely liable for any administrative or criminal penalties incurred as a result of its failure to comply with its safety and hygiene obligations. The Customer indemnifies the Service Provider against any claims based on the Customer’s breach of its regulatory obligations.
7.1.2. Limitation of liability for damages
– Exclusion of indirect damages: Compensation payable by the Service Provider in the event of failure of the Solution resulting from a fault on the part of the Service Provider shall correspond to the direct, personal and certain damage related to the failure in question, with the express exclusion of any indirect damage such as, in particular, commercial damage, damage to brand image, any commercial disruption, loss of profits or customers.
– Direct causality: Insofar as the proper functioning of new equipment, software or the result of an IT service does not depend solely on the quality of the Solution Equipment installed, but also on factors beyond the Service Provider’s control, such as, but not limited to, the original installation, the choice of Internet Service Provider (ISP), the working methods and qualifications of the user, the Service Provider shall only be liable for its best efforts and not for results. The Service Provider shall not be held liable for any direct or indirect consequences resulting from the malfunction or non-functioning of the Customer’s equipment, including any loss of data, non-compliance, incompatibility, malfunction or damage, whether or not resulting from its intervention. Under no circumstances, and regardless of the service requested, shall the Service Provider be held liable for any damage to the Customer’s equipment and/or total or partial loss of the Customer’s computer data, for any reason whatsoever. The functioning of the Solution developed by the Service Provider depends on access to a reliable internet network: under no circumstances shall the Service Provider be held liable in the event of a temporary, regular or permanent failure of the internet access provided by the ISP. The Service Provider reserves the right not to provide the Solution if, in its reasonable opinion, the working conditions at the Customer’s premises are likely to endanger its safety or compromise the integrity of the Equipment. The Service Provider undertakes to carry out the service ordered by the Customer in accordance with the rules of good practice and in accordance with the subscription offer. Any service not provided for in the subscription offer or any modification to the initial commitment made at the Client’s request within fourteen (14) working days of notification of the subscription offer shall be assessed at the Service Provider’s discretion; failure to respond within seven (7) working days shall be deemed a refusal. The Service Provider is not required to retain any information concerning the Customer and/or the service provided.
The Customer acknowledges that the Service Provider’s essential obligation is the license granted for the use of the Solution. The Service Provider’s liability is therefore excluded or limited to the extent that it does not render this essential obligation meaningless. The Customer shall not be liable for any alleged breaches that are not strictly related to the subject matter of this contract.
– Limitation of damages. In any event, the amount of damages that may be charged to the Service Provider, if its liability is established, shall be limited to a maximum of three (3) times the amount actually paid by the Customer to the Service Provider for the period in question or invoiced to the Customer by the Service Provider, or three (3) times the amount corresponding to the price of the service for the part of the Solution for which the Service Provider has been held liable.
The lower of these amounts shall be taken into consideration.
The Customer acknowledges that no provision of these Terms and Conditions shall release it from its obligation to pay the amounts due to the Service Provider for the services provided.
7.2. Customer Responsibility
7.2.1. Creation of the Back Office: The Service Provider reserves the right to request supporting documents from the Customer to ensure the accuracy of the information. The Customer is solely responsible for the passwords required to use the Solution. The Service Provider cannot be held liable for any illegal or fraudulent use of passwords chosen and used by the Customer or generated by the Customer itself. The provision of passwords is considered confidential. Any suspicion of disclosure, whether intentional or not, of the passwords provided is the sole responsibility of the Customer, to the exclusion of the Service Provider. The Customer shall bear sole responsibility for any consequences of the Solution not functioning properly as a result of any use by members of its staff or by any person to whom the Customer has provided its password(s). Similarly, the Customer shall bear the consequences of the loss of the aforementioned password(s). The Customer undertakes to inform the Service Provider within eight (8) days of any changes to its situation, and within forty-eight (48) hours of any theft of passwords.
7.2.2 Back office management: once the Service Provider has delivered the service, the Customer is responsible for all content and data integrated, added or modified on the back office. The Service Provider declines all responsibility for the content, text and images displayed on the software.
7.2.3. Withdrawal of Equipment: the Service Provider may request, if the Customer does not take delivery of the Equipment without a legitimate reason, that the General Terms and Conditions of Service be terminated. If the Customer fails to withdraw the Equipment within the specified time limit, and except in cases of force majeure, the Service Provider reserves the right to cancel the order for the Equipment or to charge storage costs without reminder or formal notice.
7.2.4. Compliance with applicable laws and regulations: The Customer declares that it fully accepts all legal obligations arising from the administration of the Solution, and that the Service Provider cannot be held liable or pursued in this regard for any reason whatsoever, in particular in the event of a violation of laws or regulations applicable to the Solution by the Customer. Failure by the Customer to comply with the above points and the points referred to in the special conditions, and in particular any activity likely to give rise to civil and/or criminal liability, shall entitle the Service Provider to immediately and without prior notice terminate the supply of the Solution to the Customer and to request the immediate and automatic termination of these General Terms and Conditions of Service, without prejudice to any damages that the
Service Provider may claim. The termination of these General Terms and Conditions of Service shall result in the return of the Equipment in the event of rental in accordance with the provisions of Article 3.2.5.
Return of Equipment: The Customer undertakes to pay directly to the author of the complaint any sum that the latter may claim from the Service Provider. In addition, the Customer undertakes to intervene at the Service Provider’s request in any proceedings brought against the latter and to indemnify the Service Provider against any judgments that may be rendered against it in this connection. Consequently, the Customer undertakes to take personal responsibility for any claim and/or proceedings of any form, subject matter or nature brought against the Service Provider and relating to the Customer’s obligations under these General Terms and Conditions of Service.
Article 8. Legal warranty
In addition to the contractual warranty mentioned in Article 3.2.1., all Equipment sold to the Customer by the Service Provider in accordance with these General Terms and Conditions of Service is covered by the legal warranty against hidden defects provided for in Articles 1641 to 1649 of the Civil Code.
Article 9. Insurance
9.1. Insurance conditions: the Equipment made available to the Customer in the event of equipment rental is insured within the limits of the Service Provider’s insurance policy. All Equipment made available to the Customer is thus covered, with the exception of connectors (in particular chargers) after they have passed the tests and have been duly accepted. The Customer is guaranteed payment of the costs directly and exclusively incurred for the physical repair or replacement of damaged, destroyed or stolen Equipment. In this regard, it is specified that the guarantee shall only apply if the theft or attempted theft was committed in one of the following circumstances:
– Theft without breaking and entering or assault during opening hours;
– Theft with breaking and entering or assault during business hours;
– Theft with breaking and entering and assault during non-business hours;
– Theft with breaking and entering and/or climbing onto the premises.
The Equipment made available to the Customer will be replaced or repaired under the following cumulative conditions:
– within the limits of the Service Provider’s insurance policy;
– after validation by the Service Provider that the conditions for compensation provided for in the insurance policy have been met. Furthermore, the Customer is responsible for returning all Equipment and guarantees its safety, unless the Customer reports theft involving verbal or physical assault.
9.2. Excess in the event of equipment rental: An excess of eighty (80) euros per printer and per claim will be applied by the Service Provider in the event of equipment rental on the EPSON LW600P printer. An excess of three hundred (300) euros per printer and per claim will be applied by the Service Provider in the event of equipment rental on the BROTHER printer. An excess of one hundred and fifty (150) euros per tablet and per claim will be applied in the event of equipment rental by the Service Provider on Samsung WIFI tablet references. An excess of two hundred and fifty (250) euros per tablet and per claim will be applied in the event of equipment rental by the Service Provider on Samsung 4G tablet references. An excess of one hundred and nineteen (130) euros per HUB and per claim will be applied in the event of HUB rental by the Service Provider. An excess of fifty-nine (59) euros per wireless temperature recorder and per claim will be applied in the event of rental of a temperature recorder by the Service Provider. The Customer must pay the excess at the time of the claim.
Article 10. Termination
Either Party may terminate the Contract by giving prior written notice to the other Party by registered letter with acknowledgment of receipt if the other Party seriously and/or repeatedly breaches a material term of the Contract and fails to remedy such breach within 90 days of being given written notice to do so.
As a reminder, and as mentioned in Article 4.4, the subscription is taken out for the term specified in the Quote, which serves as the contract, and is automatically renewed for the same term, notwithstanding Article 1214 of the Civil Code. The Customer is therefore liable for all monthly/annual payments to which they committed when signing the Quote.
In the event of non-payment of invoices within the terms and conditions stipulated in Article 4.3.4. herein, the Service Provider may terminate the Contract and invoice the full amount due under the current contract.
Article 11. Confidentiality
11.1 Without prejudice to the provisions of Article 11.3 and Article 14 below, the Contract is strictly confidential between the Parties. All documents, information, data and elements (in any form and by any means of storage or transmission) communicated by one Party to the other during the negotiation, conclusion or performance of the Contract may not be disclosed to third parties.
11.2 The Client may not sublicense, assign or transfer, in any manner whatsoever, in whole or in part, any right or obligation arising from the Contract to any natural or legal person without the prior written consent of the Company.
11.3: Advertising: in its commercial and digital documents, the Service Provider may cite the Client in its references. The Service Provider shall be mentioned on the final deliverables. These deliverables may include a hyperlink to the Company’s website. To this end, during the term of the contract and for up to one year thereafter, the Client agrees that the Service Provider may use its logo or other distinctive signs in its communications.
Article 12. Personal data
The Client acknowledges and accepts that personal data within the meaning of the General Data Protection Regulation ((EU) 2016/679 “GDPR”) may be collected, stored, processed, and used to enable the use and improvement of the Solution, as well as for commercial and communication purposes.
In accordance with the GDPR and Law No. 78-17 of January 6, 1978, known as the “Data Protection Act,” the Customer is responsible for its own legal declarations to its social partners and to the CNIL or similar national bodies in countries other than France.
Article 13. Maintenance and support
13.1 Maintenance
The Company shall provide both corrective and upgrade maintenance for the Software.
13.1.1 Corrective maintenance covers the correction of malfunctions in the Software attributable to the Software or the Service Provider. Requests for corrective maintenance shall be made to the Company’s technical support service.
Any request for corrections specific to the Customer’s use covering areas that are not strictly functional within the scope of the tool must be specified before it is put into production, failing which the provision of the related service will be subject to separate invoicing at the rate in force on the date of provision of the service.
13.1.2 Upgraded maintenance covers improvements and upgrades to the software. It is included in the annual fee.
However, when a Software upgrade requires the Service Provider to incur specific costs for the Customer, the Customer may be billed for the amount of these specific costs.
13.2 Technical assistance
The Service Provider shall provide the Customer with a technical assistance service.
The technical assistance service is reserved for technical difficulties not covered in the software documentation or during training sessions and for reporting anomalies.
The technical assistance service is only available to members of the Customer’s staff who have received the appropriate training.
Any inappropriate use of technical assistance may result in billing based on the rates indicated on the website in the corresponding section.
Similarly, any inappropriate use of technical assistance by a member of the Customer’s staff who has been properly trained on subjects covered during training sessions or in the Software documentation may result in billing for the call on the basis mentioned above.
Article 14. Storage and access to data entered
The data entered by the Customer in connection with its use of the Solution shall be kept at its disposal by the Service Provider for five (5) years from the date of entry.
This period shall remain unchanged, even in the event of non-renewal or termination of the subscription to the Solution. However, in this case, although the Customer will still have access to data entered in the past, they will no longer be able to benefit from the features associated with the Solution. The Customer may export or print their data from the Back Office.
Data that is not personal in nature within the meaning of Article 12 above may be collected, used, stored or transferred by the Service Provider for statistical or commercial purposes.
Article 15. Miscellaneous provisions
15.1. Nullity: The nullity of a contractual clause shall not entail the nullity of the General Terms and Conditions of Service, with the exception of a decisive clause that led one of the Parties to enter into the contract.
The Customer is deemed to have accepted without reservation all of the provisions of these General Terms and Conditions of Service.
15.2. Tolerance: The fact that the Service Provider does not invoke any of these General Terms and Conditions at any time and/or tolerates a breach by the other Party of any of the clauses referred to in these General Terms and Conditions shall not be interpreted as a waiver by the Service Provider of its right to invoke any of said conditions at a later date.
15.3. Severability: The invalidity of any clause of the General Terms and Conditions of Service entered into with the Service Provider, in particular pursuant to a law, regulation or following a decision by a court of competent jurisdiction that has become final, shall not invalidate the other clauses of the General Terms and Conditions of Service, which shall remain in full force and effect. In this case, the Parties shall, to the extent possible, replace the invalid provision with a valid provision that corresponds to the spirit and purpose of the contractual terms and conditions.
Article 16. Dispute resolution
16.1. Complaints: Any complaints regarding the Solution shall be addressed to: Octopus Digital Kitchen – 2 rue de la Roquette, passage du cheval blanc cour de mars.
16.2. Mediation: If the complaint made to customer service is unsuccessful, the customer may submit the dispute between them and the Service Provider to the mediator, who will attempt, in complete independence and impartiality, to bring the parties together to reach an amicable solution. The Customer may refer the matter to the Mediator of the Federation of E-Commerce and Distance Selling: Bernard SIOUFFI – 60 rue de la Boétie – 75008 Paris.
16.3. Conciliation: Prior to any legal action, with the exception of actions taken as a precautionary measure, the Parties agree to seek, within a reasonable time frame, an amicable solution to the dispute between them.
16.4. Applicable law and jurisdiction: The contract is governed by French law. If no conciliation is reached within fifteen (15) working days of its occurrence, the dispute shall be brought by the most diligent Party before the courts of Paris, which shall have sole jurisdiction to hear any dispute relating to the interpretation, validity, performance and/or termination of these General Terms and Conditions of Service, notwithstanding the plurality of defendants or third-party proceedings, even for emergency or protective proceedings, summary proceedings or proceedings by way of application.