Ce site est édité par la société SEPAGE SAS au capital de 162.30€, inscrite au registre du commerce et des sociétés de Paris sous le numéro 384 748 315.
Siège social : 5 rue Paul Bert, 75011 Paris.
N° TVA intracommunautaire FR90790742571.
Téléphone : 01 84 17 37 80.
Enregistrée à Paris le 29 janvier 2013, sous l'immatriculation 790 742 571, Sépage est spécialisée dans le secteur d'activité de la programmation informatique. Le directeur de la publication est Monsieur Milan Stankovic en sa qualité de Président.
Hébergement : ce site est hébergé par OVH, SAS au capital de 10 000 000 €, inscrite au RCS de Lille Métropole sous le numéro 424 761 419 00045, dont le siège social est 2 rue Kellermann - 59100 Roubaix - France.
Tous droits réservés. 2014 SEPAGE SAS.
GENERAL TERMS AND CONDITIONS OF SERVICE
ARTICLE 1. PURPOSE AND SCOPE
1.1. These general terms and conditions of service (the « General Terms and Conditions ») apply to any and all agreements, arrangements or understandings between the company SEPAGE SAS (the « Company ») and any person wishing to benefit from the services proposed by the Company (the « Client ») (hereinafter individually referred to as a “Party“ and collectively the “Parties”), unless otherwise expressly agreed in writing between the Parties.
1.2. The General Terms and Conditions apply to any quote, order form, order confirmation or similar document issued by the Company and shall at all times prevail over any other terms and conditions whatsoever, except those expressly agreed between the Parties in a written document and executed by their duly authorised representatives. Thus, any terms and conditions put forth by the Client which are contrary to the General Terms and Conditions shall be unenforceable against the Company, without the latter’s prior written express consent.
1.3. Any order sent to the Company or acceptance of the offer proposed by the Company, as well as any payment of an invoice issued by the latter implies the Client’s full and unconditional acceptance of the General Terms and Conditions.
ARTICLE 2. SPECIFIC TERMS AND CONDITIONS AND CONTRACT
2.1. Any quote or offer issued by the Company shall be valid for a period of thirty (30) days as from its date of issue, unless indication to the contrary, knowing that the Client’s acceptance is deemed acceptance of all the specifications relating to the features of the services set out in such quote or offer (including, without limitation, technical, quality and performance-related features), and of the performance and delivery of the services as set out in the Specific Terms and Conditions (as defined below).
2.2. The Company shall only be bound by the orders received from the Client once expressly agreed in writing by the Company’s duly authorised representatives.
2.3. The Services proposed by the Company shall lead to the preparation of a quote or a prior offer which shall constitute the specific terms and conditions modifying or supplementing the General Terms and Conditions (the “Specific Terms and Conditions”). In the event of discrepancy or conflict between the Specific Terms and Conditions and the General Terms and Conditions, the Specific Terms and Conditions shall prevail in respect of its subject matter and shall apply in deviation to the clauses with the same subject matter contained in the General Terms and Conditions.
2.4. The contract entered into by and between the Company and the Client is thus comprised of the Specific Terms and Conditions and the General Terms and Conditions (the « Contract »).
ARTICLE 3. SERVICES
3.1. The services proposed by the Company are those specified in the Specific Terms and Conditions, as well as on the Company’s website (“the Services”). Unless otherwise indicated in the Specific Terms and Conditions, the Services are composed of the Main Service and Facilitating Services (as defined below). The main Service proposed by the Company (the “Main Service”) is composed of the User Data Intelligence Platform which enables the Client to obtain, for a given Internet user, a detailed user profile, list of recommendations for tailored travel offers (the “Recommendations”) as well as to regroup the users in user clusters. The Recommendations may refer to commercial offers proposed by the Client, and may contain other client data and client media, previously transmitted by the Client to the Company and used in particular when displaying the offers of the Client or when calculating the Recommendations (the “Client Data”). In addition to the Main Service, the Company may provide any other data transformation, software development, consulting and other services as defined in the Specific Terms and Conditions (the “Facilitating Services”).
3.2. The technical, operational, financial terms and conditions of the Services proposed by the Company, as well as any other instructions relating to the use installation and delivery of the Service, associated documents or other deliverables shall be specified in the Specific Terms and Conditions.
3.3. The Company reserves the right to periodically change the Services, in particular in order to comply with the applicable laws and regulations or otherwise when these changes do not affect the usual quality of the proposed Services.
3.4. To ensure the smooth running of the Services, the Client shall provide to the Company or to the other entities concerned by the Service, as the case may be, any and all relevant information on the sale offers of the Client, in a format defined by the Company, and this before the state date of use of the Services, as specified in the Specific Terms and Conditions (the “Start Date”).
3.5. The Services shall be made available to the Client at the Start Date. Any delay on the part of the Client, in taking charge of the Services or in making available the Client’s sale offers, Client Data or other items necessary for the use, installation and delivery of the Services, shall not imply a change in the Start Date and shall not give rise to a differed or partial invoicing by the Company.
3.6. The technical infrastructure implemented by the Company for the delivery of the Services is not specifically adapted for a particular Client but commonly used and shared by all of its Clients.
ARTICLE 4. FINANCIAL TERMS AND CONDITIONS
4.1. The price of the Services is stated in the Specific Terms and Conditions. This price excludes duties and taxes which may be applicable, and may vary depending on the jurisdiction in which the Services are deemed as delivered.
4.2. Unless otherwise indicated in the Specific Terms and Conditions, the Clients shall pay the invoices issued by the Company within thirty (30) days as from their date of issue. The payment shall be made by direct debit, check or electronic transfer as per the payment instructions specified on the relevant invoice. The Company may issue, at its discretion, electronic invoices.
4.3. Any partial or total non-payment of the invoices issued by the Company at their relevant maturity date shall automatically give rise to the payment by the Client of a late payment interest at a rate of 4% over the legal interest rate, beginning on the first day after the invoice maturity date and until all unpaid amounts have been fully repaid, whether or not before or after a corresponding court decision or order for payment. The Client shall pay the late payment interest concomitantly with any other amounts unpaid and due to the Company.
4.4. In the event of payment default by the Client, the Company shall be entitled to suspend and/nor delay the delivery of the Services. The Company shall also be authorised to set off its claims against the Client against any amounts due (if any) to the Client, without the need to obtain a court judgment for such settlement.
4.5. When the price of the Services is defined on the basis of the number of unique visitors per month of use as exposed by the Client in the Recommendations resulting from the Services, the Client shall enable the Company (i) to place a “cookie” in the browsers of the internet users- users of the Client’s sites or applications, as well as (ii) follow up users’ recurrent visits, in order to calculate the number of unique visitors. The unique nature of a visitor is appreciated over a period of one calendar month from the first day to the last day of the month, knowing that the counter clearing takes place at midnight on the first day of each month.
ARTICLE 5. CONDITIONS OF ACCESS TO THE SERVICE
5.1. Unless otherwise specified in the Specific Terms and Conditions, any service provision is made in accordance with the EXW Incoterms at the main offices of the Company.
5.3. To the extent necessary in order to access the Services, the Client shall obtain from the Company a username and a password, an APIC key or a custom script (the “Means of Access”). The Client shall in no event give the Means of Access to any third parties (including its subsidiaries or companies belonging to the same group of companies). Being the sole authorized entity to use the Means of Access in relation to the Services proposed by the Company, the Client remains fully responsible for any use of the Means of Access.
5.4. The Client shall immediately inform the Company of any unauthorised access to the Services or Means of Access.
5.5. The Recommendations generated as a result of the Services provided by the Company are intended for the sole use of the Client within the limits defined by the Specific Terms and Conditions, in particular concerning the indicated websites. The Client shall not have a third party (including its subsidiaries or companies belonging to the same group of companies) benefit from the Services, nor use the Services or Recommendations for other purposes than those defined in the Specific Terms and Conditions.
5.6. The Client shall not use the Recommendations nor give access to the Services to any third parties (including its subsidiaries or companies belonging to the same group of companies) in order to propose, directly or indirectly, on its own or with other persons, services which will be identical or similar to those Services delivered to the Client by the Company.
ARTICLE 6. TRANSFER OF THE RISKS
The delivery of the Services (as well as Recommendations and other deliverables, if any) shall entail the transfer of all the risks regarding the Services (as well as Recommendations and other deliverables, if any), to the Client (including, without limitation, its use, installation, maintenance, functioning or other features).
ARTICLE 7. CLAIMS
7.1. The Services (as well as the associated Recommendations and deliverables, if any) shall be checked by the Client upon its delivery.
7.2. Any claim from the Client shall be notified to the Company in writing with sufficient details within seven (7) business days after delivery of the Services concerned, failing which the Client shall be deemed to have waived making such any and all claims regarding such Services (as well as associated Recommendations and deliverables, if any) against the Company.
7.3. The Client shall give the Company reasonable time to examine the claim. In this respect, the Company shall have the right to inspect or arrange for the inspection of the Client’s premises, at any time during the typical business hours.
7.4. If it appears that the delivery of the Services proved defective for reasons attributable to the Company, and the latter has been informed of this under the conditions of this article, the warranties and liabilities provided by Article 8 shall apply.
7.5. Any claims for reasons not attributable to the Company shall give rise to an invoicing based on the time spent by the Company’s personnel to analyse the defect or imperfection, at the hourly rates then applicable by the Company. Any corrective action initiated by the Client, without the Company’s prior written consent shall not give rise to the application of the warranties and liabilities provided by Article 8.
ARTICLE 8. WARRANTIES AND LIABILITIES
8.1. The Company’s total and overall liability towards the Clients or any third party shall be limited to the performance of the Services in accordance with the General Terms and Conditions and the Specific Terms and Conditions.
8.2. The Company shall make no express or implied warranty whatsoever, including without limitation the implied warranties of merchantability or fitness of the Services (as well as associated Recommendations or deliverables, if any) for a particular purpose, quiet enjoyment and non-infringement.
8.3. In the event of a breach of the abovementioned warranty, the only recourse the Clients will have shall be one of the following, at the Company’s discretion and with no additional expense for the Client (i) provide additional Services, (ii) remedy the imperfections or defects detected on the Services, or (iii) reimburse to the Client the portion of the Services subject of the claim. The Company’s operations as part of the performance of the abovementioned warranties shall only take place at the Company’s premises or at the Client’s premises, upon Company’s discretion.
8.4. The Company shall assume no liability for any lost profits, indirect, special, consequential damages or any other loss (including without limitation: lost opportunity, lost reputation, lost time or lost data) or any punitive damages. In any event, the Company’s total cumulative liability arising out of or in connection with the performance of the Services shall not exceed the amounts paid by the Client to the Company during the twelve (12) preceding months, or EUR 10,000, knowing that the higher amount shall apply.
8.5. The Company shall not be liable if the Client did not use the Services (and the associated Recommendations or deliverables, if any) in accordance with the use provided for by the Specific Terms and Conditions, associated documents or in accordance with any other instruction communicated by the Company.
8.6. The Company shall not be held liable for any actions for infringement whatsoever, arising as a result of (i) any use of the Services independently of or in combination with products, services and deliverables provided or developed by the Company, or (ii) compliance of the Services (and associated deliverables) with the information and specifications provided by the Client.
8.7. In the event of use of « cookies » or other regulated computer devices, the Client undertakes to inform its users in accordance with the regulations in force and ensure observance of the regulations and in particular the standards provided for by Articles 38 of the Act n°78-17 of 6 January 1978 relating to information technology, data files and civil liberties.
ARTICLE 9. INTELLECTUAL PROPERTY AND LICENCE
9.1. The Client acknowledges that the Company shall remain the sole owner of all the intellectual property rights related to the Main Services, Recommendations and associated deliverables, whether or not they are likely to be protected by copyright or by any other intellectual or industrial ownership. The Client undertakes not to claim any of the abovementioned intellectual property rights.
9.2. The Company shall remain the exclusive owner of the Recommendations, as well as any other deliverable stemming from the Main Services. The Client is under the obligation to use them as part of the authorised uses in the Specific Terms and Conditions (in particular concerning the website operation or Web application made by the Client). However, the Client is not authorised to keep, copy, reproduce or otherwise retain the Recommendations and associated deliverables in a back-up device (for instance data base or digital file) and shall refrain in particular from reusing them once delivered for any other purpose not directly related to the unique visitor concerned. The Recommendations are intended for the exclusive use of the Client, in particular to propose a tailor offer to the unique visitor concerned, within the limitations defined by the Specific Terms and Conditions. The Client shall refrain from using in any way whatsoever, the abovementioned intellectual property rights for any other purpose than that specified in the Specific Terms and Conditions. The Client shall remain the exclusive owner of the deliverables stemming exclusively from the Facilitating Services, such as data, data transformations, reports, software source and binary code, and software parameterizations. A deliverable or a part of a deliverable shall be considered as stemming exclusively from the Facilitating Services to the extent that both of the following conditions are cumulatively met: (1) it can be used without invoking the Main Services, and (2) it is a result of the Facilitating Services played by the Client on a man-day basis.
9.3 The Client shall remain the exclusive owner and/or data controller of the Client Data. The Company may only use them as part of the Services provided to the Client, in accordance with the safety and confidentiality instructions to be provided by the Client to the Company with respect to the processing and treatment of such Client Data. The Client shall amend the Client Data at any time or request that they be removed from the tools or platforms operated by the Company with a view to providing the agreed Services.
9.4. The Client acknowledges that the Services, the associated Recommendations and deliverables may contain trade secrets of the Company. In order to protect those trade secrets, the Client undertakes not to disassemble, decompile nor reverse engineer the Services, Recommendations and deliverables provided to it by the Company nor authorize third parties to do so.
9.5. Subject to the terms and conditions herein, and to the extent necessary to use the Services, the Company grants to the Client a limited, revocable and non-exclusive license (without the right to grant sub-licenses), to install, copy and use the software implemented for performing the Services (the “Software”) solely within the limits necessary for use of the Services by the Client on the sites or applications defined in the Specific Terms and Conditions. The Client shall refrain from making and from allowing any third parties to make any of the following actions: (i) copy, adapt, translate or create a work derivated from the Software, (ii) decompile, disassemble, or reverse engineer the Software, or attempt, in any other way whatsoever, to discover the source code, unless the applicable laws prohibits some of these limitations, (iii) lease, sub-license, sell, assign or transfer in any other way rights on the Software or Service, (iv) remove any notice or label relating to any other right of ownership, which is present on the Software or incorporated in any way whatsoever by the Service; use, download to the server, transmit or introduce any item, software or program which interferes or attempts to interfere with the smooth running of the Services or the Software.
ARTICLE 10. FORCE MAJEURE
10.1. The Parties are relieved of all of their obligations in the event of delay or shortcoming in relation to the performance of the contract which is attributable to a force majeure event. Are considered as force majeure event (non-exhaustive list) : an order from the government or any other authority, mobilization, war, epidemic, riot, strike, fire, flood, explosion, shortage of raw materials or labour, economic changes, vandalism, exceptional weather conditions or any other events which are beyond the intention or control of either Party and which disrupt the smooth running of its activity.
10.2. The party invoking the force majeure must, as soon as reasonably practicable, keep informed the other party and take all necessary steps to redress the temporary force majeure situation.
10.3. Should the force majeure event subsist for a period exceeding ninety (90) days continuously, the Contract may be terminated by each Party, without the need to pay any compensation whatsoever to the other party.
ARTICLE 11. CONFIDENTIALITY
11.1. All confidential information exchanged by the Company in any form whatsoever (including without limitation the Services and any commercial information, including information on the price provided by the Company) shall not be disclosed nor used by the Client for any other purposes than those specified in the Specific Terms and Conditions for which the information was communicated and/or obtained.
11.2. In addition, the Client undertakes to take all necessary steps to protect the confidentiality of information with its employees and its means (in particular with respect to its computer systems and access to its premises). The Client shall ensure that its managers, employees, agents and any other representatives shall abide by the same confidentiality obligation.
ARTICLE 12. ENTRY INTO FORCE AND TERMINATION OF THE CONTRACT
12.1. The Contract shall come into force as from date of acceptance by the Client and is entered into for an indefinite term.
12.2. The Client or the Company may terminate the Contract at any time subject to one month’s prior notice as from receipt (a) of a termination letter sent by the Client by registered mail with acknowledgment of receipt requested to the following address: SEPAGE SAS, 5 rue paul Bert, 75011 Paris, France, and containing the reference of the Specific Terms and Conditions or other reference allowing for identifying the Contract and the identity of the Client, or (b) of a registered letter with acknowledgment of receipt requested sent by the Company to the Client.
ARTICLE 13. SUSPENSION OF THE SERVICES
13.1. The Company may suspend all or part of the Services as a matter of urgency, without notice or justification, by informing the Client after the fact, in the event of (i) abusive use or (ii) observance of behaviours leading to believe that an unauthorised access has been implemented.
13.2. The Company may suspend, subject to sending a prior notice by all means, without indemnity, all or part of the Services in the event of a breach on the part of the Client of its statutory or contractual obligations such as: exceeding of the limitations fixed in the Specific Terms and Conditions, disruption of the Services having for cause or origin the use of the Services by the Client, or non-payment of a due and payable invoice.
ARTICLE 14. PERSONAL DATA
14.1. The Client is solely liable for the personal data it collects or processes in relation to each Internet user of its web site or Web application. In this respect, the Client undertakes to ensure safe processing of those personal data and more generally compliance with the laws and regulations applicable to their protection. The Client acknowledges that the supply of those data may be necessary for publishing the Recommendations generated by the Services proposed by the Company. To the extent that the Company is led to process personal data on behalf of the Client, as part of the performance of the Contract, such a processing shall strictly be made upon the Client’s instructions and under the Client’s control. In the event of an error in the communication of those personal data, the Company shall not be held liable for the publishing of the Recommendations which thus fail to include the correct information.
14.2. The Client’s personal data are intended for the Company’s use as part of Service provision. The Client’s bank details shall be used by the Company for payment of any amount due and resulting from a Contract entered into by and between the Client and the Company. The Client has a right of access, removal and opposition on its personal data by sending a letter and producing identity proof to the following adress: SEPAGE SAS, 5 rue Paul Bert, 75011 Paris, France.
ARTICLE 15. FINAL PROVISIONS
15.1. Neither Party shall assign all or part of its rights or obligations without the other Party’s prior consent.
15.2. Any failure to apply or delay in applying or partial application of the Contract shall not be deemed to constitute a current or future waiver of the rights contained in such a contract.
15.3. In order to be valid, any notice or communication between the Parties shall be made in writing and sent by registered letter with acknowledgement of receipt requested, or by facsimile (confirmed on the same day by registered letter with acknowledgement of receipt requested), or by hand-delivered letter against receipt to the address and for the attention of the recipient. Those notices shall be deemed to have been received one business day after mailing if sent by facsimile, three business days after mailing if sent by registered letter with acknowledgment of receipt requested, and on the day of the hand-delivery against receipt if sent by hand-delivered letter against receipt.
15.4. In the event that a provision hereof is or becomes unlawful, not valid or not applicable with respect to any applicable law, the other provisions contained in the General Terms and Conditions and all the provisions in application of the legislation of any other jurisdiction shall remain unchanged and unaffected. The Parties shall make their best efforts and take all necessary steps to replace any unlawful, not valid or not applicable provision by any other lawful, valid and applicable provision with equivalent economic scope for the Parties and reflecting the Parties’ original intent, to the extent permitted by law.
ARTICLE 16. GOVERNING LAW
16.1. The relationships between the Parties and any contract arising hereunder shall be governed and construed by French law.
16.2 Any dispute arising between the Parties relating to the application of the Contract shall be referred to the exclusive jurisdiction of the Paris Commercial Court.