Terms and Conditions

These General Terms and Conditions (hereinafter “the Contract “are concluded between the company KAVKOM FRANCEa société par actions simplifiée (simplified joint-stock company) with a share capital of 5,000 euros, registered in the Paris Trade and Companies Register under number 845 151 067, with its head office at 92 rue Jouffroy d’Abbans 75017 Paris (hereinafter referred to as the “Company”). Company “), and the legal entity whose legal information is entered in the Order (hereinafter ” the Customer “).

1. Definitions

• ” Anomaly or Defect ” refers to any deviation of a Service from its technical specifications, inherent to the Service concerned. An Anomaly or Defect is deemed Major when it prevents the Customer from using the Service concerned. Otherwise, he or she is deemed to be a minor.
• ” Application “ means the web application platform published by the Company and made available to the Customer in SaaS (software as a service) mode under this Agreement, integrating certain functionalities listed within the Order, including in particular, where applicable, the Phone System.
• ” Order “ means any Customer order for Subscription and/or Services via any form completed online by the Customer or otherwise agreed in writing by the Parties.
• “Customer Data” means all data and information entered and/or uploaded by the Customer via the Application, including in particular the personal data, where applicable, of its customers and prospective customers, employees, suppliers and other business partners.
• “ Commissioning ”  means the starting point for the provision of Services by the Company under the relevant Order.
• “ Phone System ” means an Internet-based switchboard Service, provided by the Company, enabling, inter alia, the Customer’s authorized users to receive and make telephone calls directly from an Internet browser (with no software to install), a mobile application or a SIP phone.
• “ Prerequisites ” means the technical and operational prerequisites with which the Customer must comply under the Contract, as communicated in writing by the Company to the Customer by any means.
•  ” Services ” means all services that may be provided by the Company pursuant to the Order, including the provision of the Application and any other professional services, in particular installation, training and technical assistance services, provided by the Company.

2. Object

The purpose of this Agreement is to define the terms and conditions under which, on the one hand, the Customer may subscribe to the Services offered by KAVKOM and, on the other hand, KAVKOM will provide the Customer with the Services subscribed to by the Customer.

The provisions of this Agreement constitute the entire agreement between the parties with respect to the subject matter hereof and supersede and cancel all prior representations, negotiations, undertakings, oral or written communications, acceptances and agreements between the parties with respect to the same subject matter. In this respect, the Contract takes precedence over any other document, including the Customer’s general terms and conditions of purchase.

3. Ordering Services

By placing an Order, the Customer acknowledges that he/she is fully aware of the terms and conditions of this Contract and accepts them without reservation, and declares that the Service(s) meet(s) the needs of his/her professional activity.

The Company reserves the right to refuse commissioning if the Customer has not provided all the information and prerequisites required for commissioning. The Customer must also inform the Company immediately and in writing of any change in the information concerning him/her contained in any part of the Service Supply Contract and, in particular, of any change in bank details or billing address.

The Customer acknowledges and accepts that should the Customer decide to subscribe to more than one of the Services offered by the Company, the Company reserves the right to refuse to implement any of the Services for technical and/or commercial reasons, without this constituting grounds for terminating the Contract and the other Services subscribed to.

4. Performance of Services

As part of the Company’s performance of the Services, the Customer is also responsible for :

1. to help define its needs,
2. to provide the Company with all the information and documents required for the performance of the Services (at least identification and other supporting documents depending on the service(s))
3. meet the prerequisites
4. to cooperate fully with the Company in the performance of the Services.

It is understood that compliance with the Company’s commitments and deadlines for Services, including Commissioning, is subject to the Customer’s compliance with its own obligations.

5. Prerequisites

The Customer undertakes to use the Services provided under the Contract in accordance with the Company’s instructions and the Prerequisites. In this respect, customers are reminded that any use of the Application and Phone System requires them to ensure that their telephone/internet operator or network administrator allows them to receive and make telephone calls directly from browsers, mobile applications or SIP phones. Failure to do so will make it impossible for the Customer to use part of the Services. It is also the responsibility of the Customer and its authorized users to ensure, in order to obtain quality Services, that :

• a good-quality Internet connection, with a real speed of 2 Mb/s for reception and 1 Mb/s for transmission;
• the prioritization of voice flows over data flows on its network;
• the use of access equipment that respects the integrity of SIP messages;
• opening flows to ports 443/tls, 5060/udp, 5060/tcp, 5080/tcp, 5080/udp and 20000- 22000/udp for RTP;
• codecs in order of preference: OPUS, Speex, G711 (PCMA, PCMU).

6. Duration – Termination

The Contract is concluded for the minimum subscription period to the Services stipulated in the Order, renewable by tacit agreement for identical subscription periods at the end of the current subscription or commitment period, unless terminated by the Customer via the subscription management interface accessible within the Application or by email sent to the Company within a reasonable period prior to the scheduled renewal date. Any cancellation by the Customer will take effect on the expiry date of the current subscription, and no refund will be made. In the event of termination, all sums due to the Company under the terms of the Contract, in particular in respect of the minimum commitment period specified in the Order, shall become immediately due and payable by the Customer without delay.

Should either party fail to meet any of its essential obligations under the Contract, and fail to remedy such failure within fifteen (15) days of receipt of the formal notice, the Contract may also be terminated ipso jure, without prejudice to the other rights of the non-defaulting party. The Customer’s failure to comply with its payment obligations, as well as its obligations under the ” Customer Guarantees ” listed in article 11.2 below,  constitute breaches of essential obligations within the meaning of these terms and conditions.

Upon termination of the Contract, for whatever reason, the Customer must immediately cease all use of the Application and Services.

7. Right to use the Application

From the date of acceptance of the Order, the Company grants the Customer, for the duration of the applicable Order and on a non-exclusive and non-transferable basis, a right to use the Application for its own needs and in accordance with the scope of use set out in the Order.

Except as expressly provided elsewhere in this Agreement, the Customer may not sublicense, rent, lend or transfer the rights granted to the Application in any way whatsoever to a third party.

8. Access to the Application

Access by the customer or any authorized user is possible from any computer, using the login details chosen by the user concerned. The Company shall not be held liable for any loss or damage resulting from the negligence of the Customer or any authorized user to protect their login credentials and/or Data.

Administration of access to the Application within the customer’s company may also be carried out by one or more administrator(s) appointed by the customer, who will be responsible for distributing user access with differentiated access and functionalities according to the categories of users concerned. The number of users and administrators authorized to access the Application may be limited by the Company.

9. Technical assistance/maintenance

Subject to the provisions of the Order, in the event of an Anomaly encountered by the Customer while using the Application and/or the Services, the Company will make its best efforts, following receipt of a notification from the Customer addressed to the Company’s technical department, to provide a correction or workaround solution within a reasonable period of time.

The Customer acknowledges and accepts that the Company reserves the right to correct any Anomaly by the automatic installation of updates.  The Customer is hereby informed that Minor Anomalies that do not prevent normal use of the Application and/or Services will not necessarily give rise to a correction. Furthermore, the Company will not assume any obligation of maintenance or technical assistance in the event of non-compliance by the Customer with the Company’s instructions and/or the Prerequisites.

10. Financial conditions

The rates for the Services and the frequency of the corresponding invoices are described at the time of the Customer’s subscription and Order. The Company will inform the Customer by any means and with reasonable notice of any change in its tariffs envisaged during the term of the Contract and taking effect at the time of the next renewal. By express agreement, the Customer will be deemed to have accepted the price changes if he continues to use the Services following renewal.

Within the framework of the guidelines defined by the public authorities, relating to sustainable development policy, the Customer expressly authorizes and accepts that the Company may issue dematerialized invoices electronically. All invoices are available on the Company’s extranet. However, upon written request to customer service, the customer may obtain a paper invoice. For Services subject, where applicable, to consumption-based billing, invoices are drawn up on the basis of data from the Company’s billing system. This data is kept by the Company for a period of one year from the date of registration.

The Customer undertakes to pay the lump-sum and recurring sums provided for under his Order. The sums required by the Company are debited in advance by the Company by direct debit at the times specified in the Order. Without prejudice to the Company’s other rights, any default or delay in payment shall immediately give rise to the application of late payment penalties equivalent to three times the legal interest rate from the day following the invoice settlement date. The Company will also be entitled to apply a minimum fixed indemnity of €40 for collection costs.

In the event of persistent non-payment after more than three direct debit attempts, the Company shall be entitled, without formality other than the sending of written notification and without prejudice to the Company’s other rights, to suspend the Customer’s access to the Application and/or Services until full payment of the sums due. Unless the Customer complies with its payment obligation, the Customer Data will then be deleted within one (1) month of said suspension. Under no circumstances may the Customer claim any compensation from the Company for the interruption of the Service(s) as a result of a payment incident.

The Customer shall also inform the Company, by registered letter with acknowledgement of receipt duly substantiated and within ten (10) days of receipt of an invoice relating to royalties and/or consumption, of any dispute it may have concerning the content of this invoice. Failure to contest an invoice within said ten (10) day period shall render the invoice valid and accurate in all respects. In the event of a dispute, only payment of the sum in dispute will be suspended until the Parties reach an agreement. The Customer undertakes to pay the undisputed part of the invoice immediately and to justify the said dispute within ten (10) days.

11. Warranties

11.1 Company warranties

The Company guarantees that the Application and Services will operate in accordance with the provisions of the Contract. It should be noted, however, that the Company is subject only to an obligation of means in the performance of its Services. The Company does not guarantee that the Application and/or the Services are free of Anomalies or will operate without interruption or in accordance with the Customer’s expectations.

While the Company makes every effort to ensure that the Application is available at all times, it cannot be held responsible for any unavailability of the Application due to malfunctioning of the Internet networks and/or infrastructures hosting the Application, or in the event of scheduled maintenance operations. As performance of the Contract is based on use of the Internet network, the Customer acknowledges that the Company cannot guarantee (i) the proper functioning of the Internet and the absence of interruptions or degradation of services, (ii) the absence of any risk of intrusion, data piracy or contamination by computer viruses.

11.2 Customer warranties

The Customer shall be fully liable to the Company in respect of any non-conformity of the Customer Data with the regulations in force, and in particular in respect of any illicit nature or infringement of third-party rights.

The Customer also indemnifies the Company against the consequences of any failure by the Customer, or its authorized users, to comply with applicable regulations when using the Application and/or Services.  In this respect, it is reminded that the Customer assumes full responsibility for the operation of the Application and/or Services among its users, and may therefore be held liable to the Company for the consequences of any illegal or fraudulent use of the Application and/or Services by itself and/or its authorized users.

In particular, the Customer is reminded that any use of the Application and/or Services that does not comply with the applicable regulations, the rules against cold calling and commercial canvassing, as well as all the provisions of the French Post and Electronic Communications Code and those enacted by ARCEP to strengthen protection against abuse and fraud, may entitle the Company to terminate the Contract and immediately end the Customer’s right to use the Application and/or Services. In such a situation, the customer will not be entitled to any reimbursement of sums due or already paid for the subscription.

In this sense, the Customer shall defend, indemnify and hold the Company harmless against any claim, penalty, fine, complaint, claim, demand or attack of any nature whatsoever from third parties and/or authorities resulting from, or related to, the non-conforming use of the Application and/or Services by itself and/or its end users.

The Customer also acknowledges that he/she has all legal authorizations to use the Application and/or Services. Finally, the parties agree that although the Customer’s Data is hosted within the hosting infrastructures used by the Company, the Customer remains responsible for making regular back-ups of its Data.

12. Liability

In the event that the Company’s liability is established in respect of the performance of a Contract, such liability shall be limited to direct material damage to the exclusion of any indirect and/or intangible damage and, in particular, any loss of sales, profits, business, reputation or goodwill, clientele, commercial or economic loss or any other loss of revenue. Any loss suffered by a third party is considered indirect damage.

Notwithstanding any other stipulation of the Contract, the total cumulative liability of the Company shall not exceed, for each Order, the amount of the sums (exclusive of tax) received by the Company in respect of the Order concerned in the twelve (12) months preceding the event giving rise to liability.

The Company shall not be held liable for any breach of its obligations resulting from (i) improper and/or illegal use of the Services by the Customer (ii) an event of force majeure or beyond its control as defined below (iii) the alteration, malfunction or insufficiency of the Customer’s technical capacity and equipment (iv) the Customer’s failure to comply with the Prerequisites.

In any event, the Customer has a maximum period of one (1) year from the date of knowledge of such a breach to engage the Company’s liability.

13. Force Majeure

If either party is affected by an event of force majeure as defined by applicable law and jurisprudence, the affected party undertakes to notify the other party without delay of the nature and extent of the circumstances in question.

Notwithstanding any provision to the contrary contained in the Contract, neither party shall be deemed to have breached the Contract and shall not be liable to the other party for any delay in performance or non-performance of its contractual obligations (except payment obligations), to the extent that the delay or non-performance is attributable to an event of force majeure of which it has notified the other party. The deadline for fulfilling this obligation will be extended accordingly.

Cases of force majeure, as agreed by the parties, include unrest, calamities, local or national industrial disputes affecting the Company’s services, interruption or breakdown of the telecommunications network, interruption of the distribution of electricity, misuse of terminals by the Customer, total or partial destruction of information transmitted or stored as a result of errors made by the Customer, any government decision – including the withdrawal or suspension of authorizations granted – epidemics, a state of declared war, civil war, acts of terrorism.

If an event of force majeure preventing either party from fulfilling its obligations under the Contract lasts for more than thirty (30) consecutive days, the parties will be required to meet in order to examine the terms of continuing their collaboration or, as the case may be, the conditions of terminating their contractual relationship. If no agreement is reached within thirty (30) days of the start of the consultation, the Contract will be considered terminated ipso jure and without compensation on either side, except with regard to any payment for Services performed prior to the occurrence of the force majeure event.

14. Privacy

The parties undertake to treat as strictly confidential and to treat as such all information of a commercial, financial or technical nature relating to the other party, whatever its medium, communicated or collected during the performance of the Contract, throughout the duration of the Contract and for a period of three (3) years from its expiry or termination. All publicly available information is deemed to be non-confidential.

The parties undertake not to divulge or allow to be divulged, directly or through an intermediary, in whole or in part, the confidential information of the other party, to any third party whatsoever, with the exception of employees and/or subcontractors who require the information in order to perform their obligations or to authorities or bodies who may have knowledge of such information pursuant to a legal obligation imposed on the parties.

15. Intellectual Property – Counterfeiting

The Application and the Services as well as the trademarks, images, texts, photos, logos and any other protected elements made available to the Customer by the Company, without this list being exhaustive, are the exclusive property of the Company or its licensors and are protected by the provisions of copyright, trademark law or any other applicable intellectual property right.

The Company will, at its own expense, defend the Customer against any legal action brought against it by a third party based on the infringing nature of the Application with regard to the intellectual property rights of the third party concerned, and undertakes to pay any fines imposed on the Customer pursuant to a final and unappealable court decision or a settlement previously concluded and approved by the Company.

This warranty is expressly subject to the following conditions (i) the Customer has immediately notified the Company in writing of the third party claim, (ii) that the Company has exclusive control of the means of defence and of any out-of-court settlement, (iii) that the Customer refrains from any admission of liability, and (iv) that he will cooperate actively and loyally with the Company in this respect. Any warranty for infringement of third-party rights is excluded if based on (i) use of the Application that does not comply with the agreed contractual stipulations (ii) a claim concerning any other product, hardware, software or any other data not supplied by the Company, provided that the infringement of third-party rights results solely from this element integrated into the Application and not from the Application taken in isolation.

16. Personal data – Subcontracting

The parties undertake, each insofar as it is concerned, to comply with Law No. 78-17 of January 6, 1978 on data processing, data files and individual liberties as amended successively, including by the Law of June 20, 2018 incorporating Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 (hereinafter the “RGPD”).

Each party is therefore likely to collect and process, as data controller, certain personal data relating to the other party’s employees, staff, agents, representatives and/or subcontractors. Each party undertakes to process personal data collected in this way solely for the purposes of managing their contractual and commercial relations. The parties may transmit this personal data to third parties involved in the same purposes and/or in the functional and technical management of their activities. The parties retain personal data for the legal period applicable to the purpose for which it is to be used. The parties undertake to take all necessary precautions to preserve the security and confidentiality of the aforementioned personal data. In accordance with the regulations applicable to the protection of personal data, the persons concerned have a right of access, rectification, deletion, limitation, opposition concerning the processing of their personal data as well as a right to the portability thereof. These rights may be exercised against each of the parties at the addresses given in the Contract.  Each party declares and warrants that it has duly informed the persons concerned, on behalf of the other party when they initiate their collection, of the conditions under which their personal data is to be processed by the other party in accordance with this article and any confidentiality and data security policy in place.

The processing of Customer Data for which the Company acts as data controller is identified in its privacy policy, available on its website.

As part of the performance of the Services, the Company will also process certain Customer Data containing personal data as a subcontractor of the Customer acting as data controller. In accordance with Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of personal data (RGPD), the parties acknowledge compliance with the stipulations of the subcontracting agreement relating to the processing of personal data available for consultation on the Company’s website.

17. General Stipulations

17.1 No waiver

The fact that either party does not avail itself of a breach by its co-contractor of any of the obligations referred to in the Contract shall not be construed as a waiver for the future of the said breach or of the performance of the obligation in question.

17.2. Assignment/ Subcontracting

The Customer acknowledges that the Contract is entered into with the Company in consideration of the Customer’s person. Consequently, the Customer may not assign, contribute or transfer all or part of its rights and obligations under this Contract without the prior written consent of the Company. The Company is authorized to assign its rights and obligations under this Service Provision Agreement to any entity directly or indirectly owned or controlled by the Company within the meaning of article L.233-1 of the French Commercial Code. The Company is also authorized to assign its rights and obligations under this Agreement in the event of a merger or reorganization, to any entity to which it assigns a substantial portion of the assets relating to this Agreement, or to one of its subsidiaries. The Customer also acknowledges that  the Company may subcontract to third parties the performance of its obligations under this Service Provision Agreement.

17.3 Commercial reference

The Company is authorized to use the customer’s distinctive signs for customer reference purposes on its advertising or promotional communication media.

17.4 Applicable law and jurisdiction

The Contract is governed by French law. In the absence of an amicable agreement, any disputes that may arise concerning the validity, interpretation, performance or non-performance, interruption or termination of the present Contract shall be submitted to a mediation procedure, the terms of which shall be defined by the parties. In the event of failure to mediate or to reach agreement on the terms of mediation, exclusive jurisdiction is assigned to the Paris Commercial Court, notwithstanding multiple defendants or calls for guarantees, even for emergency or conservatory proceedings. Notwithstanding the foregoing, the Company shall retain the right to assert any claim for protective or emergency measures, in particular based on its intellectual property rights or confidential information, before any other competent court of its choice.