Terms and Conditions
These Terms and Conditions (hereinafter "the Contract ») are entered between KAVKOM FRANCE, a 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, whose registered office is located at 92 rue Jouffroy d'Abbans 75017 Paris (hereinafter the « Company »), and the legal entity whose legal information is provided in the Order (hereinafter « the Customer »).
« Anomaly or Defect » means any deviation of a Service from its technical specifications in relation to the Service concerned. An Anomaly or Defect is deemed Major when it prevents any use of the Service concerned by the Customer. Otherwise, it is considered Minor.
Application means the web-based application platform published by the Company and made available to the Customer in SaaS mode (software as a service) under this Agreement, incorporating certain features listed in the Order, including, where applicable, the Phone System.
« Order » means any order by Customer for subscriptions and/or Services via any form completed online by Customer or otherwise agreed to 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, if any, of its customers and prospects, employees, suppliers and other business partners.
« Start of the Services » means the point at which the Company begins to provide the Services under the relevant Order.
« Phone System » means a web-based switchboard Service, provided by the Company, allowing, among other things, Customer's authorized users to receive and place phone calls directly from a web browser (with no software to install), mobile application or SIP phone.
« Prerequisite » means the technical and operational requirements with which the Client must comply under the Agreement, as communicated in writing by the Company to the Client 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, including installation, training and technical assistance, provided by the Company.
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 shall 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 of the Agreement and supersede all prior representations, negotiations, undertakings, oral or written communications, acceptances, and agreements between the parties with respect to the same subject matter. The Contract shall prevail in this sense over any other document, including Customer's 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 Agreement 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 the Start of the Services if all the information and Prerequisites necessary for the Start of the Services have not been complied wityh by the Customer. The Customer shall also inform the Company immediately and in writing of any change in the information concerning him/her contained in any part of the Services Agreement and, in particular, of any change in bank details or billing address.
The Client acknowledges and accepts that in the event that it decides to subscribe to several Services offered by the Company, the Company reserves the right to refuse, for technical and/or commercial reasons, the implementation of one of the Services, without this constituting a cause for termination of the Contract and the other Services subscribed to.
4. PERFORMANCE OF SERVICES
In connection with the performance of the Services by the Company, the Client shall also:
- assist in the definition of its needs,
- communicate to the Company all information and documents useful for the performance of the Services
- respect the Prerequisites
- cooperate fully with the Company during performance of the Services.
It is understood that compliance with the Company's commitments and deadlines for the Services, including Start of the Services, is conditional upon the Client meeting its own obligations.
5. 5. PREREQUISITE
The Customer agrees to use the Services provided under the Agreement in accordance with the Company's instructions and the Prerequisites. To this end, it is notably reminded that any use of the Application and the Phone System by the Client implies that the latter must ensure that his telephone/internet operator or his network administrator offers him the possibility to receive and make phone calls directly from the browser, a mobile application or a SIP phone. Otherwise, the use of part of the Services by the Customer will be impossible. It is furthermore the responsibility of the Customer and its authorized users to ensure, in order to obtain quality Services, that:
- to have a good quality Internet connection, with a real speed of 2 Mb/s in reception and 1Mb/s in 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 of flows to ports 443/tls, 5060/udp, 5060/tcp, 5080/tcp, 5080/udp and 20000- 22000/udp for RTP;
- the use of codecs in order of preference: OPUS, Speex, G711 (PCMA, PCMU).
6. TERM- TERMINATION
The Contract is concluded for the term of subscription to the Services specified in the Order, renewable by tacit agreement for identical subscription periods, unless the Client gives notice of termination via the subscription management interface accessible in the Application or by email sent to the Company within a reasonable period of time before the scheduled renewal date. Any termination by the Client will take effect on the expiration date of the current subscription, no refund will be made.
In the event that one of the parties fails to comply with one of its material obligations under the Agreement and fails to remedy such failure within fifteen (15) days from the date of receipt of the notice of default, the Agreement may also be terminated by right, without prejudice to the other rights of the non-defaulting party. Failure by the Customer to comply with its payment obligations shall constitute a breach of material obligations within the meaning of this Agreement. Upon termination of the Agreement, regardless of the cause, Customer shall 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 to 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 forth in the Order.
Except as expressly provided elsewhere in this Agreement, Customer shall not sublicense, rent, lease, loan, or transfer the rights granted in the Application in any manner whatsoever to any third party.
8. ACCESS TO THE APPLICATION.
Access by the Client or any Authorized User is from any computer and using the login credentials chosen by the relevant user. The Company shall not be liable for any loss or damage resulting from the failure of the Client or any authorized user to protect its login credentials and/or Data.
The administration of access to the Application within the Client's company may also be carried out by one or more administrator(s) designated by the Client, who will be responsible for distributing user access with differentiated access and functionality according to the categories of users concerned. The number of user accesses to the Application and authorized administrator(s) may be limited by the Company.
9. TECHNICAL ASSISTANCE/MAINTENANCE
Subject to the provisions of the Order, in the event of a problem encountered by the Client while using the Application and/or the Services, the Company shall use its best efforts, following receipt of a notification from the Client addressed to the Company's technical department, to provide a correction or workaround solution within a reasonable time.
The Client acknowledges and accepts that the Company reserves the right to correct any Anomaly by the automatic installation of updates. The Client is informed that Minor Anomalies that do not block normal use of the Application and/or Services will not necessarily give rise to correction. The Company will not assume any obligation of maintenance or technical assistance in case of non-compliance by the Client with the Company's instructions and or of the Requirements.
10. FINANCIAL TERMS
The fees for the Services and the schedule of the corresponding invoices are described at the time of the Client's subscription and Order. The Company shall inform the Customer by any means and with reasonable notice of any change in its rates envisaged during the course of the Contract and taking effect at the next renewal. By express agreement, the Client shall be deemed to have accepted the price changes if it continues to use the Services following the renewal.
Within the framework of the orientations defined by the public authorities, relating to the policy of sustainable development, the Client expressly authorizes and accepts that the Company delivers its dematerialized invoices electronically. All invoices are available on the Company's extranet. However, the Client may obtain a paper invoice upon written request to the customer service. For Services subject, where applicable, to consumption-based invoicing, 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 recording.
The Client agrees to pay the fees set forth in the Order. The sums required by the Company shall be paid in advance to the Company by direct debit at the times specified in the Order. Without prejudice to the Company's other rights, any failure to pay or delay in payment shall result in the immediate application of late payment penalties equivalent to three times the legal rate of interest from the day following the date of payment on the invoice. The Company shall also be entitled to apply a minimum fixed compensation for collection costs of €40.
If a default in payment persists after more than three attempts of debiting, the Company shall be entitled, without any formality other than sending a written notification and without prejudice to the Company's other rights, to suspend the Client's access to the Application and/or the Services until full payment of the sums due. Unless the Client complies with its payment obligation, the Client's Data will then be deleted within one (1) month of the said suspension. The Client may not, under any circumstances, claim any compensation from the Company due to the interruption of the Service(s) following a payment incident.
The Client shall also inform the Company, by registered letter with acknowledgement of receipt and duly motivated, within a period of ten (10) days from the receipt of an invoice relating to royalties and/or consumption, of any dispute it may have concerning the content of this invoice. Failure to dispute an invoice within said ten (10) day period shall render the invoice valid and correct in all respects. In the event of a dispute, only the payment of the amount in dispute shall be suspended until agreement between the Parties. The Customer shall immediately pay the undisputed portion of the invoice and justify the said dispute within ten (10) days.
The Company warrants that the Application and the Services will operate in accordance with the provisions of the Contract. It is however reminded that the Company is only subject to an obligation of means for the execution of its Services. The Company does not guarantee that the Application and/or the Services are free of Anomalies or will function without interruption or in accordance with the Client's expectations.
Although the Company makes its best efforts to guarantee an availability rate of the Application without serious discontinuity, it cannot be held responsible for any unavailability of the Application due to the malfunctioning of the Internet networks and/or infrastructures hosting the Application, or in the event of planned maintenance operations. As the performance of the Contract is based on the use of the Internet network, the Client acknowledges that the Company cannot guarantee (i) the proper functioning of the Internet or the absence of interruptions or degradation of services, (ii) the absence of any risk of intrusions, data piracy and contamination by computer viruses.
11.2 Client's warranties.
The Client shall be fully liable to the Company with respect to the non-conformity of the Client Data with the regulations in force, and in particular with respect to its illicit nature or its infringement of third party rights.
The Client also warrants the Company against the consequences of any failure by the Client to comply with the applicable regulations when using the Application and/or the Services. In this respect, it is reminded that the Client takes full responsibility for the operation of the Application and/or the Services by its users.
The Client also acknowledges that it has all the legal authorizations required to use the Application and/or the Services. Finally, the parties agree that although the Client's Data is hosted within the hosting infrastructures used by the Company, the Client remains responsible for making regular backups of its Data.
In the event that the Company's liability is established in connection with the performance of a Contract, such liability shall be limited to direct material damage to the exclusion of any indirect and/or immaterial damage and, in particular, any loss of turnover, profit, business, reputation or goodwill, clientele, commercial or economic loss or other loss of income. Any damage suffered by a third party is considered as indirect damage.
Notwithstanding any other provision of the Agreement, the Company's total cumulative liability shall not exceed, for each Order, the amount of the sums received by the Company exclusive of tax under the relevant Order in the twelve (12) months preceding the event giving rise to liability.
The Company shall not be liable for any failure to comply with its obligations resulting from (i) improper 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 technical capacity and equipment of the Customer (iv) the failure of the Customer to comply with the Prerequisites.
In any case, the Client has a maximum period of one (1) year from the 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 anything to the contrary contained in the Contract, neither party shall be deemed to be in breach of 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 time limit for the performance of this obligation shall be extended accordingly.
The following are also conventionally considered by the parties to be cases of force majeure: calamities, local or national social conflicts affecting the Company's services, interruption or breakdown of the telecommunications network, interruption of the distribution of electricity, misuse of the terminals by the Client, total or partial destruction of the information transmitted or stored as a result of errors caused by the Client, any governmental 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 shall be required to meet in order to examine the terms and conditions for continuing their collaboration or, as the case may be, the conditions for terminating their contractual relationship. If no agreement is reached within thirty (30) days from the start of the consultation, the Contract shall be considered terminated by operation of law and without compensation on either side, except with regard to any payment for Services performed prior to the occurrence of the force majeure event.
The parties agree to treat as strictly confidential and to treat as such all information of a commercial, financial or technical nature relating to the other party, regardless of the medium, communicated or collected during the performance of the Agreement and for a period of three (3) years from its expiration or termination. All publicly known information shall be deemed non-confidential.
The parties agree not to disclose or allow to be disclosed, 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 need the information for the performance of their obligations or to authorities or organizations that may have knowledge of such information pursuant to a legal obligation imposed on the parties.
15. INTELLECTUAL PROPERTY – INDEMNIFICATION
The Application and Services, as well as trademarks, images, text, photos, logos and any other protected material 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 copyright, trademark or other applicable intellectual property rights.
The Company will defend, at its own expense, the Client against any legal action brought by a third party against it and which would be based on the infringing nature of the Application with regard to the intellectual property rights of the third party concerned and undertakes to bear the costs of the sentences pronounced against the Client under a final and unappealable court decision or a transaction concluded and approved beforehand by the Company.
This warranty is expressly subject to the conditions that (i) the Client has immediately notified the Company in writing of the third party's claim, (ii) the Company has exclusive control of the defenses and of any settlement, (iii) the Client refrains from any admission of liability, and (iv) the Client actively and faithfully cooperates with the Company in this regard. Any warranty for infringement of third party rights is excluded if based on (i) use of the Application not in accordance with the agreed contractual terms and conditions (ii) a claim regarding any other product, hardware, software or other data not provided by the Company, if the infringement of third party rights results solely from that element integrated into the Application and not from the Application solely.
16. PERSONAL DATA – SUBCONTRACTING.
The parties undertake, each insofar as it is concerned, to comply with Law No. 78-17 of January 6, 1978 relating to data processing, files and freedoms as successively amended, 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 "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 the personal data thus collected only 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 shall keep this personal data for the legal period applicable to the purpose. 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, and opposition concerning the processing of their personal data, as well as a right to the portability thereof. These rights may be exercised with respect to each of the parties at the addresses given in the Contract. Each party represents 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 this other party in accordance with this article and any confidentiality and data security policy that has been put in place.
In connection with the performance of the Services, the Company will further process certain Client Data involving personal data as a processor of the Client acting as a data controller. In accordance with Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of personal data (RGPD), the parties acknowledge compliance with the provisions of the data processing agreement relating to the processing of personal data that can be consulted on the Company's website.
The fact that either party does not avail itself of a breach by its co-contractor of any of its obligations under the Agreement shall not be construed as a waiver of the said breach or of the performance of the obligation in question.
The Client acknowledges that the Agreement is entered into with the Company in consideration of the Client's person. Therefore, the Client may not assign, contribute or transfer all or any part of its rights and obligations under this Agreement without the prior written consent of the Company. The Company is authorized to assign its rights and obligations under this Service Agreement to any entity owned or controlled directly or indirectly by the Company within the meaning of Article L.233-1 of the 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 transfers a substantial portion of the assets relating to this Agreement, or to one of its subsidiaries. Customer also acknowledges that Company may subcontract to third parties the performance of its obligations under this Service Agreement.
17.3 Commercial reference
The Company is authorized to use the distinctive signs of the Client for commercial reference purposes on its advertising or promotional communication media.
17.4 Applicable Law and Jurisdiction
The Contract is subject to 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 this Agreement shall be submitted to a mediation procedure, the terms of which shall be defined by the parties. In the event of failure of the mediation or of agreement on the terms of mediation, exclusive jurisdiction is granted to the Commercial Court of Paris, notwithstanding multiple defendants or calls for guarantees, even for emergency proceedings or protective 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.