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GENERAL TERMS AND CONDITIONS FOR SERVICES

Captivea France - Version 2 - Last updated August 2, 2024

Captivea France’s general terms and conditions of services (“Terms”)

CAPTIVEA provides consulting, software integration, training, and specific software development services to professionals in the field of business management software and enterprise information systems. These General Terms and Conditions aim to define the conditions for the provision and execution of services, licensing of Software, Add-on Modules, as well as the Software Solution made available to the Client.

PART A - GENERAL PROVISIONS

ARTICLE 1 – DEFINITIONS

In these General Terms and Conditions, each of the expressions mentioned below shall have the meaning given in its definition, as follows:

Client: The legal entity that has entered into a contract with CAPTIVEA.

Contract: The contract consists of the Quote approved by the Client and these General Terms and Conditions. In case of any conflict, the provisions of the Quote prevail over the General Terms and Conditions.

Quote: CAPTIVEA's commercial proposal describing the services provided, their prices and, if applicable, the Software or Software Solution licensed, the duration of the licence, and its price.

Specific Developments: Software developments created by CAPTIVEA in addition to the Software and Add-on Modules to specifically meet the Client's needs.

Data: Data of any kind, including Users' personal data, collected and processed by the Software, as well as data generated by the Software.

Study: IT consulting services, such as audit, needs analysis, or assistance in drafting specifications.

Publisher: A company that publishes and markets the Software(s), for which CAPTIVEA is a reseller.

Installation: Provision of the Software to the Client by creating one or more user accesses.

Software Integration: Installation service at the Client's location, or in hosted mode, of Software or a Software Solution licensed to the Client.

Go-Live: The actual use of the Software by the Client in its work environment, starting from or via the entry of real data, for the completion of effective work.

Add-on Modules: Software programs developed or distributed by CAPTIVEA, designed to be provided to multiple users for the same application or function, to complement the basic features of the Software, as detailed in the Quote.

Acceptance Testing: Client's validation of the Software Installation, either expressly or tacitly through the Go-Live of the Software.

Software Solution: A software package integrating Software, Add-on Modules and Specific Developments.

Information System: All hardware, software, applications, databases and telecommunications networks of the Client.

Services: All services offered by CAPTIVEA, including Study, Framing, Audit, Training, Software Integration, Data Migration, Support, Maintenance, Specific Developments and any other services related to the Client's Information System.

User: A natural person, under the authority of the Client, authorized to use the Software.

ARTICLE 2 – CONTRACT FORMATION

Each service provision is subject to a quotation or prior commercial proposal. Only the prices and information set out in this quotation or commercial proposal are contractually binding, to the exclusion of prices and information appearing in catalogues, brochures, and on the CAPTIVEA website, which are provided purely for indicative purposes.

The contract is deemed concluded as soon as CAPTIVEA is informed of the Client’s acceptance of the quotation or commercial proposal, either by postal mail sent to CAPTIVEA’s registered office or by email.

In the case of acceptance by email, the contract will be considered formed only as of the date CAPTIVEA sends an acknowledgment of receipt or confirmation of the Client’s email.

Acceptance of the quotation or commercial proposal may also be formalized through a certified electronic signature process (such as Docusign or another certified electronic signature provider), in compliance with Articles 1364 and following of the Civil Code.

Unless expressly stated otherwise in the quotation or commercial proposal, the contract comes into force on the date it is formed.

Once the Contract is formed, it is irrevocable. However, in the event of unilateral termination by the Client, for any reason, all amounts owing under the Contract become immediately due and payable, and the Client must pay them within a maximum of thirty (30) days following presentation of an invoice.

ARTICLE 3 – DURATION

For Software licences, the Contract takes the form of a subscription entered into for an initial term of one (1) year from the Software Installation, unless a longer commitment period is specified in the Quote.

This Contract is renewable automatically at expiry for additional periods of one (1) year, unless either party informs the other of its intention to terminate by registered mail with acknowledgement of receipt, with a minimum notice period of three (3) months before the initial or renewed expiry date. Any changes made during this last quarter will incur a fixed management fee of €200 (exclusive of VAT) per subscription.

The Contract ends when all of the Services have been completed by CAPTIVEA and paid for by the Client. In any event, the Contract ends on the date of its termination or non-renewal, regardless of the reason.

ARTICLE 4 – ACCEPTANCE AND MODIFICATION OF GENERAL TERMS AND CONDITIONS

In the absence of any specific written provision in the Quote or commercial proposal that departs, in whole or in part, from these General Terms and Conditions, the Client’s acceptance of a Quote or commercial proposal from CAPTIVEA constitutes the Client’s full acceptance of these General Terms and Conditions, to the exclusion of any other documents issued by the Client, provided that the Client had the opportunity to review these terms.

CAPTIVEA reserves the right to amend these General Terms and Conditions at any time. 

Amendments to the General Terms and Conditions will apply to contracts already in effect thirty (30) days after the amendments are sent to the Client by email. If the Client rejects these amendments, they may terminate the Contract by sending a registered letter with acknowledgement of receipt to CAPTIVEA within that notice period. In such a case, the provisions set out in Article 17: Consequences of Contract Termination will apply. 

ARTICLE 5 – PROVISION OF SERVICES 

As part of providing its Services, CAPTIVEA does not undertake any obligation of result. 

CAPTIVEA's liability is governed by the provisions set out in the relevant section of Part A - Article 8.

Article 5.1 – Definition of Contractual Scope

CAPTIVEA does not undertake a predefined contractual scope, but instead commits to a time frame, with the aim of effectively addressing the Client's needs. While CAPTIVEA may provide the Client with an overall project estimate for a comprehensive understanding, this does not constitute a fixed commitment. 

Article 5.2 – Analysis Phase

Before commencing Services, CAPTIVEA may propose an analysis phase to define the functional or technical scope, the Client's specifications, and to ensure compatibility between the Client's requirements and the selected software solution or Service. This analysis phase will be included in the initial Quote or commercial proposal, together with a commitment of resources.

If applicable, the Client accepts that this phase may lead CAPTIVEA to reassess the overall estimate and the time commitment required for the Service. 

ARTICLE 6 – CLIENT COMMITMENTS

The Client commits to actively collaborating in the successful completion of the Services by providing CAPTIVEA, in a timely manner, with accurate and truthful information, along with all data and documents necessary for the progress of the project and compliance with the deadlines specified in the Contract. The Client will promptly notify CAPTIVEA of any factors that may compromise the proper performance of the Services. The Client undertakes to inform CAPTIVEA of any changes concerning the information provided and will be solely responsible for any malfunction.

If the Services chosen by the Client are to be performed from the Client's premises and/or with the Client's equipment, the Client undertakes to ensure CAPTIVEA has unrestricted access to its premises and/or equipment, and to provide the tools strictly necessary for the proper performance of the Services. 

The Client agrees to comply with all technical prerequisites necessary for the installation and operation of the Software and Software Solution. The technical prerequisites communicated by CAPTIVEA are provided for information purposes only and are subject to change by the software publishers and the providers of the Client's Information System. 

The Client will appoint a person capable of addressing functional and/or technical questions from CAPTIVEA, who will act as CAPTIVEA’s primary contact to monitor the progress of the project and its use following delivery of the Software Solution. 

To provide well‑informed responses to questions from our teams, the designated person must also have received training on the basic functionality of the Software Solution. 

In the event of their absence, the Client will promptly appoint an alternate contact to avoid hindering the progress of the project and will ask CAPTIVEA to provide additional basic training for the new contact. 

Unless the Client decides otherwise, this designated person will also be the sole point of contact for CAPTIVEA regarding Support. 

ARTICLE 7 – COMMITMENTS OF CAPTIVEA 

CAPTIVEA agrees to allocate the time and the necessary human, material, and technical resources required to complete the Services ordered by the Client, and undertakes to perform them in a professional manner and in accordance with industry standards, subject to the Client’s proper fulfilment of its own obligations. 

In the absence of specific provisions, the documentation for the Software or Software Solution and any Complementary Modules is the documentation available on the Publisher’s website, in English, or in French where available. 

CAPTIVEA also commits to regularly inform the Client of the progress of the Services and of any difficulties of which it becomes aware and their consequences, particularly in terms of time and/or cost, that may result.

ARTICLE 8 – LIABILITY – INSURANCE 

It is expressly agreed between the parties that CAPTIVEA is bound only by an obligation of means. Consequently, CAPTIVEA's liability can only be incurred in the event of proven fault on its part, as evidenced by the Client.

Expressly, CAPTIVEA cannot be held responsible for indirect damages that the Client may incur, such as commercial losses, loss of profit, damage to brand image, data loss, or other losses that may result from the performance of the Services, the use of the Software, the inability to use the Software, or the use of results obtained through the use of the Software. Any action taken against the Client by a third party constitutes indirect damage. 

It is expressly agreed between the parties that CAPTIVEA's liability, in the event of proven fault, is expressly limited to the amount paid by the Client under the Contract in the twelve (12) months preceding the occurrence of the damage, even in the case of termination or cancellation of the Contract. 

CAPTIVEA holds professional liability insurance. CAPTIVEA undertakes to maintain such coverage throughout the term of this Contract and to provide evidence upon the Client's request. 

ARTICLE 9 – DEADLINE  

The timelines and delivery dates specified in the quote or commercial proposal are provided for information purposes only, unless otherwise stated. Consequently, delays in delivery attributable to CAPTIVEA cannot give rise to any penalties or compensation, nor justify a price adjustment, or the cancellation or rejection of the order by the Client. 

If the delay is attributable to the Client (change requests, pending items, etc.) or to a supplier of CAPTIVEA, the delivery date will be rescheduled accordingly, based on CAPTIVEA's availability, and CAPTIVEA will not be held responsible for such delay. 

If the delay exceeds thirty (30) days after unsuccessful follow-up, CAPTIVEA reserves the right to terminate the contract, with the client remaining liable for all invoices and orders placed before the termination. 

ARTICLE 10 – FINANCIAL TERMS

Article 10.1 – Rates 

The rates for the Services are expressed in euros, net and excluding all taxes and duties. However, if the price of Software Licences is based on a supplier price outside the eurozone, its price may be expressed in foreign currencies. In such a case, it will be converted into euros based on the exchange rate applicable on the day the Licence (or its renewal) is billed.

Annual fees for licence management, specified in the Quote or commercial proposal, may apply to the Client. 

Article 10.2 – Rate Revision  

CAPTIVEA reserves the right to modify its prices at any time to reflect changes in its own suppliers’ (Publisher) pricing or to reflect changes in its internal costs. The Client has the option to reject this modification and terminate the Contract without penalty by sending a registered letter with acknowledgement of receipt to CAPTIVEA within thirty (30) days of CAPTIVEA sending these new rates.  

In the absence of termination within the prior notice, the rate modifications will automatically apply to the ongoing Contract. In case of termination, the provisions of Article 17 apply. 

Article 10.3 – Invoice Delivery 

Invoices are sent in electronic format; however, the Client may request paper format delivery. This request may be subject to administrative fees. 

Article 10.4 – Payment 

Unless otherwise agreed between the parties, the Client undertakes to pay the total amount of the services outlined in the quote or commercial proposal upon order validation. Services provided as subscriptions are invoiced annually, at the beginning of the period. Unless otherwise agreed between the parties, invoices are payable upon receipt. 

Payment is made by bank transfer or by cheque payable to CAPTIVEA. All bank fees (including rejection fees) charged by a financial intermediary or paid by CAPTIVEA will be invoiced to the Client. 

In the event of a total or partial delay in payment, for any reason whatsoever, a late payment penalty will be applied at the contractual rate of 12% per annum from the due date, without the need for a reminder, in accordance with Article L441-6 of the Commercial Code. In addition, the Client will also be subject to a fixed indemnity for recovery costs, the amount of which is set at €40. However, if the recovery costs incurred exceed €40, CAPTIVEA may request additional compensation, with supporting documentation. 

For licence renewals, these late penalties will apply in addition to those applied by the Publisher and will be automatically recharged to the client (see Part B, Article 2).

Article 10.5 – Realization and Payment of Services 

The Client will be assisted by the prior purchase of a "time booklet," allowing them to acquire a reserve of available time from CAPTIVEA for the delivery of various services detailed in the quote or commercial proposal.

Time booklets are invoiced and payable in full in advance upon receipt of the order, unless otherwise agreed. The validity period of the time booklets is two (2) years from the date of the order. The applicable hourly rate is the one in effect at the time of the order or at the time of the time booklet renewal. 

All services performed in "Time Booklet" mode, excluding functional support, result in an estimate of the time used, in accordance with the procedure indicated in the quote or commercial proposal. 

Any requests requiring, according to CAPTIVEA's estimate, a maximum of four (4) hours of work are carried out without prior validation by the Client. Requests are estimated for information purposes and must be validated by the Client beforehand, with the actual time spent on the work being deducted from the time booklet upon completion. For any non-validated request, the qualification time is deducted in real time. 

The time spent on a request is deducted in increments of fifteen (15) minutes. 

When the contracted time booklet is used up, if an additional time booklet has not been renewed in advance with our services and in order to ensure continuity of service for the Client, CAPTIVEA may handle all additional or outstanding requests from the Client based on the hourly rate in effect on the date the work is performed by our teams (as of 01/01/2022: €150/hour). The invoice will be issued every two months and is payable upon receipt. 

Services provided in "Time Booklet" mode do not include any travel expenses. 

To ensure CAPTIVEA’s support is provided under the best possible conditions, the Client agrees to hold at least one thirty (30) minute quarterly meeting between their CAPTIVEA contact and themselves. 

In the event the Contract is terminated, for any reason, any remaining time balance acquired through the time booklets is non-refundable. 

Article 10.6 - Security deposit clause for monthly invoiced services on a deferred payment basis: 

1. Security deposit for monthly invoiced services: 

For services invoiced monthly, a security deposit will be required from the Client.

The security deposit must be equal to at least 100% of the estimated total amount for the month. 

Payment of the security deposit will be made using any means of payment accepted by the company. 

2. Adjustment of the security deposit: 

If the invoiced amount during the month exceeds the initial security deposit, the amount of the security deposit will be adjusted. 

This adjustment is intended to ensure that the security deposit will be equal to at least 100% of the total monthly invoice amount. 

3. Billing of the security deposit and regular monthly billing: 

At the start of the service period, the security deposit will be invoiced to the Client. 

Subsequently, the monthly billing system will come into effect. 

4. At the end of the contract:

Upon termination of the Contract, the security deposit will be refunded by allocating service hours equivalent to the initial amount of the security deposit.  

The request for a refund of the deposited guarantee must be initiated within 12 months following the termination in order to be valid. After this period, the request will be considered void and will not be accepted.

ARTICLE 11 – CONFIDENTIALITY

The Parties agree not to disclose any confidential information of the other Party that they may become aware of in the course of providing CAPTIVEA’s services and/or implementing these terms. Accordingly, the Parties commit to strictly maintain this confidentiality and not to disclose to anyone any non-public information they may become aware of, both during the term of the contract and after its expiry. In particular, the Customer agrees not to disclose to any third party, in whole or in part, any information obtained about CAPTIVEA’s software solutions, and CAPTIVEA agrees not to disclose the Customer’s confidential information and not to use it for any purpose other than what is strictly necessary for providing services to the Customer. The terms and conditions of the relationship between CAPTIVEA and the Customer are deemed confidential. Information that is publicly available at the time of disclosure, or that later becomes publicly available without either Party breaching its confidentiality obligation, or that is legitimately obtained from a third party without breaching a confidentiality agreement regarding that information, is not considered confidential.

ARTICLE 12 – NON-SOLICITATION

Throughout the entire term of the Contract and for a period of one (1) year from the end of the Contract, for any reason whatsoever, the Customer agrees not to solicit, hire, or engage, directly or indirectly, any employee or former employee of CAPTIVEA, whether or not they participated in the performance of the Contract.

In the event of a breach of this clause, the Customer shall pay CAPTIVEA compensation equal to one year of the gross loaded salary (including employer contributions) of the affected employee.

ARTICLE 13 – COMMERCIAL REFERENCES

By accepting these General Terms and Conditions and throughout the term of the Contract, the Client expressly authorizes CAPTIVEA to reference them as a client and to reproduce on its website and commercial documents the logo or brand provided by the Client for accurate reproduction in accordance with the Client's graphic charter. Similarly, the Client may state that they are a client of CAPTIVEA.

ARTICLE 14 – FORCE MAJEURE

The performance of the obligations incumbent upon each party under these terms will be suspended in the event of a force majeure event within the meaning of Article 1218 of the French Civil Code and the jurisprudence of French courts. By express agreement, events considered as force majeure include malfunctions, restrictions, or interruptions of electrical or telecommunication networks, Internet networks, and in particular any breakdowns or interruptions of services at providers or subcontractors of CAPTIVEA. In this case, the party affected by force majeure will promptly, and in writing, inform the other party of its duration and foreseeable consequences. If the force majeure event exceeds sixty (60) days from the notification mentioned above, the affected party shall have the right to terminate the Contract automatically and without indemnity, without any formality other than sending a registered letter with acknowledgment of receipt to the other party.

ARTICLE 15 – ASSIGNMENT 

The benefits of the Contract may not be assigned or transferred by the Client to a third party without CAPTIVEA’s prior written consent. However, CAPTIVEA has the right to assign its rights and obligations under the Contract at any time, provided that the Client is informed. In this case, CAPTIVEA is released from any obligation related to the Contract, both for obligations already performed and those relating to the future performance of the Contract by the assignee.

ARTICLE 16 – ANTICIPATED TERMINATION 

If either party breaches its material obligations (namely, default in payment or failure by the Client to fulfil its obligation to collaborate), and the breach is not remedied within one (1) month after notice of the breach is given by registered letter with acknowledgement of receipt, the other party may terminate the Contract automatically by registered letter with acknowledgement of receipt.

Furthermore, in the event of early termination due to the Client’s breach, CAPTIVEA reserves the right to apply a penalty payable by the Client, set at 10% of the price before taxes of the remaining amounts due, without prejudice to any additional damages that CAPTIVEA may claim to compensate for the loss suffered.

In the case of unilateral cancellation of the Contract by the Client, the amounts due under the Contract will become immediately payable, and the Client must pay them within a maximum period of thirty (30) days upon presentation of the invoice.

ARTICLE 17 – CONSEQUENCES OF CONTRACT TERMINATION 

In the event of termination of the Contract, for any reason whatsoever, the Client shall:

  • Immediately cease using the Software,
  • Return to CAPTIVEA all components of the Software and any copies thereof within ten (10) days following termination or expiry,
  • Settle, within fifteen (15) days, any outstanding amounts owed to CAPTIVEA.

Upon Contract termination, regardless of the cause, the fees accrued for the current contractual period will not be refundable, and the remaining time balance acquired through time packages will not be refundable.

At the end of the Contract, CAPTIVEA undertakes to return to the Client or destroy all items or documents belonging to the Client and of which CAPTIVEA may have become aware in the course of performing the Services, and to retain no copies thereof.

ARTICLE 18 – SEVERABILITY OF CONTRACTUAL PROVISIONS 

Any event affecting, for any reason whatsoever, the existence of a contractual provision, including deletion, impossibility of performance, or invalidation by a court decision, that is separable from the other provisions herein, does not affect the binding nature of the performance by the parties of the other provisions in these general terms and conditions. 

ARTICLE 19 – NON-WAIVER 

In the event that either party fails to enforce or claim the application of any provision herein by the other party, such conduct shall not be construed as a waiver of such application and shall not prejudice the respective rights of the parties. 

ARTICLE 20 – APPLICABLE LAW – DISPUTES 

These general terms and conditions are governed by French law. 

In the event of a dispute and failing an amicable settlement, exclusive jurisdiction is granted to the Commercial Court of Chambéry, notwithstanding multiple defendants or third-party proceedings, even for urgent or protective measures, in summary proceedings, or by petition. 

PART B – SPECIFIC CONDITIONS FOR SOFTWARE LICENSES AND ADDITIONAL MODULES

ARTICLE 1 – ACCEPTANCE OF THE PUBLISHER'S SOFTWARE LICENCE 

Any Software Integration service includes the granting of Software Licences, the quantity of which is defined in the Contract by the Client. 

The Client must confirm the terms of the Software licence with the publisher before ordering the licences through CAPTIVEA. 

The Client undertakes to use the Software in accordance with the terms and provisions of the end-user licence agreement. 

Furthermore, the effectiveness of the Contract is subject to the Publisher’s acceptance of the Client’s licence order. 

ARTICLE 2 – PUBLISHER'S COMMERCIAL POLICY

The Publishers with whom CAPTIVEA is a partner are free to set and amend their commercial policy without notice. 

Therefore, CAPTIVEA reserves the right to pass on these modifications, regardless of their nature, to ongoing Contracts with the Client, without notice.

In particular, but not limited to, CAPTIVEA reserves the right to: 

  • Modify the licence prices in the event of a change in the Publisher's prices,
  • Automatically invoice any late payment penalties applied by the Publisher in the event of delayed payment (payment after the beginning of the invoiced period),
  • Terminate Maintenance or Support for versions not supported by the Publisher,
  • Terminate the Contract if it no longer meets the eligibility conditions in force set by the Publisher.

CAPTIVEA will notify the Client as soon as it becomes aware of this change in commercial policy and inform them of the effective date of the change or, if applicable, of the termination. This termination does not entitle the Client to any indemnity or refund of amounts paid under the Contract to CAPTIVEA.

Furthermore, in the event that the concluded Contract has not yet come into effect, and a change in the Publisher's commercial policy, occurring between the formation of the Contract and its effective date, prevents the Contract from being executed, CAPTIVEA may cancel the Contract without cost or indemnity.

ARTICLE 3 – DURATION – TERMINATION

Any Licence contract not terminated within the deadlines and according to the procedures specified in Article A.3, whether it is a total or partial termination, will be invoiced to the Client, regardless of their actual use of the Software.

ARTICLE 4 – CLIENT'S RESPONSIBILITY  

The Client acknowledges that they have verified the suitability of the Software for their needs. Consequently, CAPTIVEA cannot be held responsible for any inadequacy of the Software it provides for specific objectives that the Client may envisage or pursue. In any case, the use of the Software is under the sole control, direction, and responsibility of the Client. Any use of the results obtained through the implementation of the Software is solely within the competence and responsibility of the Client.

The Client agrees to actively collaborate with CAPTIVEA so that it can fulfil its commitments to Software Publishers or Additional Modules, and so that the Licences can be executed under the conditions specified in the Quote.

ARTICLE 5 – NUMBER OF LICENCES

The Subscription Agreement specifies the number of user seats (resulting in the opening of "accounts"), which determines the amount of licence fees.

The Client agrees to use the Software or Software Solution for the number of users stated in the Agreement, and in accordance with the definition set out in the end-user licence agreement.

If user accounts are added, modified or deleted, the Client undertakes to inform CAPTIVEA within 48 hours, it being specified that the deletion of an account during the subscription period will not result in any reduction of the applicable subscription amount or any refund of licence fees already paid. During the three (3) months preceding renewal, a flat administrative fee of two hundred euros (€200) will be charged for any deletion of user accounts.

ARTICLE 6 – PRICE – PAYMENT

The price of Software Licences may be based on a supplier price in currencies other than euros; therefore, the price may be expressed in foreign currencies. In such a case, it will be converted into euros based on the exchange rate applicable on the date the Licence is invoiced (or renewed).

Annual fees for licence management may be charged to the Client.

Unless otherwise specified in the Quote or commercial proposal, Software or Software Solution Licences are payable annually in advance upon presentation of the invoice.

PART C - COMMON CONDITIONS FOR SOFTWARE INTEGRATION SERVICE AND SPECIFIC DEVELOPMENT SERVICE

ARTICLE 1 – BASIC FUNCTIONING

The solution proposed by CAPTIVEA and selected by the Client is based on existing Software or a Software Solution. Requested customizations must be achievable through the features provided as standard by the selected Software Solution (configurations, development tools provided by the system).

The possibilities, uses, and work methods that can be implemented depend on the capabilities of the Software. This allows for better scalability, consistency among different features, and the development of expertise across the entire system. 

Additionally, the Client understands and agrees that the presentation of information, data lists, and other elements of the user interface on the screens will remain as provided by default in the standard offering of the Software or Software Solution. 

If applicable, document generation will be based on the customization options offered by the software, drawing inspiration, where possible, from the documents provided by the Client (logo, colour codes).

ARTICLE 2 – DATA MIGRATION 

If included in the contract, data migration services from the old software involve importing data by implementing a simple column-matching script from the file provided by the Client to the database of the new Software Solution. 

The extraction of data from the old system and its communication to our teams will be the responsibility of the Client, in the form of flat files that can be used with standard office software (Microsoft Office) or a MySQL relational database. 

Unless otherwise specified in the Quote, data migration services do not include any data cleansing, qualification, modification, deduplication, or formatting. It is the Client's responsibility to provide a complete, clean data file containing correctly formatted information that is ready to be inserted into the new software. 

The Client understands and agrees that, if incorrect or incomplete data files are provided to CAPTIVEA for migration, data migration services will be billed again by CAPTIVEA to account for the additional analysis and implementation work required. 

ARTICLE 3 – PRELIMINARY TESTING 

The Client may request that tests be carried out before the installation of the Software or Software Solution. This service will be specified in the Quote. 

If applicable, tests will be carried out and performed by CAPTIVEA internally under normal usage conditions to ensure the proper functioning of the Software Solution as set out in the Commercial Proposal. 

CAPTIVEA undertakes to correct any issues and malfunctions identified during these tests, taking the time necessary for this task within a time log previously approved by the Client. 

ARTICLE 4 – SOFTWARE OR SOFTWARE SOLUTION DELIVERY 

If the Client chooses to install the Software or Software Solution themselves, they must have made any necessary adjustments to accommodate the Software or Software Solution within their Information System, in accordance with the specifications and/or hardware and software technical prerequisites indicated by the Editors (on their websites). 

If this installation is carried out by CAPTIVEA, the Client must also have complied with additional prerequisites communicated by CAPTIVEA. 

In all cases, the Client must previously have made any necessary adjustments to establish links and gateways with other business applications in the Information System (Telephony Server, Document Management System, ERP, CRM, Internal Database, etc.).

ARTICLE 5 – DELIVERY AND INSTALLATION – ACCEPTANCE TEST

The delivery and installation of the Software Solution will take place according to the terms specified in the Contract. 

Upon delivery by CAPTIVEA, the Client will verify the Software Solution’s compliance with their stated needs. 

ARTICLE 6 – SUSPENSION OF SERVICES

In the event that the Client fails in their obligation to collaborate by neglecting to respond promptly to CAPTIVEA's requests for the proper execution of the Services, CAPTIVEA may, after a final written request to the Client to provide the requested elements within a maximum period of 30 days without response, decide to immediately suspend the Contract.

This suspension will take effect on the day it is notified to the Client and will remain in force until the provision of the requested elements or information. If the Client fails to respond within a period of three (3) months from the notification of the suspension, CAPTIVEA may terminate the Contract without further notice. The provisions of Article A.16, paragraph 2, shall apply.

ARTICLE 7 – INTELLECTUAL PROPERTY

When the Contract involves providing the Client with access to software or additional modules published by a Publisher, the Client has the right to use this software or these additional modules within the limits and conditions of the end-user licence agreement proposed by the Publisher, with ownership of said software and modules remaining with the Publisher.

When the scope of the service includes additional modules (developed by CAPTIVEA) or the creation of specific developments, unless otherwise specified in the Quote, these remain the intellectual property of CAPTIVEA. These General Conditions do not, under any circumstances, entail the transfer of exploitation rights to the Client. 

Hereby, CAPTIVEA grants the Client a personal, non-transferable and non-exclusive licence to use the additional modules and specific developments solely for the operation of the Software Solution, for the authorized number of workstations, and subject to payment of the licences as defined in the Contract. 

Therefore, the Client refrains from making any modifications, distribution, adaptation, or commercial exploitation of the Software Solution, including the additional modules and specific developments created by CAPTIVEA. 

In the event that the rights to specific developments have been transferred to the Client, this transfer will only take effect on the date of full payment by the Client for these developments. Furthermore, CAPTIVEA reserves the right to use the knowledge gained from the studies and/or developments entrusted to it by the Client and to carry out developments for third parties, based on elements similar to those developed at the Client's request. In all cases, CAPTIVEA remains the sole owner of the methods, tools and know-how used in the context of its services. 

ARTICLE 8 – SERVICE WARRANTY

CAPTIVEA does not guarantee that the Software or Software Solution is free of defects. CAPTIVEA also offers a maintenance contract, which may be in the form of a time package, covering the core of the Software or Software Solution. 

The Client will notify CAPTIVEA of the existence of a failure by submitting a request within CAPTIVEA's Client space, to which access will have been provided to the Client's designated contact person. Depending on the information received and the details it contains, CAPTIVEA may:

  • Provide the Client, by email or phone, with a solution to remedy the failure;
  • Conduct a remote reproduction test with the Client;
  • Report the failure to the Publisher when it concerns the Software and the Client has an ongoing maintenance contract;
  • Decide on any other solution deemed appropriate under the circumstances.

The costs incurred by implementing this warranty will be borne solely by the Client. If the Client does not wish to engage CAPTIVEA, a request can be escalated to the Publisher's support according to the terms and conditions of the maintenance contract subscribed to in the Quote with the Software Solution Publisher. In the event that the Client's request requires intervention by the Publisher, it will be processed under the conditions and timelines specified by the Publisher at the end of its own warranty. In particular, it may require the installation of a patch or an update to the Software Solution, as recommended by the Publisher.

PART D - SPECIFIC CONDITIONS FOR MAINTENANCE AND SUPPORT

ARTICLE 1 – DEFINITIONS 

Non-blocking Anomaly: any minor or major operational anomaly allowing the partial or complete use of functionalities, even if it requires a workaround procedure. 

Blocking Anomaly: any operational anomaly making it impossible to use all or part of the functionalities of the Software. 

Corrective Maintenance: correction of major and minor anomalies in the Software or Software Solution. 

Support: assistance in using the Software or Software Solution. 

Publisher Maintenance: management of the interface with Software Publishers in case of anomalies in the core of the software.

ARTICLE 2 – CORRECTIVE MAINTENANCE AND SUPPORT

The Client may subscribe to a Maintenance Contract, which will be formalized with a time log, starting from the date indicated in that log. CAPTIVEA will provide Corrective Maintenance services for the Software or Software Solution, as well as Support in accordance with the procedure set out in Article 3. 

At its discretion, CAPTIVEA may propose workaround solutions, correct non-blocking anomalies by sending patches, or escalate a request to the Publisher’s support in accordance with the terms and conditions of the contract subscribed to in the Quote or commercial proposal with the Publisher of the Software Solution. 

If the Client’s request requires intervention by the Publisher, it will be processed under the conditions and within the timelines provided by the Publisher at the end of its own warranty period. In particular, it may require the installation of a patch or an update to the Software or Software Solution recommended by the Publisher. 

CAPTIVEA cannot be held responsible for a response deemed late to a support or maintenance request, or for its inability to resolve an anomaly reported by the Client, as long as it has implemented all necessary means, especially with the Publisher of the Software concerned, to resolve this malfunction.

ARTICLE 3 – PROCEDURE

Requests for Support and Corrective Maintenance must be submitted exclusively through the CAPTIVEA technical platform, in the Client’s personal space. Requests must be centralized and submitted only by the technical contact specified in paragraph A - Article 6.

Requests are received and processed from Monday to Friday, from 9:00 a.m. to 12:00 p.m. and from 2:00 p.m. to 5:00 p.m., excluding statutory holidays and periods of company closure, unless otherwise specifically agreed between the parties. They will be prioritized and processed by CAPTIVEA based on their level of urgency. 

ARTICLE 4 – EVOLVING MAINTENANCE

Considering the services already performed to adapt the software to the Client's needs, it is expressly stated that updates and upgrades of the Software are not included in Corrective Maintenance or the Warranty. Any installation of an update or upgrade will be invoiced as a separate Service.

ARTICLE 5 – EXCLUSIONS 

CAPTIVEA is released from any liability regarding its obligation for maintenance and support for anomalies resulting from: 

  • Inadequacy of User Workstation specifications, including memory capacity, disk space, or any computer peripheral essential for the proper functioning of the Software, as specified in the contract. 
  • Malfunctions related to third-party software (other than the Software) installed on User Workstations. 
  • Breakdown or issues resulting from any intervention or manipulation carried out by the Client and/or a third party on the Workstations that would compromise the proper functioning of the Software. 
  • In general, any intervention by a third party not authorized by CAPTIVEA on the Software or Solution.