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Luxembourg
GENERAL TERMS AND CONDITIONS FOR SERVICES

Captivea Luxembourg - Version 3 - Last Updated 16/05/2024 

Captivea Luxembourg 's general terms and conditions of services (“Terms”)

CAPTIVEA provides consulting services, software integration, training, and custom software development for professionals in the field of management software and corporate information systems. The purpose of these General Conditions is to define the terms and conditions for the provision and delivery of services, licensing of software, add-on modules, and the Software Solution made available to the Client.

PART A - COMMON PROVISIONS

ARTICLE 1 – DEFINITIONS

In these General Conditions, each of the expressions mentioned below shall have the meaning given in its definition, namely:

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

Contract: the contract consists of the Estimate approved by the Client and these General Conditions. In case of contradiction, the provisions of the Estimate shall prevail over the General Conditions.

Estimate: CAPTIVEA’s commercial proposal describing the services offered and their prices, as well as, where applicable, the Software or Software Solution being licensed, the duration of the licence, and its price.

Specific Developments: IT developments created by CAPTIVEA in addition to the Software and Add-on Modules, specifically to meet the Client’s requirements.

Data: data of any kind, including the personal data of Users, 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.

Editor: a company that publishes and markets the Software(s), for which CAPTIVEA acts as 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 Software Solution licensed to the Client.

Software(s): the software published by a third-party company, distributed and/or integrated by CAPTIVEA at the Client’s premises, in the form of object code and associated documentation.

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

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

Acceptance: the Client’s confirmation of the Software Installation, given either explicitly or implicitly through the Go-Live of the Software.

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

Information System: the set of hardware, software, applications, databases, and telecommunication networks of the Client.

Services: all the 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: an individual, under the authority of the Client, who is authorised to use the Software.

ARTICLE 2 – FORMATION OF THE CONTRACT

Every Service is covered by an Estimate or a prior commercial proposal. Only the prices and information stated in this Estimate or commercial proposal have contractual value, to the exclusion of prices and information in catalogues, brochures, and the CAPTIVEA website, which are provided purely for indicative purposes.

The Contract is deemed to be formed as soon as CAPTIVEA becomes aware of the Client’s acceptance of the Estimate or commercial proposal, whether by post sent to CAPTIVEA’s registered office or by email.

In the case of acceptance by email, the Contract will only be formed from the date on which CAPTIVEA sends the acknowledgement of receipt or reading of the Client’s email.

The acceptance of the estimate or the commercial proposal may also be formalised through a certified electronic signature procedure (such as Docusign or another certified electronic signature provider) in accordance with Article 1322-1 of the Luxembourg Civil Code.

Unless otherwise stipulated in the estimate or commercial proposal, the Contract comes into effect on the day it is formed.

Once the Contract is formed, it cannot be cancelled. However, in the event of unilateral cancellation of the Contract by the Client, for any reason whatsoever, the amounts due under the Contract shall become immediately payable, and the Client must settle them within a maximum period of thirty (30) days upon presentation of the invoice.

ARTICLE 3 – DURATION

For Software licences, the Contract takes the form of a subscription, concluded for an initial period of one (1) year from the installation of the Software, unless a longer commitment is mentioned in the estimate.

This Contract is renewable by tacit renewal on expiry for periods of one (1) year, unless one of the parties informs the other of its intention to terminate it by registered letter with acknowledgement of receipt, with a minimum notice period of three (3) months before the initial or renewal expiry date. Any modification during this last quarter will result in a flat-rate management fee of €200 excluding tax per subscription.

The Contract ends when all the Services have been performed by CAPTIVEA and paid for by the Client.

In any case, the Contract terminates on the date of its termination or non-renewal, for any reason whatsoever.

ARTICLE 4 – ACCEPTANCE AND AMENDMENT OF GENERAL CONDITIONS

In the absence of a specific written stipulation in the estimate or the commercial proposal, deviating in whole or in part from these General Conditions, any acceptance by the Client of an estimate or commercial proposal from CAPTIVEA shall constitute full and complete acceptance by the Client of these General Conditions, to the exclusion of all other documents issued by the Client, provided that the latter had the opportunity to acquaint itself with them.

CAPTIVEA reserves the right to modify these General Conditions at any time.

The changes to the General Conditions will apply to ongoing contracts, after a period of thirty (30) days from the email sending of these modifications to the Client. If the Client refuses these modifications, the Client may terminate the Contract by sending a registered letter with acknowledgment of receipt to CAPTIVEA during the notice period. In this case, the provisions of Article 17: Consequences of the End of the Contract will apply.

ARTICLE 5 – PERFORMANCE OF SERVICES

In the execution of its Services, CAPTIVEA is not bound by any obligation of result.

CAPTIVEA's liability is subject to the provisions of the paragraph in Part A - Article 8.

Article 5.1 – Definition of the Contractual Scope

CAPTIVEA does not commit to a predefined contractual scope but only to a volume of time, aiming to best cover the Client's needs. CAPTIVEA may provide the Client with an overall project estimate so that the Client has information allowing for the broadest possible vision of the project; however, this is not a fixed commitment.

Article 5.2 – Analysis Phase

Before carrying out the Services, CAPTIVEA may propose to conduct an analysis phase to define the functional or technical scope to be covered, the Client's Specifications, and ensure the alignment between the Client's needs and the selected software solution or Service. This analysis phase will be included in the initial Estimate or commercial proposal with a commitment of means. If applicable, the Client accepts that this phase may lead CAPTIVEA to reassess the overall estimate and the volume of time required for the performance of the Service.

ARTICLE 6 – CLIENT'S COMMITMENTS

The Client undertakes to actively collaborate in the successful completion of the Services by providing CAPTIVEA with timely, accurate, and sincere information, as well as all necessary data and documents to advance the project and meet the deadlines specified in the Contract. The Client will report any elements that may compromise the successful execution of the services. They commit to informing CAPTIVEA of any changes regarding the provided data and will be solely responsible for any potential malfunctions.

If the services chosen by the Client are to be carried out from the Client's premises and/or with the Client's equipment, the Client undertakes to ensure CAPTIVEA's free access to its premises and/or equipment and to provide the strictly necessary means for the proper execution of the services.

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

The Client will designate a person capable of answering functional and/or technical questions from CAPTIVEA, who will be the preferred contact for CAPTIVEA to monitor the project's progress and its use following the delivery of the Software Solution.

To respond knowledgeably to questions from our teams, the designated person must also have received training on the basic functioning of the Software Solution. In case of absence, the Client will promptly designate a replacement contact to avoid hindering the project's progress and will request CAPTIVEA to provide additional basic training for the new contact.

Unless otherwise decided by the Client, this designated person will also be the sole point of contact for CAPTIVEA for Support purposes.

ARTICLE 7 – CAPTIVEA'S COMMITMENTS

CAPTIVEA undertakes to devote the time and the human, material and technical resources necessary for the completion of the Services ordered by the Client, and to perform such Services in a professional manner and in accordance with best industry practices, subject to the Client duly fulfilling its own obligations.

In the absence of specific stipulations, the documentation for the Software or Software Solution and Add-on Modules shall be that available on the Editor's website, in English, or in French where available.

CAPTIVEA also undertakes to regularly inform the Client of the progress of the Services and of any difficulties of which it becomes aware, including their consequences, particularly with respect to any impact on timelines and/or costs that may arise therefrom.

ARTICLE 8 – LIABILITY – INSURANCE

It is expressly agreed between the parties that CAPTIVEA is only bound by an obligation of means.

Consequently, CAPTIVEA's liability may be incurred only in the event of a proven fault on its part, established by the Client.

It is expressly agreed that CAPTIVEA shall not be liable for any indirect damages that the Client may suffer, including but not limited to commercial loss, loss of profit, loss of business opportunity, damage to brand image, loss of data, or any other indirect consequences arising from the performance of the Services, or from the use of the Software, the inability to use the Software, or from the use of results obtained through the use of the Software. Any claim made against the Client by a third party shall be deemed to constitute indirect damage.

Notwithstanding anything contained above, it is expressly agreed between the Parties that CAPTIVEA's liability, in the event of proven fault and subject to the foregoing, shall in any case be limited to the total amount of sums paid by the Client under the Contract during the twelve (12) months preceding the occurrence of the damage, including in the event of termination or cancellation of the Contract.

CAPTIVEA holds professional liability insurance. CAPTIVEA undertakes to maintain these guarantees throughout the duration of this contract and to provide proof upon the Client's request.

ARTICLE 9 – DEADLINE

The delivery deadlines and dates indicated in the Estimate or commercial proposal are provided purely for indicative purposes, unless otherwise stated. Therefore, delays in delivery attributable to CAPTIVEA cannot lead to any penalties or compensation, nor justify a revision of the price or cancellation or refusal of the order by the Client.

If the delay is due to the Client (change requests, waiting for inputs, etc.) or to a supplier of CAPTIVEA, the delivery date will be rescheduled accordingly, based on CAPTIVEA's availability, and CAPTIVEA shall not be held liable for such delay.

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

ARTICLE 10 – FINANCIAL CONDITIONS

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, it may be indicated in foreign currencies, in which case it will be converted into euros at the exchange rate applicable on the date of invoicing of the Licence (or its renewal).

Annual fees for licence management, as specified in the Estimate or commercial proposal, may be charged to the Client.

Article 10.2 – Rate Revision

CAPTIVEA reserves the right to modify its prices at any time to reflect tariff developments from its own suppliers (Editor) or to reflect the evolution of its internal costs.

In cases covered by Articles 10.2.1 and 10.2.2, the Client will have the option to reject this modification and terminate the Contract without penalty by sending CAPTIVEA a registered letter with acknowledgment of receipt within a period of thirty (30) days from the sending of these new rates by CAPTIVEA.

In the absence of termination within the aforementioned period, the rate changes will automatically become applicable 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 can request delivery in paper format. This request may be subject to administrative fees.

Article 10.4 – Payment

Unless otherwise agreed between the parties, the Client undertakes to settle the total amount of the services outlined in the estimate 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 shall be made by bank transfer or by cheque in favour of CAPTIVEA, and all bank charges (including rejection charges) incurred by any financial intermediary or initially borne by CAPTIVEA shall be invoiced to the Client.

In case of total or partial late payment, for any reason whatsoever, a late payment penalty will be applied at the contractual rate of 12% per year from their due date, without the need for a reminder in accordance with the law of April 18, 2004, on payment terms and late interest. 

Additionally, the Client shall also be liable to pay a lump-sum indemnity towards recovery costs, fixed at €40. However, if the recovery costs incurred exceed €40, CAPTIVEA may seek additional compensation, subject to providing justification. 

In case of licence renewal, these late payment penalties will apply in addition to any penalties applied by the Editor and automatically re-invoiced to the Client (see Part B, Article 2).

Article 10.5 – Execution and Payment of Services  

The Client will be assisted through the pre-purchase of a "time booklet", which allows them to acquire a reserve of available time from CAPTIVEA for carrying out the various services detailed in the estimate 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 a time booklet is two (2) years from the date of order. 

The applicable hourly rate is the one in force at the time of the order or renewal of the time booklet.

All services carried out under the "Time booklet" mode, excluding functional support, lead to an estimate of the time consumed, in accordance with the procedure specified in the quotation or commercial proposal.

All requests which, in CAPTIVEA's estimation, require a maximum of four (4) hours of intervention are executed without prior validation by the Client. Requests are estimated for information purposes and must be validated in advance by the Client, with the actual intervention time being debited from the time booklet on completion. For any request that is not validated, the qualification time is debited in real time. 

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

When the contracted time booklet is exhausted, and if an additional time booklet has not been renewed in advance with our services to ensure continuity of service to the Client, all additional or outstanding requests from the Client will be processed and invoiced on the basis of the hourly rate in force on the date of completion by our teams (As of 1 January 2021: €135/hour). The invoice will be issued twice a month and will be payable on receipt. 

Services that can be provided under the "Time booklet" mode are service-only. They do not include any travel expenses. 

To ensure the best possible conditions for CAPTIVEA's support, the client agrees to hold a minimum quarterly meeting of thirty (30) minutes between their CAPTIVEA contact person and themselves. 

In case of termination of the Contract, regardless of the reason, the remaining time balance acquired through the time booklet is non-refundable. 

Article 10.6 - Security deposit  

For monthly invoiced services on a deferred payment basis: 

1. Security deposit for monthly invoiced services: 

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

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

The payment of the security deposit will be executed through 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 security deposit will be revised. This revision aims 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 beginning 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 refund of the security deposit will be made by allocating service hours equivalent to the initial amount of the guarantee. 

The request for the refund of the deposited guarantee must be initiated within 12 months following the termination to be considered valid. Beyond this period, the request will be deemed void and cannot be accepted.

ARTICLE 11 – CONFIDENTIALITY

The Parties undertake not to disclose the confidential information of the other Party that they may become aware of in the course of the execution of CAPTIVEA’s services and/or for the implementation of these provisions. Accordingly, the Parties agree to strictly maintain such confidentiality and not disclose to any person any non-public information of which they become aware, both during the term of the Contract and after its expiry. In particular, the Client undertakes not to share with any third party any or all information obtained regarding CAPTIVEA’s software solutions, and CAPTIVEA undertakes not to disclose the Client’s confidential information and to use it only to the extent strictly necessary for the provision of services to the Client. The terms and conditions governing the relationship between CAPTIVEA and the Client are, in particular, confidential.

Information that is publicly available at the time of disclosure or subsequently becomes available without any breach by either Party of its confidentiality obligations, or is lawfully obtained from a third party without any violation of a confidentiality agreement relating to that information, shall not be considered confidential.

ARTICLE 12 – NON-SOLICITATION

During 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 Client undertakes not to solicit, engage or employ, directly or indirectly, any employee or former employee of CAPTIVEA, whether or not such person has participated in the performance of the Contract. In the event of a breach of this clause, the Client shall pay CAPTIVEA compensation equivalent to one year of the gross salary cost (including employer contributions) of the employee concerned.

ARTICLE 13 – COMMERCIAL REFERENCES

By accepting these General Conditions and for the entire duration of the Contract, the Client expressly authorises CAPTIVEA to mention the Client as a reference customer and to reproduce its logo or trademark on CAPTIVEA’s website and commercial documents, in accordance with the model provided by the Client, so as to ensure reproduction in compliance with the Client’s branding and graphic guidelines. Likewise, the Client is entitled to state that it is a customer of CAPTIVEA.

ARTICLE 14 – FORCE MAJEURE

The performance of the obligations incumbent upon each of the parties under these terms shall be suspended in the event of the occurrence of force majeure within the meaning of Articles 1147 and 1148 of the Luxembourg Civil Code and the jurisprudence of the Luxembourg courts. By express agreement, events considered as force majeure include malfunction, restriction or interruption of electrical or telecommunication networks, internet networks, and in particular any breakdowns or service interruptions affecting CAPTIVEA’s service providers or subcontractors. In such a case, the party affected by force majeure shall, promptly and in writing, inform the other party of the duration and the foreseeable consequences of such event. If the force majeure event continues for more than sixty (60) days from the date of the above-mentioned notification, the affected party shall have the right to terminate the Contract automatically and without compensation, by simply sending the other party a registered letter with acknowledgement of receipt, without any further formality.

ARTICLE 15 – ASSIGNMENT

The benefits of the Contract may not be assigned or transferred by the Client to a third party without the prior written consent of CAPTIVEA. However, CAPTIVEA may, at any time, assign its rights and obligations under the Contract, provided it informs the Client. In such a case, CAPTIVEA will be released from any obligation related to the Contract, both for the obligations already performed and those related to the future execution of the Contract by the assignee.

ARTICLE 16 – EARLY TERMINATION

In the event of a breach by either party of its essential obligations (namely, default in payment or failure by the Client to comply with the obligation to collaborate), and if such breach is not remedied within one (1) month after formal notice sent by registered letter with acknowledgement of receipt specifying the existence of the breach, the other party may terminate the Contract automatically by means of a registered letter with acknowledgement of receipt.

Furthermore, in the event of early termination for the Client's breach, CAPTIVEA reserves the right to apply a penalty to the Client fixed at 10% of the price, excluding tax, of the remaining amount payable, without prejudice to any damages that CAPTIVEA may additionally 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 be immediately payable, and the Client must settle them within a maximum period of thirty (30) days upon presentation of the invoice.

ARTICLE 17 – CONSEQUENCES OF TERMINATION OF THE CONTRACT

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

  • Immediately cease using the Software, 
  • Return to CAPTIVEA all items constituting the Software, and any copies thereof, within ten (10) days following termination or expiry,
  • Pay all amounts due to CAPTIVEA within fifteen (15) days.

At the end of the Contract, regardless of the cause, the fees earned for the current contractual period will not be refundable, and the remaining time acquired within the framework of time booklets will not be reimbursed.

Upon termination of the Contract, CAPTIVEA undertakes to return or destroy all items or documents belonging to the Client, which CAPTIVEA may have received in the course of performing the Services, and to retain no copies.

ARTICLE 18 – SEVERABILITY OF CONTRACTUAL PROVISIONS

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

ARTICLE 19 – NON-WAIVER

In the event that either party does not demand or claim performance by the other party of any provision of these terms, such conduct shall not be interpreted as a waiver of such performance and shall not affect the respective rights of the parties.

ARTICLE 20 – APPLICABLE LAW – DISPUTES 

These general conditions are subject to Luxembourg law. In the event of a dispute and in the absence of an amicable agreement, exclusive jurisdiction is granted to the Luxembourg district court, notwithstanding a plurality of defendants or third-party proceedings, even for emergency or conservatory procedures, in summary proceedings or by application.

PART B – SPECIFIC CONDITIONS FOR SOFTWARE LICENSES AND ADDITIONAL MODULES

ARTICLE 1 – ACCEPTANCE OF THE EDITOR'S SOFTWARE LICENCE

Any Software Integration service results in the grant of Software Licences, the number of which is defined in the Contract by the Client. The Client must confirm the terms of the Software licence with the Editor before placing any licence orders through CAPTIVEA. The Client undertakes to use the Software in accordance with the terms and conditions of the end-user licence agreement. Further, the effectiveness of the Contract is subject to the Editor’s acceptance of the Client’s licence order.

ARTICLE 2 – EDITOR'S COMMERCIAL POLICY

Editors with whom CAPTIVEA is partnered are free to establish and modify their commercial policy without notice.

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

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

  • Modify licence prices in case of changes in the Editor's prices, 
  • Automatically invoice late fees applied by the editor in case of delayed payment (payment after the start of the invoiced period)
  • Terminate Maintenance or Support for versions no longer supported by the Editor,
  • Terminate the Contract if it no longer meets the eligibility conditions set by the Editor.

CAPTIVEA will inform the Client as soon as it becomes aware of this change in commercial policy, and will notify them of the effective date of the change or, if applicable, of the termination. Such termination shall not give rise to any compensation or refund of amounts paid under the Contract by CAPTIVEA.

Further, in the event that the concluded Contract has not yet come into effect, and a change in the Editor’s commercial policy, occurring between the conclusion of the Contract and its coming into force, prevents the Contract from being performed, CAPTIVEA may cancel the said Contract without any cost or indemnity.

ARTICLE 3 – DURATION – TERMINATION

Any licence Contract not terminated within the timelines and in the manner specified in Article A.3, whether a total or partial termination, will be invoiced to the Client, irrespective of their actual use of the Software.

ARTICLE 4 – CLIENT'S RESPONSIBILITY

The Client acknowledges that they have verified that the Software is suitable for their requirements. Accordingly, CAPTIVEA cannot be held liable for any inadequacy of the Software it provides for any particular purpose that the Client may envisage or pursue. In all circumstances, use of the Software is under the sole control, direction and responsibility of the Client. Any use of the results obtained through implementation of the Software is exclusively within the competence and responsibility of the Client.

The Client agrees to actively cooperate with CAPTIVEA so that CAPTIVEA can fulfil its commitments towards Software Editors or Additional Module providers, and so that the Licences can be implemented under the conditions specified in the Quote.

ARTICLE 5 – NUMBER OF LICENSES

The subscription agreement specifies the number of user positions (resulting in the creation of "accounts"), which determines the License fees.

The Client undertakes to use the Software or Software Solution for the number of declared users specified in the Contract, in accordance with the definition provided in the end-user licence agreement.

In the event of addition, modification or deletion of user accounts, the Client agrees to inform CAPTIVEA within 48 hours, it being clearly understood that 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 immediately preceding renewal, an administrative charge of a flat amount of two hundred euros (€200) will be levied for any deletion of user accounts.

ARTICLE 6 – PRICE – PAYMENT

The price of Software Licences may be based on a supplier price outside the euro zone; in such a case, it may be expressed in foreign currency, and will be converted into euros on the basis of the applicable exchange rate on the date of invoicing (or renewal) of the Licence.

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

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

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

ARTICLE 1 – BASIC FUNCTIONING

The solution proposed by CAPTIVEA and chosen by the Client is built upon existing Software or Software Solution.

Customisations requested must be achievable through the features offered as standard by the chosen Software Solution (configurations, development tools provided by the system).

The possibilities, usage, and methodologies that can be implemented depend on the capabilities of the Software. This allows for better scalability, consistency across different functionalities, and skill development across the entire system.

Moreover, 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 offered as standard by the Software or Software Solution.

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

ARTICLE 2 – DATA MIGRATION

If specified 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 usable through standard office software (Microsoft Office) or a MySQL relational database.

Unless otherwise stated in the Quote, data migration services do not include a data cleaning, qualification, modification, deduplication, or formatting phase. The Client is responsible for providing a comprehensive, clean data file containing correctly formatted information ready to be inserted into the new software.

The Client understands and agrees that in cases of delivering incorrect or incomplete data files to CAPTIVEA for migration, data migration services will be recharged by CAPTIVEA to account for the additional workload of analysis and implementation.

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 executed by CAPTIVEA internally, before the acceptance testing outlined in Article 3, under normal usage conditions, to ensure the proper functioning of the Software Solution as detailed in the Commercial Proposal.

CAPTIVEA undertakes to correct any anomalies and failures identified following these tests, allocating the necessary time for this task within a time log previously approved by the Client.

ARTICLE 4 – SOFTWARE OR SOFTWARE SOLUTION DELIVERY

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

If the installation is carried out by CAPTIVEA, the Client must also comply with any additional prerequisites communicated by CAPTIVEA.

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

ARTICLE 5 – DELIVERY AND INSTALLATION – ACCEPTANCE TESTING

The delivery and installation of the Software Solution will be carried out as specified in the Contract. Upon delivery of the Software Solution by CAPTIVEA, the Client will verify its conformity with the stated requirements.

ARTICLE 6 – SUSPENSION OF SERVICES

In the event that the Client fails in their obligation to collaborate by not responding in a timely manner 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, 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 requested elements or information are provided. If the Client does not 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 the provision to the Client of Software or Additional Modules published by a Publisher, the Client is granted a 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 the 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, and these General Conditions do not constitute any assignment of exploitation rights to the Client.

Herewith, 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 authorised number of user accounts, and subject to payment of the licence fees as defined in the Contract.

Therefore, the Client shall refrain from making any modification, 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 the Specific Developments have been assigned to the Client, this assignment will only be effective upon the complete payment by the Client of said Developments. Furthermore, CAPTIVEA reserves the right to use the insights gained from studies and/or developments entrusted to it by the Client and to undertake developments for third parties, using elements similar to those it developed at the Client's request. In any case, 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 take the form of a time log, covering the core of the Software or Software Solution.

The Client will inform CAPTIVEA of any failure by submitting a request within CAPTIVEA's Client space, to which access will be provided to the Client's designated contact person.

Based on the received information 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 Editor when it concerns the Software and the Client has an ongoing maintenance contract;
  • Decide on any other solution it deems appropriate to the circumstances.

The costs incurred in implementing this warranty will be the sole responsibility of the Client.

If the Client does not wish to engage CAPTIVEA, the request may be escalated to the Editor’s support team in accordance with the terms and conditions of the Maintenance contract subscribed to in the Quote with the Editor of the Software Solution. If the Client’s request requires intervention by the Editor, it will be handled under the conditions and timelines stipulated by the Editor at the end of its own warranty period. In particular, this may require installation of a fix or an update to the Software Solution, as recommended by the Editor.

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 done through 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 with the use of the Software or Software Solution.

Editor Maintenance: management of the interface with software editors 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 formalised with a time log, commencing from the date indicated in the said 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.

CAPTIVEA may, at its discretion, propose workaround solutions, rectify non-blocking Anomalies by providing patches, or escalate a request to the Editor’s support in accordance with the terms and conditions of the contract subscribed to in the Quote or the commercial proposal with the Editor of the Software Solution.

If the Client’s request requires intervention by the Editor, it will be handled under the conditions and timelines stipulated by the Editor at the end of its own warranty period. In particular, this may require the installation of a fix or an update to the Software or Software Solution, as recommended by the Editor.

CAPTIVEA shall not be held liable for a response considered delayed to a support or maintenance request, or for its inability to rectify an Anomaly notified by the Client, provided it has taken all necessary measures, especially with the Editor of the relevant Software, to resolve the malfunction.

ARTICLE 3 – PROCEDURE

Requests for Support and Corrective Maintenance must be submitted exclusively through CAPTIVEA’s technical platform, in the Client’s personal space. Requests shall be centralised and made only by the technical contact specified in Part 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. at +352 20 33 41 42, excluding public holidays and periods of company closure, or except where otherwise specifically agreed between the parties. They will be prioritised and processed by CAPTIVEA based on their level of urgency. The postal address for contact is 5 Avenue du Swing, L-4367 BELVAUX, Luxembourg. The contact email address is: [email protected] 

ARTICLE 4 – EVOLVING MAINTENANCE

Considering the services already provided to adapt the software to the Client’s requirements, it is expressly clarified that updates and upgrades of the Software are not included in Corrective Maintenance, Managed Services or the Warranty. Any installation of an update or upgrade will be billed separately as an independent Service.

ARTICLE 5 – EXCLUSIONS

CAPTIVEA is discharged from any liability in respect of its obligation to provide maintenance and support for Anomalies arising from: 

  • Inadequacy of User workstation specifications, including memory capacity, disk space, or any computer peripherals necessary 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.
  • Failure or issue resulting from any intervention or manipulation carried out by the Client and/or a third party on the workstations that would affect the proper functioning of the Software.
  • In general, any intervention on the Software or the Solution by a third party not authorised by CAPTIVEA.

Part E - Sale of point-of-sale equipment by CAPTIVEA

  1. CAPTIVEA offers various models of digital and application-based equipment for financial transactions to its customers (hereinafter referred to as “the Equipment”). This section sets out the terms and conditions of ordering, delivery and payment for the Equipment offered by CAPTIVEA.
    Any other document communicated by the Client shall not be binding on CAPTIVEA in relation to the sale of the Equipment. 
  2. The prices of the Equipment will be communicated to the Client in a catalogue. The prices so communicated are exclusive of taxes and shipping charges.
    CAPTIVEA reserves the right to unilaterally revise the prices of the Equipment based on price revisions made by the supplier. The Client will be informed of any change in prices prior to placing an order.
  3. The Client shall place orders with CAPTIVEA by issuing a written purchase order. All orders placed shall be firm and final. Accordingly, no return of Equipment shall be accepted.
  4. Payment for orders shall be made using any mode of payment accepted by CAPTIVEA. Full payment shall be made at the time of placing the order for the Equipment.
  5. All digital and application-related equipment offered by CAPTIVEA is covered by a warranty as per the terms laid down by the supplier.
    CAPTIVEA shall not be liable for enforcing the warranty on the Equipment, which shall remain the sole responsibility of the supplier. However, in the event of any defect covered under the supplier’s warranty, CAPTIVEA will facilitate direct communication between the Client and the supplier for resolution.
    Any claim or warranty request relating to the Equipment shall be addressed directly to the supplier. For the entire duration of the warranty, the supplier will attend the Customer’s site within one (1) working day from the date of sending of the request (D+1).
    Each Client is required to inspect the delivered Equipment upon receipt and, if necessary, record the usual reservations within a period of seven (7) working days, failing which the liability of CAPTIVEA and the supplier shall stand discharged.
  6. To the fullest extent permitted by applicable law, CAPTIVEA disclaims all liability for direct, indirect, incidental, special, consequential, or punitive damages, including, but not limited to, loss of profits, revenue, data, or use, resulting from the use or inability to use the provided Equipment.
    In no event shall CAPTIVEA's total liability to the Client, whether under this section or in connection with it, exceed the total amount paid by the Client for the relevant Equipment.
  • Definitions
    • Direct damages: Immediate damages resulting from a specific event.
    • Indirect damages: Damages resulting indirectly from the initial event.
    • Incidental damages: Damages directly related to the initial event, but not its main consequence.
    • Special damages: Unusual or unforeseen damages resulting from the initial event.
    • Consequential damages: Damages occurring as a direct result of the initial event, but at a later time.
    • Punitive damages: Damages awarded as punishment for wrongful or negligent conduct, intended to discourage the repetition of such wrongful conduct.