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Luxembourg
GENERAL TERMS AND CONDITIONS FOR SERVICES

Captivea Luxembourg - Version 4 - Last Updated 23/07/2024  

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 setting out the services to be provided and their prices, as well as, where 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, 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 site, 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, either expressly 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, 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 appearing 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 formed as soon as CAPTIVEA becomes aware of the Client's acceptance of the Estimate or the commercial proposal, whether by post sent to CAPTIVEA's registered office or by email.

In the case of acceptance by email, the Contract shall be formed only from the date on which CAPTIVEA sends an acknowledgement of receipt or read confirmation of the Client's email.

The acceptance of the estimate or the commercial proposal may also be formalised through a certified electronic signature process (such as Docusign or any other 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 shall come into effect on the date of its formation.

Once the Contract has been 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 shall take 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 shall be renewed tacitly on expiry for further 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 taxes 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 and written stipulation in the estimate or commercial proposal, derogating 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 dedicate the time and human, material, and technical resources necessary for completing the Services ordered by the Client, and to perform them in a professional manner and in accordance with best practices, subject to the Client’s proper fulfilment of its own obligations.

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

CAPTIVEA also undertakes to keep the Client regularly informed about the progress of the Services and any difficulties of which it becomes aware, including their consequences, particularly in terms of time and/or cost that may result 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 proven fault on its part, as established by the Client.

It is expressly agreed that CAPTIVEA cannot be held liable for any indirect damages that the Client may suffer, including but not limited to commercial loss, loss of profit, damage to brand image, loss of data, or other similar losses that may result from the performance of the Services, or from the use or inability to use the Software, or from the use of results obtained through use of the Software. Any action brought against the Client by a third party shall constitute indirect damage.

Notwithstanding the above, it is expressly agreed between the parties that CAPTIVEA's liability, in the case of proven fault by the Client, is expressly limited to the amount of sums paid by the Client under the Contract in the twelve (12) months preceding the occurrence of the damage; even 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 timelines and dates indicated in the Estimate or commercial proposal are provided purely for indicative purposes, unless expressly stated otherwise. Therefore, delays in delivery attributable to CAPTIVEA shall not give rise to any penalties or compensation, nor justify any revision of the price, or cancellation or refusal of the order by the Client.

In the event that the delay is attributable to the Client (requests for modification, pending inputs, etc.) or to a supplier of CAPTIVEA, the delivery date shall be rescheduled accordingly, based on CAPTIVEA’s availability, without CAPTIVEA incurring any liability 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 expressed in foreign currencies, in which case it will be converted into euros based on the exchange rate applicable on the day the Licence is invoiced (or renewed).

Annual fees for licence management, 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 is made by bank transfer or by cheque payable to CAPTIVEA, with all bank charges (including rejection fees) incurred by a financial intermediary or paid by CAPTIVEA being 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 will also be subject to a lump-sum 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, subject to justification.

In the case of licence renewal, these late payment penalties will apply in addition to those 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 supported by the pre-purchase of a "time booklet", allowing them to acquire a reserve of available time from CAPTIVEA for the completion of 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 performed under the "time booklet" mode, excluding functional support, result in an estimate of the time consumed, according to the procedure indicated in the estimate or commercial proposal.

All requests which, in CAPTIVEA’s estimation, require a maximum of four (4) hours of work will be carried out without the Client’s prior approval. The estimated time for requests is given for information purposes only and must be approved in advance by the Client, with the actual time spent on the intervention being debited from the time booklet at the end of the work. For any request that has not been validated, the qualification time is debited in real time. 

The time spent on a request is calculated in blocks of fifteen (15) minutes. 

Once the contracted time booklet has been fully used, and if no additional time booklet has been renewed in advance with our services to ensure continuity of service to the Client, all additional or pending requests from the Client will be handled and billed at 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 once every two months and will be payable upon receipt. 

Services that can be delivered 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 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 10.7 - Billing for Maintenance Service

After the services have been delivered, if corrections are found to be necessary, CAPTIVEA will raise an invoice for the additional time required. The Client will be informed in advance of the extra hours required.

Article 10.8 - Flat Rate Warranty

CAPTIVEA offers a flat rate warranty option covering post-delivery corrections. To benefit from this service, the Client may subscribe to it for an additional 25% of the initial service amount. This warranty option must be expressly subscribed to by the Client and is not included by default. In the absence of subscription to this option, any post-delivery correction will be billed based on the time spent.

Article 10.9 - Annual price revision for pay as you go

For pay-as-you-go arrangements with monthly billing based on the time spent on the project, service rates are reviewed annually on the contract anniversary date.
This price revision will entail a maximum increase of 5% on the initial contract price.

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 commit to strictly observe this confidentiality and not to disclose to anyone 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 communicate to any third party any or all of the information obtained regarding CAPTIVEA's software solutions, and CAPTIVEA undertakes not to disclose the Client's confidential information and to use it only as 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 legitimately obtained from a third party without any violation of a confidentiality agreement concerning 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 agrees that it shall not solicit, hire or employ, directly or indirectly, any employee or former employee of CAPTIVEA, whether or not such employee has participated in the execution of the Contract. In the event of any breach of this clause, the Client shall pay CAPTIVEA compensation equivalent to one (1) year of the concerned employee’s gross cost to company (including employer contributions).

ARTICLE 13 – COMMERCIAL REFERENCES

By accepting these General Conditions and during the term of the Contract, the Client expressly authorises CAPTIVEA to mention the Client as a reference client and to reproduce the Client’s logo or trademark on its website and commercial documents, in accordance with the model provided by the Client, so as to ensure reproduction in compliance with the Client’s brand guidelines. Similarly, the Client may represent itself as a client of CAPTIVEA.

ARTICLE 14 – FORCE MAJEURE

The performance of the obligations incumbent on each of the parties under these terms shall be suspended in the event of an occurrence of force majeure within the meaning of Articles 1147 and 1148 of the Luxembourg Civil Code and the jurisprudence of Luxembourg courts. By express agreement, events considered as force majeure include the malfunction, restriction, or interruption of electrical or telecommunication networks, internet networks, and in particular any breakdowns or service interruptions at the providers or subcontractors of CAPTIVEA. In such a case, the party affected by force majeure shall promptly and in writing inform the other party of its duration and the foreseeable consequences. If the force majeure event exceeds sixty (60) days from the notification mentioned above, the affected party shall have the option to terminate the Contract automatically and without compensation, with no further formality than sending the other party a registered letter with acknowledgement of receipt.

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 on the part of the Client to comply with the obligation to collaborate), and in the absence of a remedy within one (1) month after formal notice by registered letter with acknowledgement of receipt notifying the existence of the breach, 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 to the Client fixed at 10% of the price excluding taxes 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 components constituting the Software, along with any copies thereof, within ten (10) days from the date of 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 elements 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 circumstance affecting, for any reason whatsoever, the existence of a contractual stipulation, including deletion, impossibility of performance, or invalidation by a court order, where such stipulation is severable from the other provisions herein, shall not affect the binding nature of the performance by the parties of the other stipulations in these general terms and conditions.

ARTICLE 19 – NON-WAIVER

If either party does not enforce, or does not demand enforcement by the other party, of any provision of these terms, such conduct shall not be construed as a waiver of such enforcement 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 order through CAPTIVEA. The Client undertakes to use the Software in accordance with the terms and conditions of the end‑user licence agreement. Furthermore, 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 any change 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 such a change in commercial policy, and will notify the Client of the effective date of the change or, as the case may be, of the termination. Such termination shall not give rise to any compensation or refund of amounts paid under the Contract by CAPTIVEA.

Furthermore, if the Contract that has been formed has not yet come into effect, and a change in the Editor’s commercial policy, occurring between the formation of the Contract and its coming into force, prevents the Contract from being performed, CAPTIVEA may cancel the said Contract without any cost or compensation.

ARTICLE 3 – DURATION – TERMINATION

Any Licence contract that is not terminated within the timelines and in the manner specified in Article A.3, whether such termination is in full or in part, will be invoiced to the Client, irrespective of the Client’s actual use of the Software.

ARTICLE 4 – CLIENT'S RESPONSIBILITY

The Client acknowledges that they have verified that the Software is suitable for their needs. Consequently, CAPTIVEA shall not be held liable for any inadequacy of the Software it provides in relation to specific purposes that the Client may envisage or pursue. In all cases, 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 falls solely within the competence and responsibility of the Client.

The Client agrees to actively collaborate with CAPTIVEA so that CAPTIVEA can fulfil its commitments towards the 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 only for the number of users declared 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. The Client acknowledges 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 License fees already paid. During the three (3) months preceding renewal, an administrative fee of a flat amount 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 outside the euro zone; in such a case, it may be expressed in foreign currencies and will be converted into euros based on the applicable exchange rate on the date of invoicing (or renewal) of the Licence.

Annual fees for 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.

The requested customisations 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.

Further, 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 options 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 conducted before the installation of the Software or Software Solution. This service will be specified in the Quote.

If applicable, tests will be conducted 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 have made any necessary adjustments to accommodate the Software or Software Solution within their information system, following 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 conducted as specified in the Contract. Upon delivery of the Software Solution by CAPTIVEA, the Client will ensure its conformity to the expressed needs.

ARTICLE 6 – SUSPENSION OF SERVICES

If the Client fails to fulfil their obligation to cooperate by not responding in a timely manner to CAPTIVEA’s requests necessary for the proper performance of the Services, CAPTIVEA may, after sending a final written reminder to the Client asking them to provide the requested information or documents within a maximum period of 30 days, decide to suspend the Contract with immediate effect. This suspension shall take effect from the date on which it is notified to the Client and shall remain in force until the requested information or documents are provided. If the Client does not respond within a period of three (3) months from the date of notification of the suspension, CAPTIVEA may terminate the Contract without any further notice. The provisions of Article A.16, paragraph 2, shall apply.

ARTICLE 7 – INTELLECTUAL PROPERTY

Where the Contract provides for the supply to the Client of Software or Additional Modules published by an Editor, the Client is granted a right to use this Software or these Additional Modules, within the limits and conditions set out in the end-user licence agreement proposed by the Editor, and ownership of the said Software and Modules shall remain with the Editor.

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.

Accordingly, 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, such assignment shall only take effect upon full and final payment by the Client for the 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 carry out developments for third parties using elements similar to those it developed at the Client’s request. In all cases, CAPTIVEA remains the sole owner of the methods, tools and know-how used in the course of providing 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 shall inform CAPTIVEA of any failure by submitting a request through CAPTIVEA’s Client space, access to which 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 by implementing this warranty will be the sole responsibility of the Client.

If the Client does not wish to engage CAPTIVEA, a request may be escalated to the Editor’s support in accordance with the terms and conditions of the Maintenance contract subscribed to in the Quote with the Editor of the Software Solution. In the event that the Client’s request requires intervention by the Editor, it will be handled under the conditions and within the timelines provided by the Editor at the end of its own warranty. In particular, this may require the 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 in accordance with the date indicated in the said log.

CAPTIVEA will provide Corrective Maintenance services for the Software or Software Solution, as well as Support, following the procedure outlined in Article 3.

CAPTIVEA may, at its discretion, propose workaround solutions, rectify non-blocking Anomalies by sending patches, or escalate a request to the support team of the Editor, 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.

In the event that the Client's request requires intervention by the Editor, it will be handled under the conditions and within the timelines specified 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 cannot be held liable for a response considered delayed to a support or maintenance request, or for its inability to resolve an anomaly notified by the Client, provided it has implemented all necessary measures, especially with the Editor of the relevant Software, to resolve this 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 should be centralised and sent only by the technical contact specified in Part A - Article 6. Requests are received and processed from Monday to Friday, from 9:00 AM to 12:00 PM and from 2:00 PM to 5:00 PM at +352 20 33 41 42, excluding public holidays and periods of company closure, or as otherwise specifically agreed between the parties. They will be prioritised and processed by CAPTIVEA based on their degree of urgency. The contact postal address 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 within 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 maintenance and support obligations 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.
  • Any failure or issue resulting from an intervention or handling carried out by the Client and/or a third party on the workstations, which affects the proper functioning of the Software.
  • In general, any intervention by a third party not authorised by CAPTIVEA on the Software or the Solution.

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 applicable to ordering, delivery, and payment for the Equipment offered by CAPTIVEA.
    Any other document shared by the Client shall not be binding on CAPTIVEA with respect to the sale of the Equipment. 
  2. The prices of the Equipment will be communicated to the Client in a catalogue. The prices indicated are exclusive of applicable taxes and shipping charges.
    CAPTIVEA reserves the right to unilaterally revise the prices of the Equipment based on price changes made by the supplier. The Client will be informed of any price revision prior to placing an order.
  3. The Client shall place orders with CAPTIVEA by issuing a written purchase order. All orders placed are firm and final. Accordingly, no return of Equipment will be accepted.
  4. Payment for orders shall be made using any payment mode accepted by CAPTIVEA. Full payment shall be made at the time of placing the order for the Equipment.
  5. The entire digital and application-related equipment proposed by CAPTIVEA is covered by a warranty in accordance with the terms established by the supplier.
    CAPTIVEA shall not be liable for the enforcement or performance of the warranty on the Equipment, which shall remain the exclusive responsibility of the supplier. However, in the event of any defect or anomaly covered by the supplier's warranty, CAPTIVEA will facilitate direct communication between the Client and the supplier for such matters.
    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 visit the Customer’s site within D+1 working day from the date of sending of the request.
    Each Client is required to inspect the delivered Equipment upon its arrival and, where necessary, to raise standard reservations within a period of 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 any direct, indirect, incidental, special, consequential, or punitive damages, including but not limited to loss of profits, revenue, data, or use, arising out of or in connection with the use of, 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 imposed as a punishment for wrongful or negligent conduct, intended to deter the repetition of such wrongful conduct.