General conditions of subscription
0 – Introduction
The purpose of this contract is to define conditions for the provision of services associated with the Perfony solution, hereinafter referred to as the “SERVICE” provided by PERFONY, a simplified joint stock company with a capital of €13,948, whose registered office is located at 91 rue du Faubourg Saint-Honoré, 75008 Paris, registered with the Trade and Companies Register (RCS) of Paris under number 533 868 873 (hereinafter also referred to as “PERFONY”) on the one hand and the subscriber (“THE SUBSCRIBER”), person or legal entity, designated on the order form, subscriber of the subscription. PERFONY subscriptions are marketed according to various price bands presented in the PERFONY price sheet, available on the site https://www.perfony.com, hereafter called “the SITE”, in its heading entitled “PRICES”. The relations between THE SUBSCRIBER and PERFONY are governed by the herein subscription conditions and the PERFONY price sheet.
CHAPTER 1: SUBSCRIPTION TO A PERFONY CONTRACT
1 – Definitions
“THE SUBSCRIBER” means the natural or legal person who subscribes to and activates the SERVICE provided by PERFONY and assumes responsibility for payments for such SERVICE. “USERS” designates the physical person(s) invited to join the SUBSCRIBER’s workspace and can therefore access the service. “iPERFONY” designates the private workspace made available by PERFONY. “ADMINISTRATOR” designates the USER associated to THE SUBSCRIBER who manages the private Perfony space and who determines the access rights of each USER. “CONTENT” means any data, in any form whatsoever, added by USERS in their Perfony space. “FOLDER” means a set created in iPERFONY through the fonctionnality “folder” enabling to gather users, actions, files in order to collaborate effectively.
2 – General remarks
The SUBSCRIBER is the person or legal entity that subscribes to the contract agreement. The following subscription conditions, which may be revised at any time, apply to all subscriptions taken out with PERFONY, in order to use the Perfony solution and to access THE SUBSCRIBER’s dedicated spaces. Any subscription contract may be preceded by a free trial period of fifteen (15) days. The subscription is equivalent to a temporary license to use the Perfony solution for a given number of users. Specific subscriptions and services may also be offered by PERFONY depending on the type of service(s) used and the number of THE SUBSCRIBER employees. The herein general conditions of subscription prevail over any other differing conditions, except special conditions specifically agreed between PERFONY and THE SUBSCRIBER. Any subscription implies the SUBSCRIBER’s full and unreserved adherence to these general conditions.
3 – Ways of subscribing to a Perfony contract
– On-line subscription – The creation of a dedicated private workspace iPERFONY can be done online according to a procedure available on the website https://www.perfony.com. THE SUBSCRIBER is required to provide information relating to his identity and the activity of his company, to choose the offer and options among those proposed by PERFONY and to accept the existing general conditions of subscription. After confirming the information provided by the SUBSCRIBER, PERFONY will then send an e-mail confirming the subscription and the reservation of the subdomain that will be dedicated to the SUBSCRIBER, as well as their identifier and password for access as administrator. The administrator can then create as many users as he/she wishes. Each registered user will receive their own identifier and password by email. This information is strictly personal, confidential and non-transferable. Each SUBSCRIBER is the sole party responsible for the use of their identifiers and those of the users of his subdomain. The use of the solution iPERFONY is free of charge during 15 (fifteen) days after the online subscription and at any time if the limit of 5 (five) active FOLDERS is not exceeded. A folder is active if it is not deleted and the definition of folder includes the folder “my todo” and any sub-folder. – Order form – After the free trial period and/or if the limit of five active folders is exceeded, the ADMINISTRATOR will receive a commercial offer that he will return signed with a purchase order. This commercial offer will take into account any additional needs that may have occurred in any prior discussion between the ADMINISTRATOR and PERFONY. The commercial offer includes the cost and length (at least a year) for the use of iPERFONY as well as any additional services such as training, set-up, specific development. At reception of the purchase order, PERFONY will raise the invoice.
CHAPTER 2 : THE CONTRACT PERIOD
4 – Date of agreement and start of the contract
The subscription contract begins on the 1st of the month from the day of registration of the order with PERFONY and gives access to private Perfony spaces, in the standard way, i.e. for a user (name, first name, function). Subscription fees are due from the beginning of the registration month. The invoice is issued and sent during the month of registration. Any consultation of the personal spaces of the website is subject to a valid subscription or a free trial period in progress. Access to the subdomain is done by checking the user’s identification based on the information given by his or her administrator.
5 – Duration and renewal of the subscription agreement
Subscription to a Perfony license is annual and the amounts invoiced are due as of the 1st day after the trial period and when the limit of 5 active folders is exceeded. Contract renewal is done by automatic extension each anniversary and is formalised by sending an invoice corresponding to the subscription amount for the coming year. THE SUBSCRIBER may terminate their PERFONY contract at any time by registered letter with acknowledgement of receipt giving 30 (thirty) working days’ notice, but the sums due under the ongoing annual subscription remain due.
6 – Perfony’s obligations and responsabilities
PERFONY undertakes to implement all the necessary resources to enable THE SUBSCRIBER to benefit from a reliable, fast access to use the software and the various contents of its subdomain. The subscription provides a maximum bandwidth of 1mbps and a storage capacity of 50GB by Perfony. If PERFONY’s technical services observe overruns, a specific supplemental agreement will then be established between PERFONY and THE SUBSCRIBER within one month of PERFONY’s observation of this overrun. The information contained on the website is accessible 24 hours a day, 7 days a week, with the exception of accidental interruption or any interruption necessary for the proper functioning of the service. Such a break in service of less than 12 hours shall not give entitlement to any compensation. PERFONY cannot be held responsible for:
- the disruption of communication networks due to cases of force majeure within the meaning of the case-law of the Court of Cassation.
- the cessation of licenses to operate the service following a decision by the public authorities or unforeseeable circumstances,
- the services delivered by independent service providers, to which the SUBSCRIBER may have access, in particular via the Internet. Any complaint concerning these services must be addressed directly to the providers who provided them,
- the installation and operation of terminals used by the subscriber and not provided by PERFONY,
- any flaws or viruses that may be transferred to the SUBSCRIBER’s computer installation as part of their use of the software or website,
- any interruption to the operation of the website.
Generally speaking, PERFONY cannot be held liable, either towards third parties or towards the SUBSCRIBER for the direct or indirect consequences linked to improper use of the software or the site by the SUBSCRIBER. Consequently, PERFONY may not be held responsible, by reason of an express or implied obligation, as civilly liable towards the SUBSCRIBER or third parties for any direct or indirect damage due to using information, and in particular, as a result of inaccurate or incomplete information, a delay in putting the SERVICE online. PERFONY cannot be held responsible for the relevance of the information provided by the SUBSCRIBER and users on their personal spaces. Finally, in no event shall PERFONY be liable for any damages of any kind, including but not limited to operating loss, loss of data or any other financial loss resulting from the use of, or the inability to use subscriptions that are not directly attributable to it.
7 – Subscribers obligations
THE SUBSCRIBER undertakes to respect the number of users for which he has subscribed. THE SUBSCRIBER undertakes to pay the fee for the services he has subscribed to from PERFONY in accordance with the terms and conditions set out in these general terms and conditions of subscription unless there are specific exempting agreements in place. THE SUBSCRIBER undertakes to inform PERFONY within fifteen (15) days of any modification to the information it provided when subscribing to the contract, and in particular of any change of address or bank details. THE SUBSCRIBER declares that he/she accepts the costs as well as the limits specific to any connection to the Internet network. THE SUBSCRIBER is responsible for accessing the services of the internet site under good technical conditions – hardware, software, telecommunications – in order to ensure, in particular, that all backup and protective measures are taken as well as protection against possible unauthorized access. THE SUBSCRIBER may under no circumstances transfer or transmit to a third party, whether for a fee or free of charge, in any form whatsoever, the benefits of this agreement without the prior written consent of PERFONY. The software and the presentation of the contents to which PERFONY gives access within the framework of the subscriptions referred to herein are protected by copyright and database law, in accordance with the provisions of the Intellectual Property Code. THE SUBSCRIBER is therefore prohibited from reproducing, publishing, distributing or selling, in any manner whatsoever, the software or the presentation of the contents to which they have access. In particular, the software made available by PERFONY may not be copied, adapted, translated, made available, distributed, modified, disassembled, decompiled, or used in combination with any software other than those offered by PERFONY. THE SUBSCRIBER further undertakes to indemnify PERFONY against any claims, costs or other expenses against or chargeable to PERFONY, which may be formulated against PERFONY directly or indirectly, on the grounds of a real or alleged infringement of the rights of a third party, caused during the use of the services, in particular as regards the content generated and shared by users.
8 – Prices for services and contractual amendments
Access to Perfony services is billed annually and per user based on each user’s subscription levels. PERFONY may request an additional set-up fee from THE SUBSCRIBER. These fees appear on the order form and must be validated by THE SUBSCRIBER. Prices (unless otherwise indicated) are expressed in euros. The description of the services included with each of the PERFONY subscription offers, as well as details of the optional services that can be subscribed to, can be found in the PERFONY price sheet available on the PERFONY website at https://www.perfony.com/fr/tarifs/. Price changes may apply to all subscriptions, including those in progress. These changes take effect the month following the introduction of the changes. PERFONY will then inform THE SUBSCRIBER of any contractual change and in particular of any increase in the prices of the offer purchased by THE SUBSCRIBER, one month before it takes effect. In the event of such a contractual modification and in particular of an increase in the prices of the standard offer or of an optional service that the Subscriber has chosen, the Subscriber may request the termination of the subscribed service under the conditions of Article 16.
9 – Additional options
THE SUBSCRIBER may choose to change his subscription package at any time and in particular to subscribe to additional options to the standard package. The cost of each of the additional options is specified in the PERFONY price sheet and these modifications are invoiced in accordance with the current PERFONY price sheet.
10 – Invoicing for services
The contract is invoiced annually for commissioning and start-up costs. Invoices are payable in euros, within the maximum period specified on the invoice and according to the method of payment chosen at the time of subscription. Any additional services provided during the subscription period will be invoiced and sent within the month the service is provided. Any additional paid subscription occurring during the main subscription will be invoiced pro rata with a principle of co-terminus with the main subscription. The invoice is sent in the month of the additional subscription. Invoices include: Charges for the subscription taken out by the subscriber for the given billing period, Billing for additional services. Any delay in payment, after formal notice that has had no effect, shall entail the automatic application of a surcharge equal to 5 times the current legal interest rate on the date of invoicing. This increase is calculated on the amount, excluding tax, of the sums due, by periods indivisible by 15 days as from the 1st day of late-payment. PERFONY shall keep at the SUBSCRIBER’s disposal all supporting elements of the invoice, according to existing technology.
11 – Subscriber complaints
Any complaint must be addressed, by mail, to PERFONY customer services, whose address appears on the customer’s invoice, within a maximum period of one year from the day of the occurrence of the event giving rise to the complaint. In addition, any action brought after one year from the date of the occurrence of the event giving rise to the complaint shall be considered time-barred.
12 – Powers of jurisdiction and applicable law
These subscription conditions, as well as any dispute that may arise from the commercial relationship maintained by PERFONY and its customer, are subject to French law. The parties agree to submit any dispute that may arise between them to a commercial mediation procedure. If no amicable settlement is reached within one (1) month of the first mediation meeting, the parties may submit their dispute to the Commercial Court of Paris (whether substantive law).
13 – Intellectual proprety
This contract does not grant THE SUBSCRIBER any right, title or share in PERFONY’s intellectual property rights: logo, software development, database or trademarks. PERFONY reserves the right to use or disclose any comments, references, quotations, THE SUBSCRIBER logo, without any obligation of compensation for these articles, in any media worldwide including its own website. In particular, THE SUBSCRIBER accepts that the name of his company be listed on the PERFONY site and used as a reference. Clients who do not wish to be included in the published directory should make a specific request to email@example.com. THE SUBSCRIBER remains the exclusive owner of all the CONTENT of their Perfony.
14 – Information technology and rights
The Customer is responsible for any files and personal data used on his private spaces when using the PERFONY software and services. The SUBSCRIBER has the responsibility of data processing as stipulated in the French law n°78-17 of January 6th, 1978 relating to data processing, files and rights, as modified in August 2004. The Customer thus undertakes to comply with the obligations incumbent upon him under this law. Any of the personal data collected by PERFONY in the context of registration are also processed in accordance with the provisions of law no. 78-17 of 6 January 1978 relating to information technology, files and rights. Personal information concerning the subscriber or users, if applicable, collected during the subscription process may lead to the exercise of a right of access, rectification and objection, by contacting PERFONY customer service, 91, rue du Faubourg Saint Honoré 75008 Paris – France, or by any other means indicated by PERFONY, with proof of identity. PERFONY may use this information, in particular any traffic data, in order to develop and market its products and services. PERFONY may also use this information in the context of marketing operations, by sending the subscriber or users, where applicable, messages relating to its products and services, using any format whatsoever and in particular by e-mail.
CHAPTER 3: SUSPENSION AND TERMINATION OF THE CONTRACT
15 – Suspension or termination of service by Perfony
PERFONY reserves the right to terminate any subscription, without compensation, in the event of any breach by the subscriber, to any of the provisions mentioned in these terms of subscription, not rectified within fifteen (15) days after formal notice. This will be the case in particular in the hypothetical event of improper use of the subscription. In the event of total or partial non-payment of an invoice on the due date of payment as indicated on the invoice and after formal notice by regular letter, which remains without action taken during the fifteen (15) day period, the service may be suspended or terminated automatically by PERFONY. The service will also be suspended or terminated under the same conditions if the subscriber fails to comply with any of the obligations set forth in Article 7.
16 – Termination of the contract by the subscriber
THE SUBSCRIBER may terminate his contract at any time subject to written notification by registered letter with acknowledgement of receipt, and subject to thirty (30) days’ notice. Amounts due for past services or current annual subscriptions remain due.
17 – CONTRACTUAL APPENDIX – GDPR (General Data Protection Regulations)
PURPOSE This appendix is designed to meet the requirements of the GDPR (General Data Protection Regulations) as part of the relationship between PERFONY and its USERS. This document applies only in the case where we process personal data at the request of USERS under the conditions laid down in the GDPR. This document is considered as a contractual annex that is binding on the parties and does not modify the terms of the existing contracts. In the event of any discrepancy between this document and the concluded contract(s), this annex shall take precedence with regard only to the processing of personal data.
Throughout this annex, the following terms have the following meanings between the parties:
- “personal data” refers to any information relating to an identified or identifiable physical person, directly or indirectly, in particular by reference to an identifier, such as a name, an identification number, location data, an online identifier, or to one or more elements specific to his physical, physiological, genetic, mental, economic, cultural or social identity;
- “processing of personal data” refers to any process or set of processes involving personal data, whatever the process used, such as collection, recording, organisation, storage, adaptation or modification, retrieval, consultation, use, communication by transmission, dissemination or any other form of making available, matching or interconnection, as well as blocking, deletion or destruction;
- “violation of personal data” refers to a security breach resulting in accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or unauthorized access to, personal data transmitted, stored or otherwise processed. DEFINITION OF PARTIES
In the context of the GDPR, and for the proper application of the terms herein, the USER acts as “the party responsible for processing ” and PERFONY acts as ” the subcontractor “.
DEFINITION OF THE DATA PROCESSED
The data processing covered by this annex is that of data declared by the USER.
The SUBSCRIBER undertakes to:
- comply with the GDPR (General Data Protection Regulations) in his capacity as the party responsible for processing provide all documented instructions necessary for the proper execution of our services;
- inform about any new developments in data processing; provide the coordinates of its DPO (Data Process Officer) or GDPR contact;
- notify data breaches to the relevant authority; comply with data protection obligations;
- provide, where necessary, the information required to keep our data processing records.
- guarantee to have all the necessary rights to allow us to process the data.
We only process the USER’s personal data in accordance with the documented instructions that the USER communicates to us. The documented instructions are communicated to us in writing, in any form chosen by the customer. The instructions provided may in no way have the purpose or effect of modifying the product itself or the service offered. We are obliged, in accordance with the GDPR, to inform the USER immediately if, in our opinion, an instruction from the USER constitutes a violation of these regulations or other provisions of EU or French law relating to data protection.
The SUBSCRIBER authorizes us to use subcontractors. If the contract is entered into between us and the subcontractor, we guarantee that the subcontractor is itself in compliance with the GDPR. In the event that the SUBSCRIBER wishes to contract directly with the subcontractor, it is the SUBSCRIBER’s responsibility to verify its compliance with the GDPR.
We make our staff aware of the protection of personal data and ask them to respect, when the service lends itself to it, a code of good conduct.
Each Party shall implement the necessary technical and organisational measures with regard to the obligation to secure and protect personal data. In case of breach of security, we will implement the necessary measures and we undertake to communicate to the SUBSCRIBER all the necessary elements to proceed, if necessary, to the notifications to the CNIL (National Commission for Information Technology and Civil Liberties – the French Data Protection Authority) CAUTION: the USER must always ensure that the access codes and user profiles are correctly set. INSPECTION BY THE CNIL (National Commission for Information Technology and CivilLiberties – the French Data Protection Authority) The Parties shall inform each other of any inspection by the CNIL and shall take the necessary steps to answer any questions raised by the inspection authority.
The SUBSCRIBER may audit our compliance once a year by sending us a questionnaire for this purpose. We will answer as soon as possible. We are exempt from audit for all services receiving a certificate or a quality label from the CNIL
In accordance with section 82 of the GDPR, our liability as a subcontractor is limited to the following: we do not comply with our specific obligations under the GDPR as subcontractors or; we act outside your documented instructions or; we act contrary to your written instructions. In all cases, compensation for damages is part of our service contract.
In the event of regulatory changes or recommendations from the CNIL, we reserve the right to modify this appendix. Any new annex shall be notified before its entering into effect.