Terms and conditions for Topsys Applications
T&C translated to help understanding the real legally valid T&C in French
TOPSYS, SAS with a capital of 60,000 euros, registered with the Paris Trade and Companies Register under number 339 357 733, whose registered office is at 15, rue Taitbout 75009 Paris, hereinafter referred to as « TOPSYS » develops, edits, markets and integrates in SaaS (« Software as a Service ») mode, hotel management software packages intended for independent or franchised hotels, as well as associated services.
The Client declares that it has read the functionalities of the offer proposed by TOPSYS, the potential and the purpose of the Application Service proposed by TOPSYS, and that it has ensured that it meets its needs. In particular, the Client declares that it has received all the information and advice needed to assess TOPSYS’ commercial proposal, and in particular, that it has had the opportunity to request a detailed presentation of the Application Service from TOPSYS. Similarly, the Client has been able to read TOPSYS’ contractual proposal, which – together with these General Terms and Conditions of Sale – has formed the basis of the discussions between the Parties relating to the Contract.
In the absence of a contract signed between the Parties, these general terms and conditions apply to all services related to the marketing and integration of the software packages marketed by TOPSYS to the Client, and take precedence in all circumstances over the Client’s general terms and conditions of purchase. These provisions are therefore supplementary to the will and only apply in the absence of negotiation requested by the Client.
TOPSYS is open to negotiation on each of the clauses provided for below. In the absence of such a request for negotiation and/or the signing of a contract between the Parties, the placing of an order by the Client with TOPSYS implies the unreserved acceptance of these general terms and conditions. Thus, no handwritten annotation by the Client on the quotation, the commercial proposal or on any other contractual document will have any value between the Parties unless TOPSYS agrees in writing on the said modification or mention.
Any special terms and conditions mentioned on TOPSYS’ quotation or commercial proposal (hereinafter « the Order ») take precedence over these General Terms and Conditions of Sale, which remain applicable for provisions that are not contrary to the quotation, commercial proposal or contract signed between TOPSYS and the Client.
1 – DEFINITIONS
Each capitalized term has the meaning indicated in its definition, whether in the singular or in the plural:
« Anomaly » : a malfunction of the Application preventing its use in accordance with its Documentation.
« Application » : all the functionalities of one or more applications marketed by TOPSYS and published in French (and/or any other language defined in the Order Form), designed for several users for the same use, as defined in the Order Form and made available to the Client in their Current Version in the form of executable object code as part of the Application Service; the Updates and the Documentation within the scope of the App definition.
« Order Form « : the Quotation accepted and signed by both Parties, which constitutes the Special Terms and Conditions and formalizes
the subscription to the Application Service by the Client and more generally the conclusion of the Contract between the Parties.
« Customer » : the legal entity identified in the Purchase Order, and signatory to the Agreement.
« Malicious Code » means viruses, time bombs, Trojan horses and other harmful and malicious code, files, scripts, agents and/or programs.
« General Terms and Conditions » or « GTC » : this document, including its preamble.
« Minimum Configuration » : the technical prerequisites on the Effective Date corresponding to the Client’s computer equipment (hardware, web browser, operating system, databases, third-party software, subscription to an internet access service) required for the operation of the Application, and in general, the provision of the Application Service, as described in the Order Form, as well as any related developments during the term of the Contract.
« Contract » : all the contractual documents referred to in these T&Cs.
« Service Agreement » / « SLA » : TOPSYS’ level of service commitment within the framework of the Application Service
« Effective Date » means the effective date of the Agreement signed by the Parties.
« Documentation » : the description of the Application and its instructions for use available and provided, where applicable, in French (and/or any other language indicated in the Order Form) on any medium of TOPSYS’ choice.
« Data » : all content, in particular, information, texts, files, images, graphics, illustrations, data (including Personal Data of the Client and/or Users) and any other type of content, in any type of format, collected and/or produced by the Client and/or the Users, in the context of the use of the Application Service.
« Personal Data « : Data allowing the identification – directly or indirectly – of a natural person.
« Login Data » : the username and password corresponding to each User allowing access to the
Application service.
« Hosting » : the hosting of the Application and Infrastructure Data, and the maintenance of the Infrastructure as part of the Application Service.
« Infrastructure » : all the computer equipment (hardware and/or software) on which the Application is installed and operated; the Infrastructure being shared, unless otherwise stipulated in the Order Form.
« Working day(s) » : from Monday to Friday except public holidays in France.
« Laws and Regulations on the Protection of Personal Data » : the laws and regulations in force within the European Union, the European Economic Area and their Member States relating to the processing of Personal Data, in particular Law No. 78-17 of 6 January 1978 relating to information technology, files and freedoms in its version in force (the « Data Protection Act ») and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (the « GDPR »).
« Maintenance » : the provision of corrective maintenance relating to the Application, assistance in its use under the terms of the Service Agreement, and the provision of Updates as they become available.
« Update » : updates to the Application including corrections of Anomalies – functional and/or technical enhancements of the Application, excluding any Additional Modules.
« Add-on Module » : any add-on of the Application presented as an add-on in TOPSYS’ price list then in force.
« Party(ies) » : individually TOPSYS or the Client, collectively TOPSYS and the Client.
« Scope »: the type and quantity (depending on the applicable metric in the current price list) of Application Services as subscribed to by the Customer; the Scope on the Effective Date being defined in the Order Form.
« Application Service » : the provision by TOPSYS of its Applications to the Client in SaaS mode (« Software as a Service »), including (i) remote and online access to the Application for the duration and scope of the Agreement, (ii) Hosting and (iii) Maintenance, in accordance with the terms of the Agreement.
« User » : any natural person, employee and member of the Client’s staff (except with the prior written authorisation of TOPSYS), placed under the sole responsibility of the Client, designated and authorised by the latter, to access and use the Application Service in strict compliance with the terms and conditions of the Contract, holder of the Connection Data, and for whom the Client has subscribed to the corresponding Application Service.
« Current Version » : the most recent version of the Application.
2 – PURPOSE
The purpose of the Agreement is to determine the terms and conditions under which TOPSYS grants to the Client who accepts it, the personal, non-exclusive and non-transferable right to access and use the Application Service for the Scope and duration of the Contract, in return for the full payment of the corresponding amounts due by the Client to TOPSYS.
3 – CONTRACTUAL DOCUMENTS
The Agreement includes the following contractual documents:
– The Order Form or Special Conditions;
– the General Terms and Conditions, including their preamble;
– any documentation provided by TOPSYS in its capacity as publisher;
and their annex 1.
The Client acknowledges and accepts that the acceptance and signature of the Order Form by both (2) Parties implies the unreserved acceptance of all the contractual documents referred to in this article.
4 – DURATION; RENEWAL OF THE CONTRACT
4.1 The Agreement takes effect on the Effective Date; the Application Service being concluded for the initial firm term of twelve (12) months in the absence of a stipulation to the contrary in the Order Form.
4.2 On the annual expiry date (or Effective Date), the Application Service will be tacitly renewed for a firm period of twelve (12) months, unless otherwise stipulated in the Order Form and/or unless one of the Parties notifies it not to renew it, by registered letter with acknowledgement of receipt with a notice period of ninety (90) days before the expiry date, without any reason for termination being required, neither for TOPSYS nor for the Client.
4.3 Unless otherwise stipulated in the Contract, the Client who, during a contractual period, decides to no longer benefit from the Application Service, acknowledges that it must perform the obligations contracted towards TOPSYS under the Contract, and in particular pay the agreed price for the current contractual period.
5 – PREREQUISITES
The Client declares that it has the means, skills and internal procedures necessary for the use of the Application Service.
In particular, Users must be qualified and have undergone appropriate training in the use of the Application Service.
The Client acknowledges that it has read the Minimum Configuration prior to the conclusion of the Contract, and that TOPSYS is free to change the Minimum Configuration, in particular due to the evolution of the Application Service. TOPSYS will inform the Client of the updates to the Minimum Requirements by any means, and as far as possible thirty (30) days before the implementation of the update concerned.
The Client has made and will be responsible for the acquisition of its technical environment and maintenance (technical support and updates) and in general, for any changes to its technical environment, required. In particular, the Client undertakes to subscribe to the services of an Internet service provider, which is not included in the Application Service. Similarly, it is the Client’s responsibility to verify that it has sufficient bandwidth and network access to access the Application Service, in accordance with the prerequisites communicated by TOPSYS. Similarly, it is the Customer’s responsibility, in addition to the antivirus already present on the Infrastructure, to take all appropriate measures to protect its systems, its network and its own data and/or software from contamination by possible viruses and/or data transmitted during connections to the Application Service. The Client acknowledges that any configuration that does not comply with the Minimum Configuration may lead to a deterioration in the quality of the Application Service, or even its malfunction, for which TOPSYS can in no way be held responsible.
6 – APPLICATION SERVICE IMPLEMENTATION SERVICES AND OTHER COMPLEMENTARY SERVICES
The Application Service does not include any one-off services (configuration, consulting, training, etc.) that may be additional to the Application Service that may be provided by TOPSYS.
7 – START OF THE APPLICATION SERVICE
The Application Service will be deemed to have started and to be invoiced for TOPSYS on the Effective Date defined in the Order Form or on the date of the production (live mode) of the TOPSYS license.
8 – TERMS AND CONDITIONS OF OPERATION OF THE APPLICATION SERVICE
8.1 Terms of access to the Application Service
Access to the Application is made from any computer authorized by the Client and compliant with the Minimum Configuration, using the Connection Data; the identification of the Client and/or Users when he/she accesses the Application Service by means of the Connection Data; it being understood that TOPSYS will invite the owner or manager of the establishment to the final version and that the latter may invite his collaborators and assign them access rights to the functions according to their responsibility.
The User will use the Connection Data each time he connects to the Application Service. The Connection Data is intended to reserve access to the Application to Users, to protect the integrity and availability of the Application, as well as the integrity, availability and confidentiality of the Data as transmitted by the Users.
Connection Data is personal and confidential. In particular, the identifiers may only be changed at the Client’s request, subject to prior notification to the Client.
The Client undertakes to make every effort to keep the Connection Data secret and not to disclose it in any form whatsoever. In general, the Client undertakes to set up control systems adapted to technical developments to prevent any illicit use of the Application or any use contrary to the provisions of the Agreement and not to compromise the security measures adopted by TOPSYS for the Application Service, and to immediately notify TOPSYS of any security incident and/or any misuse or illicit use of the Application Service, observed or suspected, regardless of the modus operandi of the fraud. Similarly, in the event of loss or theft of the Connection Data, the Client shall immediately alert TOPSYS in writing, and shall use the password change procedure set up by TOPSYS allowing him to recover his Connection Data according to a secure procedure.
The Client is solely responsible for the use and custody of the Connection Data. Consequently, it is solely responsible for the access and use of the Application Service by the Users, the identification and authentication of each User, the approval of access by the said Users and the control of access to the Application Service. In this context, the Client shall bear solely the consequences that may result from the use by third parties not authorised under the Agreement, who have been aware of them. TOPSYS is exempt from any liability in the event of irregular or fraudulent use of Connection Data by third parties.
8.2 Proof of access to the Application Service
The use of the Customer’s account by means of the Login Data constitutes its use by the Customer itself and by the Users. The use of the Connection Data irrefutably gives rise to a presumption of use of the Application Service by the Client itself. All elements relating to the use of the account will be kept and archived by the TOPSYS host. TOPSYS may rely, in particular for evidentiary purposes, on any act, file, recording, monitoring report, statistics on any media including the computer medium established, received or stored directly or indirectly in a database by the host. TOPSYS recording systems are considered proof of the date and duration of use.
8.3 Restrictions, limitations and suspension of the Application Service
8.3.1 TOPSYS reserves the right to restrict, limit or suspend the Application Service without notice or compensation if it appears that the Client is using the Application Service for any activity whatsoever that is not in accordance with public order, morality and, more generally, the laws and regulations in force, as well as in the cases referred to in the Service Agreement. In particular, the Application Service provided by TOPSYS includes functionalities allowing the Client to set up communications with persons identified by the Client in order to communicate and/or collect information; the Customer is solely responsible for such communications. TOPSYS shall not be liable for any failure of such communications to comply with applicable laws and regulations, and Customer shall indemnify TOPSYS against any remedies and consequences in connection with the foregoing. Restrictive, limiting or suspending measures are exercised according to the seriousness and recurrence of the breach(es), breach(es) or charge(s) involved; TOPSYS undertakes to inform the Client by any means.
8.3.2 In the event of a suspected or proven security incident, the Client accepts and acknowledges that TOPSYS may restrict, limit or suspend the Application Service, without notice or compensation for the Client, and without the Client being able to claim any damage, except in the event that the security incident is exclusively related to a breach of its contractual obligations of TOPSYS, until the situation has become risk-free again for the network, the system and the infrastructure. TOPSYS shall have the same right to restrict or suspend the Application Service if the Client does not comply with TOPSYS’ security recommendations. TOPSYS undertakes to inform the Client of the measure of restriction, limitation or suspension of the Application Service as soon as possible; it being understood that the additional services generated by such an incident may be subject to additional invoicing.
8.3.3 The Client acknowledges and accepts that the restrictions, limitations or suspensions of service made within the framework referred to in this Article 8.3 may in no way constitute a breach by TOPSYS of its contractual obligations, that these will not give it the right to suspend the performance of the Contract, and that it will not be able to claim any compensation.
9 – RIGHTS GRANTED ON THE APPLICATION
As of the Effective Date, the Client has a non-exclusive, personal and non-transferable right to use the Application for the processing of Data in the sole context of the Application Service and for its own operations only, within the limits defined in the Contract, in particular with regard to the Scope and duration defined in the Order Form, and more generally, in accordance with the requirements of the Documentation and the provisions of the Agreement.
No rights are granted to the Customer other than those expressly granted under the Agreement. In particular, and unless otherwise stipulated in the Contract, the Client shall refrain from:
– sell, rent, sublicense, make available or otherwise transfer and/or share all or part of the rights relating to the Application (or allow a third party to carry out such operations) by any means whatsoever to any third party, including free of charge;
– copy, modify, translate all or part of the content of the Application or create any derivative works of the Application, reverse engineer, decompile, disassemble, recreate all or part of the Application, attempt or allow third parties to perform such acts, except as provided by law;
– perform or disclose the results of tests or performance tests of the Application Service, in particular the Application, without the express prior authorization of TOPSYS;
– access the Application Service in order to create or market a product similar to the Application or a service likely to compete with the Application Service or copy characteristics, functions or graphic elements of the Application,
– use the Application to record or transmit any Malicious Code and/or unlawful, defamatory or otherwise unlawful or tortious material.
In addition, the Client undertakes not to use the Application Service in the context of activities likely to contravene the legislation and/or regulations in force, and in particular, without this list being of any limitation or exhaustive nature, activities whose purpose or content (i) would encourage the commission of any offence, crime or misdemeanor; (ii) promotes false or misleading information; (iii) infringes a person’s personality rights, in particular his or her privacy, the secrecy of correspondence and/or Personal Data.
By express agreement, the Client undertakes to bring the terms and conditions of use of the Application Service to the attention of the Users, and to ensure that they comply with the Contract.
10 – LEVELS OF SERVICE
TOPSYS undertakes to comply with the service levels defined in the Service Agreement (tele-maintenance contract),
TOPSYS may modify at its discretion the technical measures covered by the Service Agreement, provided that they do not alter the quality of the Application Service.
Notwithstanding the above, the Client acknowledges that in the current state of technology – in particular the absence of any guarantee from telecommunications operators – the permanent availability of the Application Service cannot be guaranteed. By express agreement, TOPSYS cannot be held liable under any circumstances for any damage resulting from the poor performance of the services of the said operators.
11 – UPDATES
TOPSYS provides the Client with access to Updates as part of the Application Service as they become available, it being specified that this availability depends on the publisher of the Application and that TOPSYS has no control over this availability.
12 – COLLABORATION
The Client undertakes to collaborate closely and actively with TOPSYS, and in particular to designate in writing one (1) or (2) privileged contact(s) from among its employees with sufficient availability, technical skills and a sufficient level of responsibility to communicate effectively with TOPSYS, in the context of the performance of the Application Service, in particular Maintenance. The Client shall inform TOPSYS in advance in writing in the event of a change of designated contact, and undertakes that the replacement shall have an equivalent level of competence and responsibility; the Client bearing, where applicable, the costs relating to any training of this contact.
13 – INTELLECTUAL PROPERTY
13.1 The Contract does not transfer any intellectual property rights to the Client. The Application remains the exclusive property of the publisher of the Application and therefore of TOPSYS when it is the publisher.
The Client undertakes to keep intact the notices relating to intellectual property appearing in/on the Application and/or its documentation, and in general, not to directly or indirectly infringe the intellectual property rights of TOPSYS and/or the publisher of the Application.
In general, all intellectual property rights relating to the results of any services provided by TOPSYS under the Contract remain its exclusive property.
In addition, the tools, methods and/or know-how used or produced by the Parties within the framework of the Contract remain their respective property.
13.2 TOPSYS undertakes to defend the Client at its own expense against any allegation relating to the infringement in France of an intellectual property right by the Application, provided that:
– the Application and in general the Application Service has been used in full compliance with the provisions of the Contract and the Documentation;
– the Client has notified TOPSYS in writing of any claim of infringement against him/her, as soon as it occurs;
– the Client has allowed TOPSYS to have the sole direction and control of the defence and of any negotiation with a view to an amicable settlement;
– the Client collaborates in good faith in this defence by providing all the information and assistance necessary for this purpose, it being specified that TOPSYS will be the sole judge of the advisability of settling in such a case.
If a complaint, threat of action or action should be directed against the Client, as a result of the use of the Application, or if TOPSYS believes that the latter may be directed, the Client agrees that TOPSYS, at its choice and at its own expense, may modify or replace the relevant element of the Application with a substitute module with an equivalent functional scope in order to put an end to the infringement or obtain the right to Customer to continue to use the relevant item(s), all in accordance with the publisher’s contractual documentation. If TOPSYS considers that none of these measures can reasonably be implemented, TOPSYS reserves the right to terminate the Contract by operation of law, without notice and without any other formality than its notification by registered letter with acknowledgement of receipt addressed to the Client.
TOPSYS will be responsible for the damages to which the Client may be ordered for infringement, by a court decision that has become final or a settlement.
In any event, TOPSYS shall be exonerated from any liability under this article, if the aforementioned allegation is based on (i) any modification of the Application that has not been made by TOPSYS, (ii) any use of the Application (and in general of the Application Service) not in accordance with the Agreement, the Documentation and/or TOPSYS’ instructions, and/or (iii) the continued use of TOPSYS of the Application by the Client and/or Users despite notification of the allegation.
14 – DATA
14.1 The Data is the property of the Client and/or the Users as the case may be and is confidential. TOPSYS is not the custodian and cannot be held responsible for the content and control of the Data and any information transiting or processed on the architecture operated by the Client, which are under the full responsibility of the Client and/or the Users, as the case may be. In particular, TOPSYS cannot guarantee or control the Data, and/or be liable in the event of inaccuracy and/or non-compliance of the Data with applicable laws and regulations and/or public order.
The Client undertakes to provide – under its sole and entire responsibility – fair data that complies with applicable legislation and usage and not to include and/or communicate any data that is illegal and/or infringes the rights of third parties, in particular intellectual property rights.
The Client undertakes to defend, at its own expense, TOPSYS in the event that the latter is the subject of an action for claim relating to the Data and other information provided by the Client, and to pay any compensation that may be due by TOPSYS – if applicable – in compensation for the damage suffered as well as any sums that may otherwise be paid by TOPSYS in this context.
14.2 The terms and conditions relating to the processing of Personal Data under the Agreement are set out in Appendix 1.
14.3 Insofar as the transport of the Data is carried out by a third party operator (an Internet service provider), the latter is responsible for any difficulties that may arise in the context of the transfer of the Data. The Client is fully responsible for the equipment allowing the data processing, which is connected to the Infrastructure and must comply with the Minimum Configuration. Consequently, TOPSYS cannot be held liable for any damage suffered by the Client’s data processing equipment.
14.4 The Client acknowledges that TOPSYS may compile information for statistical purposes and/or anonymous information relating to the execution and use of the Application Service, with a view to creating statistical analyses, with the exception of any data allowing the identification of natural persons, in particular for the security and management of operations within the framework of the Application Service and/or for research and development purposes. In addition, TOPSYS is free to use the Data to comply with legal, accounting and/or regulatory obligations.
15 – CONSTRAINTS RELATED TO THE USE OF THE INTERNET
The Client declares that it is familiar with the Internet, its characteristics and its limitations, and acknowledges in particular that (i) data transmissions over the Internet are only relatively reliable, as they circulate on heterogeneous networks with various characteristics and technical capacities, which are sometimes saturated at certain times of the day and may lead to an increase in response times, or even malfunctions during the use of the Application; (ii) as a result of the provision of the Application to Users, and despite the security measures that TOPSYS has adopted, the Application Service may be subject to intrusions by unauthorized third parties, and may consequently be corrupted; (iii) data circulating on the Internet, despite the existing protection methods implemented by TOPSYS, may be subject to possible misappropriation, and that thus the communication of the Data and more generally of any information, is carried out by the Client at its own risk.
16 – CONFIDENTIALITY
16.1 Each of the Parties undertakes to keep confidential any information and documents concerning the other Party of any kind, in any form or medium whatsoever, to which it may have had access during the performance of the Contract, and to do so with a care at least equivalent to that which it takes to preserve its own confidential information. By express agreement, the terms and prices of the Contract are considered confidential. The Parties undertake to limit access to this confidential information only to those persons authorised to know it for the purposes of the performance of the Contract, and shall take all necessary measures to ensure the secrecy and confidentiality of all information and documents exchanged during the performance of the Contract with regard to their staff, employees and service providers to whom they may have recourse. The Parties shall ensure that this clause is respected by their staff(s), servants and service providers whom they may use.
16.2 The obligation of confidentiality under this Article shall be waived in the event that (i) the information has fallen prior to its date of disclosure or communication or falls into the public domain after its communication or disclosure, without the cause being attributable to the Receiving Party; or (ii) it can be demonstrated that the information is already in the possession of the Receiving Party prior to its communication; or (iii) the information has been received from a third party in a lawful manner, without breach of any obligation of confidentiality; or (iv) either Party is required by applicable law or regulation or by any other legal process or order, to disclose the information.
16.3 The obligation of confidentiality referred to in this article shall take effect retroactively from the opening of the negotiation of the Agreement, and shall end five (5) years after the termination of the Agreement.
17 – COMMERCIAL REFERENCE
The Client authorises TOPSYS and, where applicable, any affiliate, to use its name and logo, as a commercial reference, on any media medium and in particular its website, in accordance with the Client’s practices and graphic charter which will have been communicated to it by the latter, if applicable.
18 – FINANCIAL CONDITIONS
18.1 Prizes; Billing and payment terms
The Client undertakes to pay TOPSYS the price of the Application Service, according to the tariff and the invoicing and payment terms defined in the Order Form for the Scope and duration of the Application Service, including in the event that the Client does not use the Application or if the Client no longer wishes to benefit from the Application Service. The amounts indicated in the Order Form are exclusive of taxes and are subject to taxes, in particular VAT (value added tax) in force on the day of invoicing.
In general, payments due and/or made under the Agreement shall remain due/vested in TOPSYS unless otherwise stipulated in the Agreement, and any payment by set-off shall be excluded.
If the Order includes a turnover commitment and/or a minimum commitment period at the Client’s expense, the Client undertakes to order the license exclusively from TOPSYS for the entire contractual term from the date of its first delivery and to comply with the agreed minimum turnover.
Applicable taxes will be charged extra. Travel and subsistence expenses are the responsibility of the Client.
Unless otherwise specified in the commercial proposal or the quote, each invoice is payable upon receipt of the invoice by bank transfer or SEPA direct debit.
No discount is applied in case of early payment.
In the event of unjustified non-payment of an invoice due to it by the Client, TOPSYS reserves the right to notify the Client by registered letter with acknowledgement of receipt, then, if there is no response within a week, to immediately suspend deliveries or services in progress, until full payment of the price. The Client shall assume all the consequences of such suspension, in particular price increases, delay in deadlines, etc.
Any late payment will also lead to the immediate payment of all remaining sums owed by the Client to TOPSYS, regardless of the subject. In accordance with Article L. 441-9 of the French Commercial Code, failure to pay on the due date may result in the payment of late payment interest calculated from the date of the said due date on the basis of a rate equal to three (3) times the legal interest rate. In addition, in the event of late payment by the Client, a lump sum compensation for recovery costs in the amount of forty (40) euros will be due by operation of law by the latter. Additional compensation will be claimed by TOPSYS if the recovery costs incurred are higher than the amount of the above-mentioned lump sum compensation.
18.2 Price Revision
In terms of price revision, the Client undertakes to accept any repercussions by TOPSYS of any price change practiced by the host of the Application and any service provider involved.
For license fees in rental or Cloud mode, for hosting resources, or for services to access developments (patches, new versions) applicable to perpetual licenses, TOPSYS reserves the right to revise the amount by passing on the new rate in force, in particular in the event of repercussions of the evolution of the SYNTEC index ;
In addition, TOPSYS reserves the right to modify the price, in particular, to reflect the evolution of the SYNTEC index.
19 – RIGHT OF CONTROL
Within the limit of one (1) time per annual period and subject to a notice period of five (5) Working Days, TOPSYS may, at its own expense, carry out or have carried out by any third party or internal department of its choice, subject to professional secrecy or a commitment of confidentiality, a control of the use of the Application Service, in order to verify the Client’s compliance with its contractual commitments.
The control will be conducted during the Client’s working hours, so as not to interfere with the Client’s activities. The Client undertakes to cooperate in good faith and without reservation with any appointed auditor. Thus, it will facilitate the auditors’ access to any document, information or other element useful for the smooth conduct of the audit engagement, and will facilitate their mission, in particular by answering any questions.
If it appears from the audit that the Application Service is used in a manner that does not comply with the Agreement, the Client undertakes to immediately pay TOPSYS the unpaid portion resulting from said use and to bear the costs of the audit carried out within thirty (30) days of the written notification, without prejudice to any other rights to which TOPSYS may be entitled.
20 – MUTUAL DECLARATIONS; PERMISSIONS
Each of the Parties declares (i) that it has all the legal and administrative authorizations necessary for the performance of this Agreement and is responsible to each other, and (ii) that, to its knowledge, there is nothing to prevent it from entering into and performing the Agreement and that the conclusion of the Agreement does not violate the terms of any agreement entered into by one of the Parties with a third party and/or infringes the intellectual property rights and/or the rights of the Parties. the personality of third parties.
21 – WARRANTIES
TOPSYS exclusively guarantees that (i) the Application substantially complies with the specifications set out in the Documentation, when it is used normally as part of the Application Service and in an environment that complies with the Minimum Configuration, and that (ii) TOPSYS implements the appropriate administrative and technical means with regard to the state of the art, in order to preserve security, the integrity and confidentiality of the Data in connection with the performance of the Agreement.
TOPSYS does not guarantee that (i) the functions contained in the Application will meet the Client’s needs, (ii) the operation of the Application Service will be uninterrupted and/or that the Application is free of bugs, errors or any other defects and/or (iii) the results obtained from the use of the Application Service.
22 – RESPONSIBILITIES
22.1 Liability of TOPSYS
TOPSYS is subject to a general obligation of means under the Contract. TOPSYS is liable to the Client for direct, certain and foreseeable damage caused by itself as well as its staff and/or any person it calls upon to assist it in the performance of the Application Service.
Unless TOPSYS is contractually in charge of the backup service, the Client waives the right to seek liability from TOPSYS in the event of damage to files, stored data or any other documents or programs that it may have entrusted to TOPSYS or to which TOPSYS may have had access in the context of the services to be performed.
To prevent any computer risk, TOPSYS implements best practices in terms of computer protection and can therefore not be held responsible for any contamination by any virus of the Client’s files and/or data, any loss of login and password by the Client and any potentially damaging consequences of this contamination.
Under no circumstances can TOPSYS be held liable for any indirect and/or unforeseeable damage, and in particular for business interruption, commercial loss, loss of customers, any commercial disturbance, loss of brand image, loss or damage to data, costs relating to the time spent by its employees and/or service providers, the acquisition or subscription to a third-party service/substitute solution suffered by the Client, its Users and/or by a third party, which will not be entitled to compensation for the Client, even if TOPSYS has been warned of such damage. Except in the case of an infringement action, any action brought against TOPSYS by a third party constitutes indirect damage that does not give rise to the right to compensation.
Under no circumstances can TOPSYS be held liable in the event of fault, negligence, omission or failure on the part of the Client, in particular the transmission of erroneous information, and/or in the event of force majeure.
The Client is informed that TOPSYS is not responsible for the quality, availability and reliability of telecommunications networks, whatever their nature, in the event of data transport or internet access, even when the internet service provider is recommended by TOPSYS.
TOPSYS can in no way be held responsible for an incorrect pricing by the Customer on the online booking platforms for hotel rooms or hotel apartments, including if this error comes from a mishandling of the Software/software package issued by TOPSYS.
Similarly, TOPSYS can in no way be held responsible if the Application is not updated quickly enough + following a change in regulations; (e.g. changes in hotel taxation that must be reflected by the publisher in its software package via a corrective so that the software package complies with French regulations and in particular with tax regulations).
Similarly, TOPSYS can in no way be held responsible for the use of the Application Service in an accounting context, it being specified that the Application Service is neither an accounting software nor an accounting entry assistance software. Any use of the Application Service within an accounting framework is the sole responsibility of the Client.
In the event that TOPSYS’ liability is recognized, the total amount of the compensation that may be charged to TOPSYS – all causes and all damages combined, regardless of the terms of the action or actions brought against TOPSYS by the Client during the same annual period – is expressly limited to the amount paid by the Client to TOPSYS for the Application Service for the current quarter.
The Client acknowledges that the prices of the Application Service reflect the allocation of risks under the Agreement and the economic balance required by the Parties, and that the Agreement would not have been concluded without TOPSYS’ limitations of liability defined in this article, which shall remain in force even in the event of termination or termination of the Agreement.
No action or claim of any kind whatsoever may be formulated or initiated by the Client against TOPSYS more than twelve (12) months after the occurrence of its chargeable event.
22.2 Liability of the Client
The Client is solely responsible for (i) the choice of the Application Service, the use made of it and the results obtained therefrom, which it is up to it to verify, as well as for compliance with the terms of the Contract by the Users, (ii) for the preservation of the confidentiality of the Connection Data, and in particular for its loss or misappropriation; (iii) its technical environment and its developments; (iv) Data transiting through the Application Service, and/or (v) the operation of its internal network and its own computer equipment, the content introduced into the Application, and more generally, damages resulting from unauthorized or non-compliant use of the Application Service and/or any incorrect or incomplete information provided by the Client to TOPSYS.
It is the Client’s responsibility to comply with the conditions, limits of use, and prerequisites applicable to the Application for which it obtains the rights to use via TOPSYS. The Client waives the right to seek liability from TOPSYS in the event of non-compliance with the latter, unless otherwise specified in the quotation or contract signed between TOPSYS and the Client.
Unless otherwise provided for in a contract, it is the Client’s responsibility and direction to make regular backups of all data, files and programs to which TOPSYS may have access.
The Application delivered under the Agreement will be used under the sole control, direction and responsibility of the Customer. During any interventions by TOPSYS, the Client remains the custodian of the hardware, software packages, User Data and Client data, files, programs or databases and, consequently, TOPSYS cannot be held liable for their deterioration or destruction, whether total or partial.
Therefore, the Client is responsible for:
- the choice and acquisition, prior or future, from third parties of hardware, software packages, and software intended for use with the hardware and software and software packages provided by TOPSYS. TOPSYS cannot be held liable for any incompatibilities with the elements ordered under the Contract and the resulting malfunctions and disruptions;
- the project management of its computerization in the event of a multiplicity of suppliers chosen by it;
- compliance with Technical Prerequisites (present and future) in order to avoid harmful consequences such as slowdowns, blockages, alterations of User Data or Client data;
- any consequences, at the level of the Hardware and Software and Software Packages, subject to the Contract, resulting from modifications decided and/or carried out by the Client, of its installation or its environment on its own initiative;
23 – INSURANCE
Each of the Parties declares that it has taken out operating civil liability, professional and fire liability insurance policies with an insurance company that is known to be solvent, to cover all the liabilities it incurs in connection with the performance of the Contract. Each of the Parties undertakes to keep and maintain these policies in force throughout the duration of the Contract, and to justify the subscription of these policies by communicating to the other Party, the insurance certificates, mentioning in particular the nature of the guarantees subscribed, upon written request of the other Party.
24 – FORCE MAJEURE AND EXCLUSION OF UNFORESEEABILITY
The Contracting Parties shall not be liable and the Contract shall be suspended if its performance or the performance of any obligation incumbent on the Parties under the Contract is limited, disrupted, delayed or prevented due to an event constituting a case of force majeure within the meaning of Article 1218 of the Civil Code. Initially, cases of force majeure suspend the performance of the Contract and the Parties consult each other in order to determine the terms and conditions for the continuation of their relationship. If the force majeure event has a duration of more than one (1) month, the Agreement will be terminated automatically, unless otherwise agreed between the Parties. If the impediment is definitive, the Contract is then terminated by operation of law, and the Parties are released from their obligations according to the provisions of Articles 1351 and 1351-1 of the Civil Code. Are expressly considered as cases of force majeure or fortuitous events within the meaning of Article 1218 of the Civil Code, and the applicable case law.
The Parties declare that they measure and accept the risks inherent in the performance of the Contract. By express agreement, the Parties waive the application of the provisions of Article 1195 of the Civil Code.
25 – PROVISIONS RELATING TO THE LICENSING OF SOFTWARE PACKAGES
In the absence of a license agreement signed by the Customer, any license granted by TOPSYS is issued in accordance with the terms of the publisher of the Application, namely TOPSYS in its capacity as publisher.
TOPSYS may be required to provide the text of the license only in English.
The Client expressly acknowledges that it is aware of and accepts the terms and limitations of use imposed by the publisher, the licensing and pricing rules, the conditions of support and version evolution, the terms and conditions for data backup and restoration, as well as the technical prerequisites applicable to the software packages for which it obtains rights of use via TOPSYS.
It is the Client’s responsibility to comply with these conditions.
The rights of use are granted to the Customer for the entire duration of the copyright for SaaS licenses, or for the period indicated on the Order for lease or Cloud licenses. By Cloud license, the Parties mean a SaaS (Software as a Service) rental application, i.e. made available remotely by its publisher through a network and, in general, updated automatically.
If TOPSYS chooses to remove or upgrade a cloud or rental license from its catalog:
- Either an identical replacement license is available from TOPSYS and the new license automatically replaces the old license subscribed, without the need to regularize a new Order with TOPSYS,
- Either a substitute license similar in terms of scope is available: in this case 2 alternatives are possible (i) the parties agree to sign a new Order for this substitute license, or (ii) the Customer terminates the license, without subscribing to the substitute license, with a minimum notice of 3 months,
- Either TOPSYS does not offer a replacement license: the Customer may then terminate the license with a minimum of 3 months’ notice, or in the absence of termination by the Customer, the license ends on the end of availability date announced by its publisher.
To attest to its partnership with TOPSYS on the licenses subscribed to, the Client will systematically specify the latter as its exclusive partner at the request of TOPSYS or the publisher of the Application, by all means made available to it.
Failure to carry out this mandatory referencing will result in TOPSYS terminating the current agreements without delay for the Client’s breach of its contractual obligations.
The provisions applicable to the licenses of which TOPSYS is the publisher and their evolutions (patches, new versions) are systematically the subject of separate contracts.
It is recalled that the publisher retains, in its capacity as author, the intellectual property rights attached to the Application as well as all the prerogatives related to it. The right of use granted to the Client hereunder is personal, non-exclusive, non-transferable, for its internal needs only, and granted for the duration agreed in the Order, and for the Client’s computer equipment and site(s) only.
Use limited to the Customer’s internal needs means use by the Customer’s qualified users. The Client will not acquire any intellectual property rights, or any rights other than those conferred by the publisher.
The Client must use the Application in accordance with its documentation and regularly train its staff, in particular on new versions.
The Client must imperatively comply with the terms and conditions for the evolution of versions of the Application provided for by TOPSYS in order to continue to benefit from the latter’s support services.
TOPSYS cannot be held responsible for errors, malfunctions, bugs present in the proposed Application of which it is not the publisher, as well as in their corrections, evolutions and new versions. The Application is covered by the publisher’s warranty. In its capacity as a simple intermediary, TOPSYS cannot be held responsible for or assume responsibility for the warranty of the software packages marketed, their patches, evolutions and new versions, and this under any circumstances, these supplies being the responsibility of the publisher.
In the same way, TOPSYS will not be responsible for the consequences, whatever they may be, of the installation of the patches, evolutions and new versions provided by the publisher and installed on the Client’s system.
The Client is informed that technological developments, legislative and regulatory developments and customer requests may lead the publisher to make updates. As a result, all or part of the Client’s computer hardware, in its initial configuration, may not support an update. TOPSYS cannot be held responsible for this.
26 – KNOWLEDGE OF THE TERMS OF USE OF THE APPLICATION
The Client who acquires TOPSYS application licenses confirms that he or she has read the terms of use of the TOPSYS Applications and online services, and accepts all of its provisions (including limitations of liability, warranty, etc.) made available at the address: www.topsys.fr and by signing these terms and conditions, which are enforceable against the Client.
27 – NON-SOLICITATION OF STAFF
The Client waives the right to hire or have worked, directly or through an intermediary, any TOPSYS employee, without the express prior consent of the latter. This waiver is valid for the entire duration of the Agreement and for twelve (12) months following its termination for any reason whatsoever.
In the event that the Client does not comply with this obligation, it undertakes to compensate TOPSYS by paying it immediately and on request, a lump sum equal to twelve (12) times the employee’s gross monthly remuneration at the time of his departure.
28 – COMPLIANCE WITH THE T&CS AND THE PUBLISHER’S DOCUMENTATION
Each Party undertakes to comply with the rules and standards referred to in these T&Cs of the publisher.
29 – TERMINATION; CONSEQUENCES OF THE END OF THE CONTRACT
As stipulated in § 4.2: On each expiry date of the contract (or Effective Date), the Application Service will be tacitly renewed for a firm period of twelve (12) months, unless otherwise stipulated in the Order Form and/or unless one of the Parties notifies it not to renew it, by registered letter with acknowledgement of receipt with a notice period of ninety (90) days before the expiry date, without any reason for termination being required, neither for TOPSYS nor for the Client.
30 – CONSEQUENCES OF THE TERMINATION OF THE CONTRACT; DATA RESTITUTION
30.1 At the end of the Contract for any reason:
– the Connection Data is immediately deactivated and the Client no longer benefits from the Application Service;
– subject to the provisions of Article 29.2, all confidential information as well as all elements made available to the other Party shall be returned to the Party concerned;
– all amounts due and payable will continue to be invoiced and must be paid to TOPSYS, without any set-off or deduction being made; the amounts received by TOPSYS remaining vested in the latter;
– all provisions intended to survive the termination of the Agreement, in particular those relating to the limitation of liability and confidentiality, shall remain in force for the period necessary to give them their intended effect.
30.2 In addition, and subject to the full payment by the Client of the sums due under the Contract and the specific stipulations relating to Personal Data, if applicable, the Client may, by notification to TOPSYS by registered letter with acknowledgement of receipt within sixty (60) days of the end of the Contract, ask TOPSYS to return the Data as recorded at the end of the last day of Service
Application under the Contract, in the standard format and on the medium of TOPSYS’ choice, it being emphasized that the Client may proceed at any time during the Contract to extract its Data. The return of the Data will be the subject of a report signed by both (2) Parties.
At the Client’s request and in the context of additional services, giving rise to invoicing at TOPSYS’ rate in force at the time of the Client’s corresponding order, TOPSYS may (i) provide the service of reloading the Data on the system that the latter has selected, it being the responsibility of the Client to ensure the perfect compatibility of the whole and, if applicable, (ii) provide additional related technical assistance services to the Client and/or to the third party designated by the Client. In any event, the Client will actively collaborate with TOPSYS in order to facilitate the recovery of the Data.
31 – MISCELLANEOUS STIPULATIONS
31.1 Independence of the Parties. Each of the Parties acts on its own behalf and under its sole responsibility. The relationship established between the Parties by the Contract is that of independent contractors and the Contract does not intend to establish any relationship between them other than that strictly defined in the Contract.
31.2 Assignment and Subcontracting. The Customer’s rights under the Agreement may not be assigned, sublicensed, sold or otherwise transferred without the prior written consent of TOPSYS. TOPSYS reserves the right to assign or transfer the Agreement to any third party of its choice.
In any event, in the event of assignment or transfer in accordance with the foregoing stipulations, TOPSYS shall be released from any liability under the Contract towards the Client, as of the effective date of the transaction.
In addition, and subject to the specific terms and conditions of subcontracting relating to Personal Data as defined in Appendix 1, the Client expressly authorises TOPSYS to subcontract all or part of its obligations under the Agreement; TOPSYS remains solely responsible for the performance of the Contract.
30.3 Entire Body. The Agreement expresses the entire agreement between the Parties regarding its subject matter. The titles of the articles are purely indicative, and in the event of a difficulty of interpretation between a clause title and a clause of the Contract, the title is declared non-existent. Unless otherwise expressly stipulated, the Agreement may only be modified by means of an amendment signed by a duly authorized representative of each of the Parties. In particular, no other general or specific terms and conditions appearing in the documents sent by the Client may be incorporated into the Contract without the express prior consent of TOPSYS.
31.4 Election of Address. For the performance of the Contract and its consequences, the Parties respectively elect domicile at their registered offices indicated in the Purchase Order. Any change in the registered office or address of one of the Parties shall not be enforceable against the other Party until eight (8) calendar days after having been duly notified to it.
31.5 Notices. To be valid, all notifications under the Contract must have been made to the addressee’s address of domicile, by registered letter with acknowledgement of receipt. Notices shall be deemed to have been received by the Receiving Party on the second Business Day following the first presentation of the registered letter with acknowledgement of receipt.
31.6 Waiver. The fact that one of the Parties does not avail itself or delays in taking advantage of a breach by the other Party of any of the provisions of the Agreement shall not be interpreted as a waiver for the future of the possibility of subsequently invoking such a breach or any other breach.
31.7 Partial nullity. In the event that any of the provisions of the Contract are declared illegal, void or unenforceable pursuant to a legal or regulatory provision or a final judicial decision, the other provisions shall retain their full force and scope, unless the very purpose of the Contract disappears as a result, it being understood that the Parties may mutually agree to replace the invalidated provision(s).
31.8 Language of the Agreement. The Contract is written in French. If a translation of the Agreement is made, only its French version will have contractual value. In addition, all communications between the Parties relating to the performance of the Contract will be made in French.
32 – APPLICABLE LAW; ATTRIBUTION OF JURISDICTION
The Contract is governed by French law. In the event of any dispute or difficulty that may arise between the Parties relating to the validity, formation, interpretation, performance or termination of the Contract, the Parties undertake to cooperate diligently and in good faith with a view to finding an amicable solution before any legal proceedings, except in cases of urgency justifying recourse to the summary judge. In the absence of an amicable solution between the Parties, within thirty (30) Working Days from the date of the referral to TOPSYS by one of the Parties by the other Party, any dispute that may arise between the Parties regarding the validity, formation, performance, interpretation or termination of the Contract, will be under the exclusive jurisdiction of the Commercial Court of Paris, except for disputes relating to a question of intellectual property rights, which will be subject to the exclusive jurisdiction of the Judicial Court of Paris. These courts will have jurisdiction, including in the event of multiple defendants or third party claims, for emergency or protective proceedings, and in the event of summary proceedings or on request.