Special Terms and Conditions of Use
PREAMBLE
The Company TOOVALU (herein after referred to as « the Service Provider ») is specialised in performance in the domain of CSR (Corporate Social Responsibility) for Extra-Financial and Climate Strategy.
TOOVALU has designed and developed a software solution, both standard and customisable, available on-line (in SaaS mode), which helps companies to manage their CSR and draw-up Green House Gases (GHG) accounting statements by storing the accounting history and the data that make up these accounting statements (herein after referred to as « the Solution »).
The Company sells services relating to support for structuring and implementation of the CSR strategy of organisation, structuring and management of their Extra-Financial Strategy, defining methodology for calculation of greenhouse gas assignments and configuring its software solution.
The Solution is hosted by the professional outsourcing company Clever Cloud. However, TOOVALU remains in charge for the Client in hosting the Solution and Client data.
TOOVALU guarantees the Client that he is the holder of all intellectual property rights relating to the TOOVALU Solution that allows it to sell it and to licence it to the Client, under the following terms and conditions.
The TOOVALU Solution is accessible via the most recent Internet navigators.
ARTICLE 1 – SCOPE OF APPLICATION - DEFINITIONS
1.1 – SCOPE OF APPLICATION
This contract is relevant only for online subscription of TOOVALU. Any additional need for consulting, training, technical or functional support or other services will come under a separate contract.
1.2 – DEFINITIONS
In addition to the terms defined wherever necessary on the Contract, the terms in capitals or whose first letter is in capitals mean the following in this document.
CLIENT: the entity which subscribes to the offer from TOOVALU, also called the licence holder.
Manager: main representative appointed by the Client, authorised to validate specific support requests also called Client Correspondent.
Software: Refers to the software included in the TOOVALU Solution, viz.: management of accounting statements of greenhouse gases and CSR and also a management platform for in the form of this object code. These softwares and their IT support, their documentation and their upgrades that are developed, produced and distributed by the company TOOVALU.
Upgrade: Refers to a Software update that will not lead to any regression with the software version provided to the CLIENT on the date when the Contract took effect, provided by TOOVALU to the CLIENT without additional cost, since these upgrades are included in the subscription. The upgrades include updates of changes in rules and methodologies
The upgrades are relevant only for the TOOVALU Solution and excludes any other product, service or software provided under different Contracts.
CLIENT data or Data : Refers to all the personal data and the data generated and/or created after deployment of the Solution, by the CLIENT, and if required those data created by CLIENT before deployment of the Solution, which might involve extraction of data which will come under a separate Contract (section SET UP).
All the Data are organised and stored by TOOVALU in a database hereinafter referred to as « Database ».
Server: Refers to the IT hardware connected to the internet on which the TOOVALU Solution is intended to be installed and hosted, so that the Users can visit, view and use. The Server is provided by the Service provider as part of the delivery of the TOOVALU Solution mainly for hosting the above-mentioned Solution. This Server is shared.
System: Refers to all the technical equipment (IT and telecom) defined by TOOVALU under its responsibility and which are required for exploitation of the database and for deployment of the TOOVALU Solution as per the clauses of the Contract. The System includes software (TOOVALU software and System software), the hardware and documentation, used by TOOVALU for deploying the TOOVALU Solution as per the Contract. Since the System might evolve over time the term refers to both the initial System as well as future upgrades.
Solution or Service: Refers to the TOOVALU Solution consisting of:
- Offering the Client a licence to use the module(s) of the TOOVALU Software as defined in the Quotation,
- Hosting of the Database and Data backup,
- Maintenance of the TOOVALU Solution
User: Refers to any User of the Client, authorised by the Client, authorised by the latter to have access to the Solution through an ID and password and who can use the Solution in accordance with his status. Users external to the Client’s company can be defined on the requests of the Client. All Users should have been authorised by the Client. The number of Uses can influence the price of the Subscription.
ARTICLE 2 : Subject - Subscription
2.1 - TOOVALU gives the Licence holder the non exclusive and temporary right to use the Software, the Upgrades and in a wider sense the Solution, solely for his own use, by paying an annual licence fee included in the total licence fee fixed for deploying the Solution, the amount of which is mentioned in the Quotation.
The Client choses a subscription level as mentioned in the Quotation (herein after referred to as Subscription). If he wishes to change his Subscription, an amendment to the Contract will be made.
The right to use the Software is accorded for the duration of the Contract and for all the territories of the world. For this, the Client can load and execute the Software, and also add, delete or modify Data.
The Client can appoint any member of his staff or an external service provider as user; he can request for change at any time during the support Contract. It is to be noted that only Users with Manager profile are allowed to make such modifications, that would allow the Client to independently define his users.
The Client is not allowed to sub-licence or rent out the TOOVALU Software. Providing the software to a third-party should be done based on prior express authorisation from TOOVALU.
TOOVALU retains the ownership of the TOOVALU Software. The Client does not acquire any right other than those clearly mentioned in the Contract.
2.2 - TOOVALU provides the Solution to the Client and the Users by giving IDS and access codes that are confidential and are under responsibility of the Client.
All the CLIENT Data, raw and/or processed with the TOOVALU Solution, are the exclusive property of the CLIENT. TOOVALU undertakes not to harm the ownership rights of the CLIENT over the components of the Data at any time.
2.3 –Source Codes and modifications to the software
The Licence holder is not allowed to modify the Software. The Software cannot be copied or rewritten to be distributed in any form, nor published on the Internet.
But the Client Data, which is the property of the Client, can be used by the Client as he wishes and under his sole responsibility.
TOOVALU is in no way obliged to provide the Subscription holder with the Source codes of the Software or details relating to the technical functioning of the Software, the data formats and the way in which the data can be exchanged with other systems.
2.4 – Duration of the Contract – Extension
The duration of the Contract is fixed in the quotation.
Unless exception, its initial term is set at 3 years from date to date.
The start of the Subscription is set by default at one month (M+1) from the signature of the Order by the Customer, unless otherwise specified in the Quotation.
At the end of its initial duration, the Contract is renewed tacitly for a period of 12 months, except in case of termination by one of the two Parties through letter with acknowledgement due sent to the other party 2 months before the expiry date of the current period.
2.5 – Billing – Payment modalities
The initial amount of the annual fee is defined in the Quotation and it is for the following rights and services:
- The right to use the TOOVALU Software and more generally the TOOVALU Solution under the terms and conditions set forth in the Contract
- support and maintenance of the TOOVALU Solution ;
- hosting of the Database containing the Client data.
A price grid is attached to the Quotation mentioning the prices in case of changes to the Subscription of the Client.
The fee is payable in advance.
The CLIENT will make the payment within 30 days from the date of receipt of the invoice, through bank transfer ot banker’s check.
2.6 – Record
TOOVALU will proceed to the creation of the Licensee's account within 7 days after opening the Subscription to the Solution. The identifiers enabling the Licensee to connect to the TOOVALU Solution will be sent to him/her as soon as necessary.
ARTICLE 3 : - TECHNICAL SUPPORT SERVICES AND ERRORS
3.1. – Definition of levels of support service
Support levels
Technical support from TOOVALU is split into three levels.
Level 1 and level 2 support requests are considered as routine technical support.
Beyond the initial set-up of the Solution, level 1 and 2 of technical support service is not included in the Subscription for the TOOVALU Solution and will come under a dedicated Service Contract.
In case of anomaly, TOOVALU undertakes to intervene from level 3 onwards.
Level 1 : Advice to users
Level 1 support involves providing assistance to the Users. It also involves giving training on the tool. This support level comes under the jurisdiction of the Client or is provided for as part of assistance or a dedicated Service Contract.
Level 2 : Daily Assistance
Level 2 involves daily assistance to the Users such as: resetting password or activation of access privilege or a user who has problems logging in. This support level comes under the jurisdiction of the Client or is provided for as part of assistance or a dedicated Service Contract.
Level 3 : Technical support in case of error
If an error, which does not come under the first two levels, occurs, a Client Representative (The Manager) is authorised to contact the technical support centre. First, the online support tool inbuilt into the solution is used to initiate the support process that starts as soon as the mail is received. The support team makes contact with the Client to make a diagnosis within one of the time frames mentioned below, depending on the severity of the request. It then processes the request and ensures tracking of the request.
3.2. – Modes of assistance - Level 1 and 2
When the CLIENT faces a difficulty in using the TOOVALU Software and more generally the TOOVALU Solution that requires help from TOOVALU, he can contact the technical support centre of TOOVALU.
TOOVALU provides three modes of assistance to the Client during working hours, (9h-18h, 5d/Week, excluding public holidays):
Through the online support tool integrated into the solution
Through e-mail
By phone: Telephone is limited to emergency cases or on the TOOVALU technician’s initiative.
It is recalled that this type of assistance is provided by Toovalu as part of the support for the implementation of the Solution or as part of a dedicated service contract.
3.3. - Support services in case of anomaly – Level 3
Levels of severity
When a level 3 request is raised, the severity level is established with a common agreement between the Client representative and TOOVALU technician. The levels of severity are as follows :
Severity 1 : Low level
Minor malfunction, clarification in the documentation, request for improvement in the long term, request for telephonic help or recommendation.
Severity 2 : Minor impact
Error or problem that makes some functionalities of the Solution unavailable, when a workaround clearly exists.
Severity 3 : Significant impact
Error or problem that affects the Solution which has a significant impact on the activity of the Client or which makes important functionalities of the Solution unavailable and no workaround acceptable for the Client has been found.
Severity 4 : Critical or system down
Error that causes complete stoppage of the Solution or leads to unavailability of the Solution for the Client. An emergency case is an error which prevents the complete utilisation of the TOOVALU software
Priority is given to problems with severity 4.
Response time and processing
The response time is 3 hours during working hours (GRT 3 hours) for levels of severity 3 and 4.
The response time is 24 hours during working hours (GRT 24 HOURS) for levels of severity 1 and 2.
The response time for workaround to an incident of severity 3 or 4 is 48 working hours.
The response time for workaround to an incident of severity 1 or 2 is 5 working hours.
Mode of operation of support on the TOOVALU infrastructure
Since the TOOVALU Software is installed on the Servers of TOOVALU, it is in charge of its technical exploitation. The TOOVALU support centre takes care of all the actions necessary for correction of the incidents on the Servers.
Services not covered under technical support
Support from TOOVALU is related to the software part of TOOVALU and the infrastructure as mentioned in the above article. TOOVALU does not support other applications used by the Client. TOOVALU does not support management of hardware, monitoring, systems or the network infrastructure of the Client. In no case, TOOVALU will be held responsible for incidents arising out of problems relating to these.
Any action from a TOOVALU technician on the incidents arising out of these devices will be billed to the Client on the basis of the time spent and on the pricing in force.
ARTICLE 4 : – Hosting - Infrastructures and security
4.1 – Hosting of the Database
The Customer Database is hosted in two Datacenters located in France chosen at the discretion of TOOVALU. On the date of signature of the present document, the said Datacenters are located in the Paris region. Two belong to EQUINIX, the last to Zayo Group. The rooms are separated by an average of 10km.
TOOVALU undertakes to inform the Client if the hosting centre is relocated and to obtain prior consent from the Client in case it moves abroad. In such a situation, the Client can terminate the Contract through registered post with acknowledgement due, without any compensation to either party.
In all cases, TOOVALU will inform the Client beforehand about relocation and will communicate the new address details of the hosting of the Solution.
TOOVALU guarantees that, for the entire duration of the contract, this Datacentre will have the protection and security resources that meets with the highest level of standards in this domain and that the backup systems (frequency, extent, support) having guarantees of reliability and security that is laid down in the article “backup” of the Contract. Access to the site is strictly monitored.
4.2 - Server
The choice of technical architecture, hardware and software used for hosting the Database are at the sole discretion of TOOVALU.
4.3 - Backups
TOOVALU processes, creates backup and stores Client data. As such, TOOVALU undertakes to guarantee the security, confidentiality and integrity of Data.
TOOVALU guarantees the Client that the externalisation of Client data will not result in altering them.
Therefore, TOOVALU guarantees that it will implement effective controls in such a way as to give the Client a reasonable assurance about processing of the Data which are entrusted to them, without risk of omissions, alterations, deformation or any other form of problem that might harm the integrity of Data or results due to utilisation of the Solution by the Client and/or Users
TOOVALU undertakes to implement all the technical and organisational measures in such a way as to prevent any fraudulent access or utilisation of Client data and to prevent loss of integrity of these Data, by implementing security and backup measures.
With respect to backup and restore of Data undertaken by TOOVALU and in order to preserve an optimal threshold of security of Data, TOOVALU commits to perform the daily complete backup of Data hosted on the Servers.
Client’s data are exclusively backed-up in order to be able to face incident that could lead to loss of data.
The backups are not meant for archiving the data.
Backups are stored for rolling 30 day period. The time for restoring a back-up for complete property of the Solution is 48 working hours from the time of request from the Client.
ARTICLE 5 : Termination – End of the Contract
5.1 - The Contract can be terminated entirely by any one of the Parties in the following cases and conditions:
If one of the Parties does not respect any of the contractual obligations, the Contract will be terminated with full rights, one month after the date of first presentation, by the party that did not default to the defaulting party, of a notice to remedy the deficiencies identified, through registered post with acknowledgement due that see any result.
In case of a force majeure event more than one month after its occurrence
On joint agreement between the Parties in an amicable way;
Any termination is done with full rights.
It happens without prejudice to any claim or action to compensate for any losses incurred by the Party that initiated the termination and without prejudice to the ability of the Client to request for reversibility as provided in this contract.
In case of termination due to TOOVALU’s fault or in case of force majeure, TOOVALU undertakes to refund the amount paid by the Client for the Subscription for the period starting from the date of termination of the Contract to the subsequent 31st December.
5.2 - Consequences of end of Contract
TOOVALU undertakes to continue providing the Solution under the same conditions of quality, security and confidentiality until the effective end date of the Contract. The CLIENT undertakes to pay the sums due under the Contract to TOOVALU on this date.
5.3 - Reversibility
Return of data
In case of ending of contractual relationship for any reason, the Client can ask of reversibility. In this case TOOVALU undertakes to return all the Data to the Client, in an exploitable format which can be reused especially:
System of folders for the files
XML or CSV files for the Data.
The quotation for service of return of data will be sent to the Client and will be validated by the Client before the start of any return operation.
TOOVALU will give its best in order to ensure that the reversibility operation ends within 15 days from the date of request from the CLIENT; the CLIENT can notify their reservation; TOOVALU will put in its best efforts to overcome them; the operation will be closed when the Client signs a MOM of end of reversibility, without reservations.
Destruction of data
After the Client signs the MOM of reversibility without reservation and the validation of proper completion of the operation of return of Data, TOOVALU undertakes to destroy at its own expense, all the copies or back-ups that it might have made of them
ARTICLE 6 : RESPONSABILITY - LIMITATIONS
6.1 - The obligations of TOOVALU are the obligations of means.
TOOVALU will do its best to ensure that the Software works with prolonged interruption. But TOOVALU does not guarantee that the Software will work without interruption or outages and that all the faults will be corrected within the time frames mentioned in the document.
6.2 – In case of non-execution by TOOVALU of any one of its obligations (by invoking the Contract or legal clauses) the parties expressly agree:
That the responsibility of TOOVALU will be limited to the direct material losses and all non-pecuniary losses are excluded from compensation, including and not limited to : loss in profit, turnover, margins, loss of order, clients, operations, loss of data, files, proofs or impact on brand image or any action from third parties; That the Client should file a case with the competent court within one year from the date of non execution under penalty of foreclosure;
And, in all cases, that the losses that will result from this non-execution for the Client cannot be compensated beyond a maximum amount (compensation ceiling) against the amount received by the TOOVALU under the contract to the extent of the amounts covered by the civil liability insurance policy purchased by TOOVALU.
The stipulations of the Contract share the risk between the TOOVALU and the Client, and the agreed cost reflecting this sharing of risk and limitation of the liability that results from it.
The provisions of this article will continue to be applicable even in case of cancellation or termination of the Contract as mandated by the final decision of the court.