Terms
General Terms of Service
The purpose of these General Terms is to define the conditions under which SIMAFRI's services are made available and used.
SIMAFRI is a trade name operated by the company GROUPE SOMME LTD, which is legally responsible for it.
Together with the applicable Special Terms of Service and all the documents to which they refer, they form a contract (hereinafter the "Contract") entered into between GROUPE SOMME LTD, a company domiciled at 24 Saint Georges Street, Port Louis, Mauritius (hereinafter referred to as "SIMAFRI"), and any natural or legal person, consumer or professional, governed by private or public law, creating a Client Account on SIMAFRI's website (hereinafter referred to as the "Client"); the Client and SIMAFRI being individually or jointly referred to as the "Party" or "Parties".
ARTICLE 1: ORDERING THE SERVICES
1.1. Client Account. In order to order SIMAFRI's Services, the Client must have a valid Client Account (hereinafter the "Account" or "Client Account"). The Client creates their Client Account online on SIMAFRI's website. The Client provides all the required information (in particular email address, identity, contact details, banking information, etc.) and undertakes that all the information thus provided is accurate and kept up to date throughout the term of the Contract. Where the Account is created and used by a person acting in the name and on behalf of the Client, that person represents and warrants to SIMAFRI that they have the necessary power and capacity to represent and bind the Client under the conditions provided for in the Contract.
1.2. Verification and activation of the Client Account. Before activating the Client Account, as well as at any time during the Contract, SIMAFRI reserves the right to check the accuracy of the information provided by or on behalf of the Client, and to ask the Client for supporting documents. SIMAFRI reserves the right not to activate, or to deactivate, the Client Account in the event of incomplete, erroneous or fraudulent information.
1.3. Orders. As from the activation of their Client Account by SIMAFRI, the Client may order Services. Depending on the Services, Orders may be placed from SIMAFRI's Website and/or directly from the Client's Management interface (also called the Manager or Client Area), and/or, where applicable, by using the APIs made available by SIMAFRI. The Client is solely responsible for the management of their Client Account and of the authentication means (such as usernames, passwords, etc.) associated with it. Any Order of Services placed from the Client's Account is deemed to have been placed by the Client and is binding on the latter. The conditions and time frames for making the Services available vary depending on the Service ordered. Some Services are made available only after SIMAFRI has received the Client's payment. It is the Client's responsibility to ensure that the conditions under which the ordered Services are made available are suited to their needs.
ARTICLE 2: SERVICES
2.1. Applicable Terms of Service. The provision and use of the Services are governed by these General Terms of Service, the Special Terms of Service applicable to the Services concerned, any other terms to which said General Terms and Special Terms refer, such as in particular the Third-Party Product Terms and the SIMAFRI Code of Conduct, as well as all information brought to the Client's attention at the time of the Order (the "Terms of Service" or "General Terms of Sale" or "GTS"). The use of Third-Party Products (such as software, systems, applications, etc.) made available by SIMAFRI within the framework of the Services may be subject to specific terms of use (the "Third-Party Product Terms"). The Special Terms of Service and the Third-Party Product Terms supplement these General Terms of Service. In the event of contradiction, the Special Terms of Service as well as these General Terms prevail over the Third-Party Product Terms. All Terms of Service in force are referenced and available from SIMAFRI's Website or available upon simple request from SIMAFRI Support. The Terms of Service may vary depending on the country in which the Services are located.
2.2. Information relating to the Services. SIMAFRI makes online resources available to the Client on SIMAFRI's Website enabling the Client to become acquainted with and understand the characteristics of the Services offered. These resources include in particular (a) information concerning the various features, configurations, options and ranges available and (b) documentation, technical guides or examples (or "use cases") of use of the Services enabling a better understanding and use of the Services. The Client may obtain additional information concerning the Services by contacting SIMAFRI Support under the conditions provided for in the article "SIMAFRI Support" below. Where SIMAFRI offers Services compliant with recognized standards or with specific regulations applicable to certain activities (for example the hosting of health data), SIMAFRI communicates its scope of responsibility as well as the conditions under which SIMAFRI complies with said standards or regulations.
2.3. SIMAFRI's commitments and obligations. SIMAFRI undertakes to exercise all the care and diligence necessary to provide quality Services, in accordance with the characteristics, terms and Service levels provided for in the Contract. SIMAFRI undertakes in particular to have a competent team in charge of assisting the Client and managing Incidents ("SIMAFRI Support"), and to ensure the availability and security of the Services in accordance with the applicable terms and performance levels. SIMAFRI is bound by an obligation of means.
2.4. Subcontracting. Subject to the conditions provided for in the article "Location and Transfers of data" below, SIMAFRI is authorized to subcontract all or part of the services for which it is responsible under this Contract to its Affiliated Companies or to third-party companies. SIMAFRI may freely use, in the performance of this Contract, third parties (such as energy suppliers, network providers, managers of network connection points or colocation data centers, suppliers of hardware, software or other items, carriers, technical service providers, security services), without having to inform the Client or seek their prior consent.
ARTICLE 3: CONDITIONS OF USE OF THE SERVICES
3.1. Compliance with the Terms of Service. The Client undertakes to order and use the Services in accordance with the Terms of Service in force. The Services must be used in good faith and with common sense. The Client undertakes in particular to read and comply with these General Terms of Service, the applicable Special Terms of Service and Third-Party Product Terms, as well as any information communicated to the Client at the time of the Order. When using the Services on behalf of third parties, or authorizing third parties to use the Services, the Client undertakes to communicate the terms in force to them and warrants that said terms are complied with.
3.2. Choice of Services. Before ordering and using Services, the Client undertakes to read all the Terms of Service in force (in particular the Special Terms and Third-Party Product Terms) and to study all the documentation, configurations, options and ranges of services available in order to select Services and characteristics suited to their needs and to those of the third parties by or on behalf of whom the Services are used. The Client ensures in particular that the Services are suited to the legal and regulatory requirements applicable to the activities carried out in the context of the use of the Services. For any additional information concerning the Services, the Client contacts SIMAFRI Support under the conditions provided for in the article "SIMAFRI Support" below. The conditions and characteristics of the Services evolve regularly. It is the Client's responsibility to pay attention to these changes, in particular in the context of each new Order.
3.3. Connection. To use the Services, the Client must have, at their own expense and under their own responsibility, a remote connection (such as the Internet or a private network). The Client is informed that the Internet network presents technical contingencies and security risks external to the technical means implemented by SIMAFRI in the context of the Services. SIMAFRI is not responsible for the failures of Internet access providers or other third-party data transport network operators (in particular lack of reliability of connection lines, bandwidth fluctuation, interruptions, etc.), including the consequences of such failures, in particular when they result in unavailability and/or discontinuity of the Services.
3.4. Authentication means. The Client is responsible for the management and confidentiality of their authentication means, which are necessary to connect to and use the Services. The Client ensures in particular that Users are aware of and comply with best practices for preserving the confidentiality of their authentication means. The Client alone bears the consequences that may result from the loss, disclosure, or fraudulent or unlawful use of the authentication means provided to Users, SIMAFRI's liability not being capable of being incurred in any way in this respect. The Client undertakes to inform SIMAFRI without delay of any loss or possible disclosure of the authentication means, and to immediately renew said authentication means.
3.5. Content. Subject to the items made available by SIMAFRI, SIMAFRI does not intervene in the management of information, data, files, systems, applications, websites and other items reproduced, hosted, collected, stored, transmitted, broadcast, published, and more generally used and/or operated by the Client in the context of the Services (the "Content") and refrains from accessing said Content for purposes other than as required for the performance of the Services. In particular, SIMAFRI does not carry out any operation of validation, updating or deletion of said Content. Likewise, SIMAFRI does not perform any specific backup of the Content stored in the context of the Services. It is therefore the Client's responsibility to take all measures necessary to back up their Content in order to guard against the risks of loss or deterioration, whatever the cause. The Content must be lawful and must be used in accordance with best practices and the laws and regulations in force. Any use of unlawful Content (for example the broadcasting, publication, storage or transmission of Content of a child pornography nature, of Content glorifying or inciting the commission of crimes against humanity, acts of terrorism, pedophilia, anti-Semitism, racism or other crimes, or Content inciting hatred against persons on account of their sex, religion, sexual orientation or identity, or disability) or any unlawful or abusive use of Content (for example fraudulent use of content or use of Content made in violation of rights belonging to third parties such as personality rights, copyright, patents or trademarks or other intellectual property rights) in the context of the Services is prohibited and may give rise, at SIMAFRI's discretion, to the immediate suspension of all or part of the Services provided in performance of the Contract, to the deactivation of the Client's Account and/or to the termination of the Contract for cause attributable to the Client, without prejudice to the legal proceedings and claims for compensation that SIMAFRI reserves the right to pursue.
3.6. Compliance with laws, regulations and ethical rules. The Services must be used reasonably, in accordance with the SIMAFRI Code of Conduct accessible on SIMAFRI's Website, and in compliance with the legal and regulatory provisions in force. The Client undertakes to remain vigilant with respect to any evolution or modification of said Code of Conduct communicated by SIMAFRI. The following are prohibited in particular, without this list being exhaustive: (a) abusive or fraudulent uses of the Services and resources made available to the Client, in particular uses likely to jeopardize the stability and security of SIMAFRI's systems or which may result in a degradation of the performance of the Services provided to SIMAFRI's other clients, (b) intrusion or attempted intrusion activities carried out from the Services (non-exhaustively: port scanning, sniffing, spoofing, and more generally outbound attacks from the resources made available by SIMAFRI), (c) any use or attempted use of SPAM or any other technique comparable to "spamming", and (d) uses of unlawful or prohibited Content as provided for in paragraph 3.5 "Content" above.
3.7. Suspension of the Services. SIMAFRI reserves the right to suspend all or part of the Services in the event of (a) a proven risk to the stability and/or security of SIMAFRI's systems and environments, of the Services and/or of the Client's data, (b) scheduled maintenance, (c) a request from a competent administrative or judicial authority, or (d) non-compliance with all or part of the conditions of use of the Services provided for in the Contract. Such suspension may take place immediately and without notice in cases of emergency or necessity, and in particular in the cases described in points (a), (c) and (d) above, as well as in the event of unlawful or fraudulent use of the Services, or use made in violation of the rights of a third party, and more generally, any use on the basis of which SIMAFRI's liability could be incurred. To the extent possible, and subject to cases of judicial and administrative requisitions and of non-compliance with these conditions of use of the Services, SIMAFRI endeavors to limit the impact of the suspension on the normal operation of the Services. The aforementioned suspensions in no way release the Client from their obligation to pay all the amounts due to SIMAFRI under the Contract, without prejudice to the Client's right to invoke SIMAFRI's liability under the conditions provided for in the article "Liability" below in the event that such suspensions result from a failure by SIMAFRI to perform its obligations. The Client may consult scheduled maintenance operations on the interface provided for this purpose. Where they result from a failure by the Client to fulfil their obligations, the aforementioned suspensions take place without prejudice to SIMAFRI's right to terminate the Contract under the conditions provided for in the article "Termination for breach" below and to claim compensation for the damage suffered. Subject to cases of termination or non-renewal of the Services, suspensions of Services may result in the deletion of the Client's data. Unless they result exclusively from a failure by SIMAFRI to perform its obligations, the aforementioned suspensions cannot be considered as Service unavailability time for the purposes of the implementation of the Service commitments provided for in the Contract.
3.8. Evolution of the Services. SIMAFRI may at any time and as of right modify the Services, in particular add, modify or remove ranges, options or features and change their performance. The Services are described online on SIMAFRI's Website. It is the Client's responsibility to remain vigilant regarding changes to the Services, which are applicable immediately to all new Orders. Concerning Services in use, the Client is informed by email and via their Management Interface of any substantial change likely to degrade said Services, at least thirty (30) calendar days before the implementation of the change. However, modifications to Third-Party Products and emergencies (such as a security risk or legal or regulatory compliance) may result in immediate changes to the Services. Subject to the article "Terms specific to Consumers", in the event of a change degrading a Service in use (removal of a feature, decrease in performance, etc.), the Client may terminate said Service by registered letter with acknowledgement of receipt or via the form provided for this purpose in their Management Interface, within thirty (30) days from the implementation of the change.
3.9. Intellectual Property. Rights of use. All items (software, Infrastructures, documentation, etc.) made available to the Client by SIMAFRI in the context of the Services and the performance of the Contract remain the exclusive property of SIMAFRI or of the third parties having granted it the right to use them. SIMAFRI grants the Client the right to use said items made available to them, solely under the applicable conditions and for the duration of this Contract. Subject to the aforementioned items made available to the Client by SIMAFRI in the context of the Services, the Client remains solely responsible for acquiring all the authorizations and rights of use of the items and Content (such as data, software, applications, systems, websites, etc.) that they use and operate in the context of the Services. The Client and the Users remain the owners of their Content, SIMAFRI refraining from using it for purposes other than those provided for in the Contract. Subject to the mandatory legal provisions in force, the Client is not authorized to decompile the software, code and algorithms used in the context of the Services, in particular for reverse-engineering purposes.
3.10. Export Control. Subject to the restrictions of use (a) provided for in the Terms of Service in force or (b) specific to the Client's activities, SIMAFRI ensures that the Services may be marketed and used in Mauritius, within the European Union and in the countries in which the data centers used to provide the Services are located. If the Client uses the Services or authorizes third parties to use the Services from a geographical area located outside the country in which said data centers are located, it is the Client's responsibility to verify that this use is not subject to any restriction under the applicable legislation or regulations, and in particular with regard to Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items, as well as the regulations of the United States of America, such as the EAR (Export Administration Regulations) and ITAR (International Traffic In Arms Regulations), SIMAFRI marketing third-party solutions provided by publishers subject to the regulations of the United States of America. SIMAFRI reserves the right to refuse orders placed (a) from countries subject to trade restrictions or other sanctions, or (b) by nationals of said countries or persons subject to sanctions.
3.11. Third-Party Products. Subject to the specific commitments that may be made within the framework of the applicable Special Terms of Service, (a) SIMAFRI is not responsible for the Third-Party Products made available in the context of the Services, which may in particular contain technical errors, security vulnerabilities, incompatibilities or instabilities, and gives no warranty regarding the Third-Party Products made available in the context of the Services (including all information and items associated with them such as software, systems, applications, etc.), and (b) the Client is only authorized to use the Third-Party Products made available to them by SIMAFRI in the context of the Services, to the exclusion in particular of any possibility of decompiling, accessing the source code of, or reinstalling on other infrastructures the Third-Party software products or systems made available to them. The Client uses the Third-Party Products under their sole responsibility, in compliance with the Terms of Service in force, and ensures in particular that they are suited to their needs and to the purposes for which they are used.
3.12. Continuity and Reversibility of the Services. Unless otherwise provided in the applicable Special Terms, the termination of the Services, whatever the cause (in particular termination of the Contract, non-renewal, discontinuation of Services by the Client, non-compliance with the Terms of Service in force, etc.), as well as certain Service update and reinstallation operations, result in the automatic and irreversible deletion of all the Content (in particular information, data, files, systems, applications, websites and other items) reproduced, stored, hosted, collected, transmitted, broadcast, published, and more generally used and/or operated by the Client in the context of the Services, including any backups thereof. Before the expiry date of the Services, as well as before carrying out any deletion, update or reinstallation operations on the Services, it is the Client's responsibility to carry out, under their sole responsibility, any operation (such as backup, transfer to a third-party solution, Snapshot, etc.) necessary for the preservation of their Content. At the Client's request, and subject to the stipulations of the article "Confidentiality" below, SIMAFRI provides them with any technical information relating to the Services likely to facilitate reversibility and Content recovery operations. These assistance services may give rise to additional invoicing on a time-spent basis, on the basis of the financial conditions available on SIMAFRI's Website or upon simple request from SIMAFRI Support. However, SIMAFRI does not carry out any operation of restitution or migration of the Client's Content, which remains the exclusive responsibility of the latter. Subject to the data that SIMAFRI must retain in accordance with the regulations in force, the data referred to in article 8.3 "SIMAFRI Processing" below, and the data necessary for the defense of its rights, SIMAFRI undertakes, following the termination of the Services, and unless otherwise agreed between the Parties or specifically provided in the applicable Special Terms, not to retain any copy of the Client's data.
ARTICLE 4: SIMAFRI SUPPORT
4.1. The SIMAFRI Support team. The SIMAFRI Support team is responsible for managing Incidents encountered in the context of the Services and for providing the Client, upon simple request, with information concerning the conditions and characteristics of the Services. Subject to the other available Support levels referred to in point 4.4 below, SIMAFRI Support is provided in several languages; in the event of any difference of interpretation, only exchanges in French and in English shall constitute the legal reference. Information services concerning the Services are provided during business hours only. Incidents are managed on a 365/24/7 basis. In order to ensure the continuity of Incident management, SIMAFRI reserves the right to subcontract part of the Support under the conditions provided for in the articles "Subcontracting" and "Processing of personal data".
4.2. Use of SIMAFRI Support. The Client may contact SIMAFRI Support by email or via a specific form available in the Management Interface. Each request or Incident report thus received gives rise to the recording, by SIMAFRI, of a ticket (or "Incident Ticket"). The Client is informed by email of the creation of the Incident Ticket and of the corresponding number. The Client accesses the status and history of their requests and Incident reports on their Management Interface. The Client undertakes not to make abusive use of SIMAFRI Support. Before contacting SIMAFRI Support, the Client must in particular use the resources and information available on SIMAFRI's Website (user guides, use cases, product documentation, etc.) and in their Management Interface (reporting, monitoring, etc.). The Client undertakes not to (i) contact SIMAFRI Support for services or products that they have not contracted directly with SIMAFRI, or (ii) put the SIMAFRI Support teams in contact with their own clients or any other third party to the Contract. SIMAFRI reserves the right to refuse to handle requests that do not comply with these conditions. The Client undertakes to adopt appropriate, cordial and respectful conduct in their dealings with SIMAFRI Support. SIMAFRI reserves the right to stop responding to the Client's requests and to immediately terminate the Contract in the event of insulting, outrageous or degrading behavior. In addition, such behavior may give rise to legal proceedings against the Client, SIMAFRI being entitled, in this context, to use any means of evidence it deems useful and appropriate (extracts of communications with the Client, screenshots, emails, recordings of telecommunications, etc.). Subject to the other available Support levels referred to in point 4.4 below, SIMAFRI Support is included in the price of the Services.
4.3. Incident management. In the event of a malfunction of the Services, the Client first carries out the technical tests recommended on SIMAFRI's Website. If these tests do not resolve the Incident, the Client reports it to SIMAFRI Support under the conditions described above, providing as much information as possible to enable a proper diagnosis to be made. In the event of an Incident report, SIMAFRI Support carries out the necessary investigations to identify the cause of the malfunction encountered and establish a diagnosis. The Client undertakes to remain available at all times in order to be able to collaborate with SIMAFRI on the diagnosis and resolution of the Incident, in particular by providing it with any additional information, and by carrying out all the necessary tests and verifications. In the context of Incident management, SIMAFRI and its Affiliated Companies are expressly authorized by the Client to connect to the Client's Services, at both hardware and software level, and to carry out any operation necessary for the preparation of the diagnosis. This connection may require an intervention by the Client on their Service. SIMAFRI undertakes to keep the Client informed of the progress of the operations. If SIMAFRI finds that its Services are available and in good working order, that the existence of the Incident cannot be confirmed, or that the Incident does not fall within SIMAFRI's responsibility, SIMAFRI informs the Client thereof. In this case, the time spent by SIMAFRI carrying out the diagnosis and assisting the Client may be invoiced as additional services on a fixed-price basis at the rate available on SIMAFRI's Website and recalled at the time of the Incident report. SIMAFRI reserves the right to refuse any intervention if it finds during its investigations that the Client is using the Service in violation of the Contract or of the laws or regulations in force. If it appears that the Incident falls within its responsibility, SIMAFRI finalizes the diagnosis and works to restore the availability of the impacted Services. In this case, SIMAFRI's intervention does not give rise to any additional invoicing. The diagnosis is established by SIMAFRI by any means, and in particular on the basis of the exchanges between the Parties and the data from SIMAFRI's information system (such as connection data), which, by express agreement, are admissible. Subject to the applicable Special Terms and the other Support levels referred to in point 4.4 below, SIMAFRI gives no guarantee as to intervention and Incident resolution times in the context of SIMAFRI Support.
4.4. Other Support levels. In addition to the SIMAFRI Support described above, SIMAFRI offers other Support levels enabling the Client to benefit from additional services and commitment levels. These Support levels are described in the corresponding Special Terms and documentation, available on SIMAFRI's Website or upon request from SIMAFRI Support.
ARTICLE 5: LIABILITY
5.1. Capacity. Each Party represents and warrants that it has the authority and capacity necessary to enter into the Contract and to perform the obligations incumbent upon it. The Client and SIMAFRI represent and warrant in particular that they have all the authorizations, skills and knowledge (in particular technical knowledge) enabling them respectively to use and provide the Services in accordance with the conditions provided for in the Contract.
5.2. LIABILITY OF SIMAFRI. WHERE THE APPLICABLE SPECIAL TERMS OF SERVICE PROVIDE FOR SERVICE LEVEL COMMITMENTS, THE CORRESPONDING PENALTIES OR CREDITS THAT MAY BE DUE BY SIMAFRI TO THE CLIENT CONSTITUTE LUMP-SUM COMPENSATION FOR ALL DAMAGES RESULTING FROM SIMAFRI'S FAILURE TO COMPLY WITH THE SERVICE LEVEL COMMITMENTS IN QUESTION; THE CLIENT WAIVING, IN THIS RESPECT, ANY OTHER REQUEST, CLAIM AND/OR ACTION. IN THE ABSENCE OF AN APPLICABLE SERVICE LEVEL COMMITMENT, THE TOTAL CUMULATIVE AMOUNT OF COMPENSATION THAT MAY BE CHARGED TO SIMAFRI (INCLUDING AFFILIATED COMPANIES, SUBCONTRACTORS AND SUPPLIERS) IN THE EVENT OF A BREACH OR FAILURE ON ITS PART IS LIMITED, ALL BREACHES COMBINED: (A) TO THE AMOUNT OF THE SUMS PAID BY THE CLIENT TO SIMAFRI IN CONSIDERATION OF THE IMPACTED SERVICES DURING THE SIX (6) MONTHS PRECEDING THE CLIENT'S REQUEST FOR COMPENSATION, OR (B) TO THE DIRECT DAMAGE SUFFERED BY THE CLIENT IF IT IS LOWER.
5.3. EXCLUSION OF LIABILITY. SIMAFRI'S LIABILITY SHALL IN NO EVENT BE INCURRED ON THE FOLLOWING GROUNDS: (A) USE OF THE SERVICES NOT IN ACCORDANCE WITH THE CONDITIONS PROVIDED FOR IN THE CONTRACT; (B) NON-PERFORMANCE, FAILURE, MALFUNCTION OR UNAVAILABILITY OF THE SERVICES RESULTING FROM A THIRD PARTY (EXCLUDING SIMAFRI'S SUBCONTRACTORS), FROM THE CLIENT, FROM A THIRD-PARTY PRODUCT, OR FROM A BREACH BY THE CLIENT OF THEIR OBLIGATIONS; (C) INDIRECT DAMAGES SUCH AS, IN PARTICULAR, COMMERCIAL DAMAGE OR DISRUPTION, LOSS OF ORDERS, OPERATING LOSSES, DAMAGE TO BRAND IMAGE, LOSS OF PROFITS OR CUSTOMERS (FOR EXAMPLE, INAPPROPRIATE DISCLOSURE OF CONFIDENTIAL INFORMATION CONCERNING THEM AS A RESULT OF SYSTEM DEFECT OR HACKING, ACTION OF A THIRD PARTY AGAINST THE CLIENT, ETC.); (D) LOSS, DISCLOSURE OR UNLAWFUL OR FRAUDULENT USE OF USER AUTHENTICATION MEANS CAUSED BY THE CLIENT OR THIRD PARTIES; (E) SUSPENSION OF ACCESS OR TEMPORARY OR PERMANENT SUSPENSION OF THE SERVICES CARRIED OUT UNDER THE CONDITIONS PROVIDED FOR IN ARTICLE 3 OF THESE GENERAL TERMS (IN PARTICULAR RESULTING FROM A REQUEST FROM A COMPETENT ADMINISTRATIVE OR JUDICIAL AUTHORITY, OR NOTIFICATION FROM A THIRD PARTY WITHIN THE MEANING OF ARTICLE 6 OF THE FRENCH LCEN OR EQUIVALENT); (F) LOSS, ALTERATION OR DESTRUCTION OF ALL OR PART OF THE CONTENT (INFORMATION, DATA, APPLICATIONS, FILES OR OTHER ITEMS) HOSTED ON THE INFRASTRUCTURE, INSOFAR AS SIMAFRI IS NOT IN CHARGE OF MANAGING THE CONTINUITY OF THE CLIENT'S ACTIVITIES AND IN PARTICULAR BACKUP OPERATIONS; (G) UNSUITABILITY OF THE SERVICES TO THE CLIENT'S NEEDS (IN PARTICULAR WITH REGARD TO THE SENSITIVITY OF THE DATA CONCERNED); (H) SECURITY INCIDENTS RELATED TO THE USE OF THE INTERNET, IN PARTICULAR IN THE EVENT OF LOSS, ALTERATION, DESTRUCTION, DISCLOSURE OR UNAUTHORIZED ACCESS TO THE CLIENT'S DATA OR INFORMATION ON OR FROM THE INTERNET NETWORK; (I) DETERIORATION OF THE SYSTEMS, APPLICATIONS AND OTHER ITEMS INSTALLED BY THE CLIENT ON THE INFRASTRUCTURE.
5.4. Liability of the Client. The Client assumes all the risks and perils related to their activities and is in particular solely responsible for the use of the Services made available to them by SIMAFRI and for compliance with the Terms of Service in force, including where the Services made available to them are used by or on behalf of third parties. The Client remains in particular responsible (a) for the suitability of the ordered Services to their needs and to the needs of the third parties by or on behalf of whom they are used, (b) for the Content, such as information, data, files, systems, applications, software, websites and other items reproduced, hosted, installed, collected, transmitted, broadcast or published, and more generally used and/or operated in the context of the Services, as well as (c) for the management and use of said Content (in particular its control, validation, updating, deletion, backup, as well as any measure intended to guard against the loss or alteration of Content), including where it belongs to third parties or is used or operated by or on behalf of third parties, and (d) for compliance with the laws and regulations in force, as well as with the Code of Conduct. Where the Client uses the Services in the context of a professional activity, or where they act on behalf of third parties, they undertake to take out, with a reputably solvent body, civil liability insurance covering all the damage that may be attributable to them, and undertake to maintain this insurance (or any other equivalent insurance) throughout the term of the Contract.
5.5. Warranty. Each Party warrants that it carries out its activities in accordance with the regulations in force. The Client in particular indemnifies SIMAFRI against all consequences resulting (a) from the use or operation of unlawful Content in the context of the Services, (b) from fraudulent use of the Services or use not in accordance with the laws and regulations in force, (c) from use of the Services made in violation of the rights of third parties, (d) from the unsuitability of the selected Services to their needs or to the needs of the Users, and (e) from the loss or unauthorized or fraudulent use of the Users' authentication means. The Client undertakes to intervene in the context of any requests, claims and/or actions of third parties concerning the Content and/or the Terms of Service, including those of administrative and judicial authorities, and to compensate SIMAFRI for all damages resulting therefrom (including judgments, reasonable defense costs, etc.).
5.6. Third parties. Under this Contract, SIMAFRI makes no commitment to third parties, and in particular to Users, and no stipulation may be interpreted as creating third-party beneficiaries of this Contract. The Client is solely in charge of the relationship they maintain with third parties, in particular with the Users of the Services, and indemnifies SIMAFRI against any requests, claims and/or actions of third parties concerning SIMAFRI's Services. The Client undertakes to notify SIMAFRI in writing, as soon as possible, of all requests, claims and/or actions of third parties concerning SIMAFRI's Services, specifying the subject of the request as well as any useful information so that SIMAFRI can provide the Client with the useful items in its possession.
5.7. Force Majeure. Neither Party may be held liable on the basis of a failure resulting, directly or indirectly, from unforeseeable events having the characteristics of force majeure as defined in the Civil Code. However, in order to be able to rely on this provision, the Party that is prevented from performing its obligations must inform the other Party as soon as possible and in writing, specifying the circumstances and the foreseeable duration of this situation, and keep it regularly informed of developments in the situation. If, despite the efforts of the defaulting Party, its failure lasts more than thirty (30) consecutive days, the other Party may, as of right, terminate all or part of the impacted Services.
ARTICLE 6: FINANCIAL CONDITIONS
6.1. Price of the Services. The prices of the Services invoiced to the Client are those in force at the time of invoicing, as published on SIMAFRI's Website. Prices are also communicated upon simple request addressed to SIMAFRI Support. Unless otherwise stipulated, prices are in euros. Depending on the type of Services, SIMAFRI offers different types of rates (monthly fixed price, annual fixed price, pay-as-you-go price, etc.) with which may be associated, as the case may be, a commitment period and/or a specific invoicing method. Where, for the same Service, several types of rates are available, the Client selects the one of their choice at the time of the Order. Where they are stated exclusive of tax (in particular concerning Services intended for professionals), VAT as well as any other tax applicable to the Services (excluding taxes and duties on SIMAFRI's income) are added to the price of the Services and are payable by the Client, without this being considered a price change within the meaning of article 6.2 below. Unless specific pricing is provided for, the price of the Services includes the cost of acquiring the licenses and rights of use of the tools, software and operating systems used by SIMAFRI and/or, where applicable, made available to the Client by SIMAFRI in the context of the Services. It is the Client's responsibility to acquire and pay for any license or right of use necessary for the operation of the Content they use in the context of the Services. The methods for calculating the prices of the Services and the billing units are defined on SIMAFRI's Website and in the applicable Special Terms. It is the Client's responsibility to read them before placing an order. Each billing unit commenced is invoiced and due in full, including if it is not fully used. Some Services give rise to additional installation or set-up fees.
6.2. Price changes. SIMAFRI reserves the right to modify its prices at any time. Price changes are applicable immediately to any new Order. For Services in use, in the event of a price increase, the Client is informed with thirty (30) calendar days' notice by email. In this case and subject to the article "Terms specific to Consumers", the Client will have, from this information, a period of thirty (30) calendar days to terminate the impacted Services without penalty, by registered letter with acknowledgement of receipt or via the form provided for this purpose in their Management Interface. Failing this, the Client will be deemed to have accepted the new rates. The aforementioned termination right is not applicable in the event of a price increase resulting from unforeseeable circumstances within the meaning of the Civil Code. In such a case, the provisions of said article shall apply.
6.3. Invoicing. The Services are invoiced on the basis of the Client's consumption and Orders as recorded by SIMAFRI in its information system, which is authoritative and fully enforceable against the Client. The frequency (monthly, annual, or other) and timing (upon Order or at the end of the period) of invoicing vary from one Service to another. The invoicing conditions for the prices of the Services are defined on SIMAFRI's Website and in the applicable Special Terms of Service. It is the Client's responsibility to read them before placing an order. After each payment, SIMAFRI sends the Client an invoice. The Client expressly agrees that the invoice may be sent to them electronically. The invoice is communicated to the Client by email and/or made available to the Client in the Management Interface. It is the Client's responsibility to keep a copy of it in accordance with the regulations in force. Invoices made available to the Client in the Management Interface remain there for a period of twelve (12) months following the date on which they are made available.
6.4. Payment. Invoices are payable upon receipt, it being specified that, depending on the Services, invoices are issued either upon Order or at the end of the period. It is the Client's responsibility to select in their Management Interface the desired payment method from among the available payment methods. The available payment methods may vary from one Service to another. It is the Client's responsibility to check them before placing an order. Concerning Services payable at the end of the period, SIMAFRI reserves the right to invoice said Services to the Client before the end of the current calendar month, as soon as the Services consumed by the Client during the month in question reach a significant total amount. The Client is solely responsible for the payment of the Services under the aforementioned conditions. They undertake to register a valid payment method in their Client Account, and to have the funds necessary for the payment of the Services. Subject to the right of withdrawal provided for in the article "Terms specific to Consumers", prices are due in full, and the Client may not claim any refund in the event of non-use, partial use, suspension or discontinuation of the use of the Services before the end of the Usage Period. This is without prejudice to the Client's right to invoke SIMAFRI's liability under the conditions provided for in the article "Liability" below, if this situation results from a failure by SIMAFRI to perform its obligations.
6.5. Payment default and late payment. In the event of payment default or late payment, including partial payment, the Client is liable for late-payment penalties payable from the day following the payment deadline, at an interest rate equal to three times the statutory interest rate. In addition, any payment default or late payment (even partial) of the sums due by the Client in performance of the Contract, persisting more than three (3) calendar days after notification of payment default or late payment sent to the Client by email, entails as of right and without need for any additional notification or formal notice (a) the immediate payability of all the sums remaining due by the Client under the Contract, whatever the payment method provided for, and (b) the possibility for SIMAFRI, immediately and without notice, to suspend all or part of the Client's Services (including those that have been paid for), to refuse any new Order or renewal of Services, and to terminate the Contract as of right, in whole or in part, by email. In the event of payment default or late payment, professional Clients are liable for a fixed recovery cost indemnity of forty (40) euros, without prejudice to SIMAFRI's right to claim, upon justification, additional compensation where the recovery costs incurred exceed the amount of said fixed indemnity.
6.6. Disputes. Any disagreement concerning the invoicing and the nature of the Services must be notified to SIMAFRI's Client Service, via the Client's Management Interface, within one (1) month after the invoice is issued. Failing this, and without prejudice to the Client's right to subsequently dispute the invoicing, the Client is required to pay the unpaid invoices under the conditions provided for in the Contract. In the event of an invoicing failure, SIMAFRI is authorized to regularize said invoices within the limits of the limitation rules in force.
ARTICLE 7: TERM, RENEWAL AND TERMINATION OF THE SERVICES
7.1. Term of the Services. The Contract is entered into for an indefinite period and remains in force as long as the Client uses SIMAFRI Services. The period during which the Client undertakes to use the ordered Services is that applicable to the pricing option selected by the Client at the time of the Order (the "Usage Period"). In the event of fixed-price payment (monthly fixed price, annual fixed price or other), and subject to the article "Terms specific to Consumers", the Client undertakes to use the Services for the entire corresponding period. Failing this, and in particular in the event of suspension or early discontinuation of the use of the Services, the Client remains liable for the fixed price in its entirety and may not claim any refund in this respect. In the event of pay-as-you-go payment, the Services are made available for an indefinite period, and the Client may terminate them at any time in accordance with the terms in force. The renewal of subscription-based Services is carried out tacitly, and the Client may request the termination of their Service(s) by contacting Simafri support by simple email (support@simafri.com) and/or, where applicable, by cancelling the Service directly in the file of the Service(s) concerned in their client area at least 48 hours before the due date.
7.2. Renewal of the Services. The renewal conditions of the Services vary from one type of Service to another. Some renew automatically ("Auto-renew") and others through prior payment by the Client. Where there is an option, it is the Client's responsibility to select the renewal method of their choice. For some Services, Auto-renew is activated by default. Renewal requests by payment are automatically rejected in the event of payment default or irregular payment (in particular an erroneous amount, incomplete payment, payment not bearing the required references, or payment made by a means or procedure not accepted by SIMAFRI). In the case of a renewal paid by cheque or bank transfer, it is the Client's responsibility to request the renewal sufficiently in advance so that the payment is actually received by SIMAFRI and credited to SIMAFRI's bank account before the Service expires. SIMAFRI reserves the right to put an end to a renewal, in particular in the event of the discontinuation of the Service, with a reasonable notice period. The renewal of the Services is the Client's responsibility. SIMAFRI may, as a courtesy, send one or more notifications before and/or after the due date of a renewable service, and/or issue a renewal invoice before and/or after the due date of a renewable service, but SIMAFRI is not obliged to do so. In any event, the Client is required to explicitly request the renewal of their Service and is required to send, on their own initiative, the payment for the renewal of their Service, without SIMAFRI needing to remind them. The Client is in particular required to check that the renewal invoices sent by SIMAFRI are complete and correct, and that no Service to be renewed is missing from them. The Client is required to check that all their renewable Services are up to date and renewed in their SIMAFRI client area.
7.3. Termination for breach. Without prejudice to the other cases of termination provided for in the Contract, in the event of a breach by one of the Parties of all or part of the obligations incumbent upon it, the Services may be terminated by registered letter with acknowledgement of receipt after a notification of the breaches in question has been sent by registered letter with acknowledgement of receipt to the defaulting Party and has remained without effect for more than seven (7) calendar days. Notwithstanding the foregoing, in the event of malicious, unlawful or fraudulent use of the Services, or use made in violation of the rights of a third party, SIMAFRI may, as of right, terminate the Services concerned or the Contract in its entirety, by email and without prior formal notice. This paragraph does not call into question SIMAFRI's right to suspend or interrupt the Services under the conditions provided for in the Contract, in particular in the event of non-compliance with the Terms of Service in force. Terminations for breach are without prejudice to any damages that may be claimed from the defaulting Party.
ARTICLE 8: PROCESSING OF PERSONAL DATA
8.1. Compliance with the applicable regulations. The Parties undertake to comply with the legal and regulatory provisions in force relating to data processing, files and freedoms. The Client, who remains solely responsible for the choice of the Services, ensures that the Services have the characteristics and conditions required to carry out the personal data processing envisaged in the context of the use of the Services, in view of the regulations in force, in particular where the Services are used to process sensitive data (for example, health data). Where SIMAFRI offers Services intended to enable the Client to carry out personal data processing subject to specific legal or regulatory provisions (for example, the hosting of health data), SIMAFRI communicates to the Client the latter's scope of responsibility, as well as the conditions under which SIMAFRI complies with said standards or regulations.
8.2. Processing carried out by or on behalf of the Client.
8.2.1. Responsibility for processing. The Client remains solely responsible for the personal data processing carried out on their own behalf in the context of the Services, whether by themselves, by SIMAFRI or by third parties. Concerning the personal data processing carried out by SIMAFRI on behalf of the Client in the context of the performance of the Services (in particular support services), SIMAFRI acts as a processor solely on the Client's instructions.
8.2.2. Security. SIMAFRI takes, under the conditions provided for in the Contract, all useful precautions to preserve the security and confidentiality of the personal data to which it has access, and in particular to prevent it from being distorted or damaged, or from unauthorized third parties having access to it. In this respect, SIMAFRI undertakes in particular not to access or use the Client's data for purposes other than as required for the performance of the Services (and in particular Support services). SIMAFRI may however be required to communicate said data to judicial and/or administrative authorities, in particular in the context of requisitions. In such a case, and unless a legal provision or an injunction from the competent authority prevents it, SIMAFRI undertakes to inform the Client thereof and to limit the communication of data to that expressly required by said authorities. The Client ensures the security of the resources, systems and applications that they deploy in the context of the use of the Services, and remains in particular responsible for the implementation of flow-filtering systems such as firewalls, the updating of the systems and software deployed, the management of access rights, the configuration of resources, etc. SIMAFRI shall in no event be liable for security incidents related to the use of the Internet, in particular in the event of loss, alteration, destruction, disclosure or unauthorized access to the Client's data or information.
8.3. SIMAFRI Processing. In the context of the Services, SIMAFRI collects the Client's personal data, which is subject to automated processing, for the purposes of (a) managing the SIMAFRI Client relationship (invoicing, assistance and maintenance of the Services, commercial management, archiving, telephony, improvement of the quality, security and performance of the services, debt recovery, etc.), and (b) complying with the regulations applicable to SIMAFRI (in particular legal obligations to retain connection data and user identification data). SIMAFRI undertakes not to use the data thus collected for purposes other than those mentioned above. SIMAFRI may however be required to communicate it to judicial and/or administrative authorities, in particular in the context of requisitions. In such a case, and unless a legal provision prevents it, SIMAFRI undertakes to inform the Client thereof and to limit the communication of data to that expressly required by said authorities. The data processed for the purposes of managing the relationship between the Client and SIMAFRI consists of information such as the surname, first name, postal address, email address and telephone numbers of the Client's staff, and is retained by SIMAFRI for the entire term of the Contract and for the thirty-six (36) months thereafter. User connection and identification data is retained by SIMAFRI for twelve (12) months. The other personal data collected and processed by SIMAFRI in order to comply with its legal obligations is retained in accordance with the applicable law. In the context of the purposes defined above, the Client agrees that the aforementioned personal data concerning them may be transferred by SIMAFRI to its Affiliated Companies involved in the performance of the Contract, including outside the European Union. The latter may however only access this personal data in the context of the aforementioned purposes, and in strict compliance with the Client's rights in terms of personal data protection. The Client has a right of access, rectification and deletion of the aforementioned information concerning them. They may exercise this right by contacting SIMAFRI support. A response will be provided within thirty (30) days of receipt.
ARTICLE 9: CONFIDENTIALITY
9.1. Commitments. Each Party undertakes, concerning the confidential information of the other Party of which it is the recipient or to which it has access in the context of the performance of this Contract: (a) to use said confidential information solely for the purposes of the performance of the Contract, (b) to preserve the confidentiality of said information with the same degree of care as if it were its own confidential information, and (c) to give access to said confidential information only to those of its staff and Affiliated Companies who need to know it in view of their role, provided that these recipients are informed beforehand of the confidential nature of said information, and that they are bound by a confidentiality commitment at least equivalent to this commitment. Each Party is also authorized to communicate the confidential information of the other Party to its advisers provided that they belong to a regulated profession subject to professional secrecy (such as lawyers, chartered accountants or statutory auditors). Each Party undertakes not to disclose the confidential information of the other Party to persons other than those mentioned above without the prior written consent of the other Party, and vouches for the respect of the confidentiality of said information by all the persons to whom it discloses it. The following are considered confidential information: the terms of the Contract and all information communicated between the Parties, or to which the Parties have access in the context of the performance of the Contract, whatever its form and nature (in particular financial and marketing information, trade secrets, know-how, information relating to the security and conditions of use of the Services). For information to be considered confidential, it is not necessary for its confidential nature to be mentioned on the document or other medium containing said information, or for it to be specified at the time the information is disclosed.
9.2. Exceptions. The confidentiality commitments defined above do not apply to information for which the recipient Party can demonstrate that (a) the recipient Party legitimately had knowledge of it, without being obliged to keep it confidential, before the other Party communicated it to them or gave them access to it, (b) it is in the public domain other than as a result of a breach by the recipient Party (or the persons for whom it is responsible) of the confidentiality obligation under this Contract, (c) it was communicated to the recipient Party by a third party in a legitimate manner and with authorization to disclose it, (d) it results from developments carried out by the recipient Party and/or by its staff independently of the performance of the Contract, or (e) the disclosure of said information was authorized by the other Party under the conditions provided for in the Contract. Notwithstanding the foregoing, each Party reserves the right to disclose information received from the other Party (a) to the extent strictly necessary for the defense of its rights, it being specified that, in this case, the confidential information of the other Party is retained for the legal time necessary for the administration of evidence, and may only be disclosed to persons who need to know it in the context of the action or proceedings in question (judges, advisers, etc.), who are subject to professional secrecy or, failing that, bound by a confidentiality agreement, and (b) at the request of a competent administrative or judicial authority, it being specified that, in such a case, the disclosure will be strictly limited to the request of said authority, and that, subject to any legal provision or injunction to the contrary, the recipient Party informs the other Party of said request.
ARTICLE 10: GENERAL PROVISIONS
10.1. Severability. The nullity of one of the clauses of the Contract entered into with SIMAFRI, in particular pursuant to a law, a regulation or following a final decision of a competent court, shall not entail the nullity of the other clauses of the Contract, which shall retain their full effect and scope. In this case, the Parties shall, to the extent possible, replace the annulled provision with a valid provision corresponding to the spirit and purpose of the contractual Terms.
10.2. Headings. The headings of the articles of the contractual terms are intended solely to facilitate references and do not, in themselves, have contractual value or particular meaning.
10.3. Waiver. The fact that SIMAFRI does not avail itself at a given time of any one of these General Terms and/or tolerates a breach by the other Party of any one of the obligations referred to in these General Terms cannot be interpreted as a waiver by SIMAFRI of its right to avail itself subsequently of any one of said Terms.
10.4. Contractual Documents. The Contract consists of the Terms of Service, which constitute the entirety of the Contract entered into between the Client and SIMAFRI, to the exclusion in particular of the Client's general terms and of all other prior documents, agreements or discussions. SIMAFRI may at any time and as of right modify the Terms of Service. These modifications are applicable immediately to all new Orders. Concerning Services in use, the Client is notified by email or via their Management Interface of any modification of the Terms of Service in force. The modifications of the Terms of Service only come into force thirty (30) calendar days after the sending of the aforementioned notification. However, modifications of Third-Party Product Terms and legal or regulatory compliance measures may take effect immediately. Subject to the article "Terms specific to Consumers", where new Terms of Service are unfavorable to the Client, the latter may terminate the impacted Services by registered letter with acknowledgement of receipt or from the form provided for this purpose in their Management Interface, within a maximum period of thirty (30) calendar days from the entry into force of the new Terms of Service.
10.5. Independence. The Parties agree that nothing in the Contract may be interpreted as constituting an agency relationship, a joint venture, a de facto company, an undeclared partnership or any other form of grouping, joint undertaking or association. Each Party remains entirely independent, master of the management of its affairs, and responsible for all of its acts, and alone assumes all the risks related to its activity.
10.6. Assignment of the Contract. Neither Party is authorized to assign this Contract, even partially, without the prior written consent of the other Party. However, by way of derogation from the foregoing, each Party may freely assign all or part of this Contract to its Affiliated Companies. In this case, it shall notify the other Party in writing as soon as possible. The following operations do not fall within the scope of this article and are authorized: (a) changes in shareholding, changes in equity interests and changes of control of either Party, and (b) operations such as mergers, absorptions, transfers of business assets, transfers of activity and other operations entailing a transfer of assets of either Party. If one of the Parties carries out one of the operations mentioned in points (a) and (b) above, it shall inform the other Party. If the operation is carried out for the benefit of a direct competitor of the other Party, the latter is authorized to terminate the Contract as of right and without compensation.
10.7. Communications. For any exchange of information by email, the date and time of SIMAFRI's server shall be authoritative between the Parties. This information shall be retained by SIMAFRI for the entire period of the contractual relationship and for the three (3) years thereafter. Subject to the other communication methods and recipients provided for in the Contract, all notifications, formal notices and other communications provided for in the Contract are deemed to have been validly delivered if they are addressed: - To SIMAFRI: By registered letter with acknowledgement of receipt to the following address: GROUPE SOMME LTD, 24 Saint Georges Street, Port Louis, Mauritius - To the Client: By registered letter with acknowledgement of receipt to the postal address associated with their Client Account, or by email.
10.8. Advertising and promotion. Unless the Client decides otherwise via their Management Interface, SIMAFRI is authorized to refer to the commercial relationship between the Client and SIMAFRI in the context of the usual conduct of its commercial activities with its clients and prospects. The Client grants any other mention of the Client by SIMAFRI, as well as any other use of their distinctive signs (logos, trademarks, etc.), in particular in the context of advertising, public events, conferences and specialized publications on professional markets, or on SIMAFRI's brochures, commercial documents or Website.
10.9. Agreement on evidence. It is expressly agreed that the data from the information system of SIMAFRI or of its subcontractors, such as connection logs, consumption statements, order and payment summaries, Incident management reports or other data, is fully enforceable against the Client and admissible, including in the context of litigation proceedings.
10.10. Computation of time periods. Time periods are calculated in calendar days, and begin to run from the day following their triggering event.
ARTICLE 11: JURISDICTION AND APPLICABLE LAW
11.1. Jurisdiction. In the event of a dispute with a client not considered a Consumer within the meaning of the Consumer Code, express jurisdiction is granted to the competent courts of Port Louis (Mauritius), notwithstanding multiple defendants or third-party claims, including for emergency measures and protective measures, whether in summary proceedings or upon application.
11.2. Applicable law. This contract is governed by the laws of Mauritius. This applies to substantive rules as well as procedural rules, to the exclusion, on the one hand, of the conflict-of-law rules provided for by the laws of Mauritius and, on the other hand, of the provisions of the laws of Mauritius that would be contrary to this Contract.